It is common for a house’s gutters, eaves and facia to stick out further than the walls. But what if your wall is on the boundary between your and your neighbour’s house, so the gutters overhang the boundary? Do you have a right for them to remain? And if your neighbour’s gutters or eaves overhang your land, can you get them removed?
It is a well established principle that you own the airspace above your land, so if your neighbour’s gutters overhang your land then they may be a trespass, even if you cannot reach them or they don’t interfere with the day to day use of your land.
Land Registry
Conversely, the Land Registry Practice Guide 40 – Supplement 3, sets out the legal presumption that a property includes any projections over (or under) the boundary.
These days, it is rare to obtain planning permission to build right up to the boundary, so in most cases, the offending gutters and so on have probably been in place for some while. But if your house is in a recent development, then the developer may have built houses close to or on the boundary in order to fit in as many as possible. Developers can do this where they own both plots when they build.
Land Registration Act 2002
If there is an overhang, the following principles can legitimise what would otherwise be a trespass:
- The deeds to the house may specifically provide a right for them to be there;
- If the overhanging gutters have been in place for over 20 years, then the owner may have acquired a prescriptive right for them to be there. In certain circumstances, use of a neighbour’s land can be acquired by right through long usage. It is possible to acquire a right to drain rainwater through overhanging gutters;
- If they have been in place at least 12 years, then it is possible to acquire actual ownership of the airspace that they occupy. The new rules on adverse possession in the Land Registration Act 2002 make this less likely, unless the gutters were in place at least as far back as 1991. However, it is possible to acquire adverse possession of a piece of airspace, even if the ground below has not been possessed;
- If the projections have been in place for some time, or are part of a development, then it is arguable that the land bought included the overhang into the neighbouring airspace. This gives rise to a boundary that is different above the ground from on it, but that is in theory possible – and in practice even desirable – to allow gutters to remain.
Trespass
If your neighbour has recently installed overhanging gutters, then the position is probably quite different, as all of the above require them to be in place for some time or a specific granted right.
If you have gutters in your airspace that have no right to be there, then it may be that you can insist on their removal. They are a trespass and, as a last resort, a court has the power to order an injunction to remove them. If you are building a new extension or property very close to or on the boundary, you need to consider whether you have you left room for any guttering, etc.
A word of caution is necessary here, however: a gutter overhanging many feet up in the air may be considered by the court as a trivial trespass. Unless you can show some real harm or serious implication requiring its removal, then the court may not order its removal and can penalise parties for bringing trivial cases.
So unless there is a serious problem (perhaps the gutters are poorly maintained and causing damage to your property or so large that they restrict development of your land), you should consider whether to simply let it be.
For more information on boundary disputes, any of the matters raised in this article or on civil litigation matters in general, please contact Lyons Davidson’s Civil Litigation team by telephoning 0117 904 6000.
