Liable for Japanese Knotweed encroachment even if not visible

As most people know, Japanese Knotweed (JKW) is a particularly pernicious weed that can cause considerable damage to buildings and land and is notoriously difficult and expensive to eradicate, not least as it can only be removed by someone licensed to do so. In a recent case, two adjoining property owners whose properties shared a boundary with land owned by Network Rail made a claim in private nuisance again Network Rail due to the presence of Japanese Knotweed within 7m of the boundary.  The bases for their claim were a) the weed encroached on their respective properties, and b) caused a loss of amenity by reducing the value of their properties. The judge found for the claimants on the second basis so Network Rail appealed. The Appeal Court upheld the first ruling but for a different reason: the encroachment of Japanese Knotweed onto their property affected their ability to ‘enjoy the amenity and utility’ of their respective properties (although there was no visible damage); not because it reduced their value. Property values, they ruled, did not fall within the scope of ‘private nuisance’ under which the claim was brought. This case poses a difficult question for landowners: how do they know the plant has encroached if there is no visible sign of its presence? Presumably landowners will have to be extra-vigilant and endeavour to eradicate the weed if there is any danger of encroachment onto neighbouring properties, a costly and difficult undertaking.

Which court can determine the true line of a boundary?

Disputes over boundaries are among the most common – and one of the trickiest – areas of law on which we are regularly called upon to advise. Many of the problems that arise are caused by the difficulty of establishing the precise boundary of a property. Although the boundary lines of properties registered at the Land Registry are only an approximation, the Land Registration Act enables applicants to apply to the Land Registry to determine the exact boundary. However, the Act does not make clear which court can rule on the true line of a boundary in a dispute, leading to some confusion over the extent of the powers of the Land Registration Division of the First Tier Tribunal, Property Chamber (FTT). Fortunately, three cases over the past couple of years or so have helped to clarify the position, with the most recent one, Lowe v William Davis, leading to an Upper Tribunal ruling that the FTT did have the power “to decide all the matters in dispute before it”.

Using a right of way with no recorded ownership

Along with boundaries, rights of way can elicit some of the fiercest disputes between neighbours. This is particularly the case with shared access routes that appear to have no recorded ownership but are established as rights of way ‘as of right’ through continuous usage. In Owers v Bailey, the claimants bought a house where the only access route was a track for which there appeared to be no registered owner.  However, the Owers confirmed that they had a ‘prescriptive right’ established by continuous usage for over 40 years. This right was challenged by their neighbour who, after being given temporary permission by the Owers to use the track to access his own property, subsequently threatened to prevent their access if they withdrew their permission. This led to a number of altercations, some of which involved the police being called. The Owers withdrew their permission and Mr Bailey installed gates to impede the Owers access as he had threatened. At court, it was determined that the Owers did have a right of way over the track and Mr Bailey was instructed to remove the gates. The Owers were also awarded damages of £6,500 for loss of amenity and Mr Bailey’s aggressive behaviour towards them.

Purchasing property with another member of the family

It is not unusual for property to be co-owned by family members within a farming family, regardless of whether or not those members are actively involved in the farming business. Often farms have outbuildings which are no longer needed so, particularly with the introduction of permitted development rights to allow the conversion of agricultural buildings for residential use, it makes perfect economic sense for family members to own residential property jointly, either for their own use or to rent out to others. However, before you buy a house with another family member, you should try and be as realistic as possible about what might happen if one of you wants to sell. An honest and open conversation at the outset exploring various scenarios will help to soften the blow if one of you decides to sell early and, hopefully, keep your relationship on an even keel. By incorporating your conclusions in a final agreement before you buy, you can help to make the process of selling much less stressful. Read more...