Head 23: 2 Flashcards
(18 cards)
What is encroachment?
Permanent or quasi-permanent possession of part of another’s land without consent.
It is a delict.
Encroachment is always…
Done by things examples include:
1) buildings
2) signs
3) spreading roots / overhanging branches
4) depositing rubbish or other moveable property
Duke of Buccleuch v Magistrates of Edinburgh (1865)
The encroachment in this case were the pillars built on the pavement of Assembly rooms in Edinburgh. The Magistrates of Edinburgh owned the pavement and raised an action to remove the pillars. [Continued below].
*Anderson v Brattisanni’s 1978
Involved a fish and chip shop in Tollcross. The owners of the shop attached an external flue up the tenement wall to take away the smell. The person who owned the tenement wall objected.
Halkerston v Wedderburn (1781)
The defender was ordered to prune the branches of his trees that were overhanging into his neighbours property.
Does it matter if the encroachment is trivial?
In principle it does not matter if the encroachment is trivial - it is still encroachment (however the materiality of the encroachment will affect the remedy):
So a proprietor is not entitled to encroach upon his neighbour’s property even to the extent of driving a nail into it - but the court is unlikely to award you a remedy in respect of such a small encroachment (Leonard v Lindsay & Benzie (1886).
What is the main defence to encroachment?
Main defence is consent which can be express or implied consent (acquiescence) [this is essentially a form of personal bar].
So if the neighbour stands by and watches you building into his land then it is probably too late to object when the building is complete
Duke of Buccleuch (above)
No objection was raised until 30 years after the pillars were erected. The court held this was far too late.
Strathclyde Regional Council v Persimmon Homes (Scotland) Ltd 1996
Persimmon built a new housing development and then constructed an access road to the development but part of that was built on land belonging to the council. However the council had given planning permission and construction consent for the development and the road. Nevertheless the council said it was unaware that the road was partly being built on its property. The court distinguished the public and private law functions of the council. So although it had given consent in public law it had not given consent in private law. [Look up but I guess this means that their private law objection succeeded??]
Does consent / acquiescence transmit against successors?
In theory personal bar is personal (hence the name.) However for encroachment it seems to be that the successor is bound if he or she has notice (express or constructive) of the encroachment when they become owner.
(Brown v Baty 1957
Caledonian Heritable Ltd v Canyon Investments Ltd 2001)
What are the remedies for encroachment?
1) Interdict
2) Removal of encroachment
3) Damages
4) Self-help
1) Interdict for encroachment…
You must move fact because this is preventative.
2) How does the removal of encroachment remedy work?
The court can order a removal of the encroachment.
But court has discretion to refuse remedy, and is likely to do so where (a) encroachment slight (b) perpetrator reasonably believed it to be unobjectionable and (c) some reasonable use of perpetrator’s property depends on encroachment remaining in place:
*Anderson v Brattisanni’s
In this case the wall which the flue was going up was windowless so it couldn’t be seen from the objectors property. And the flue was essential to extract the fumes and smells from the shop so the court accepted that it was impractical for it to be located elsewhere. And without the flue the shop couldn’t function under health and safety law. And the flue had been in place for 9 years and permission for it had been granted by the objector’s predecessor. Thus the court was persuaded by all these reasons not to order removal.
How do damages for encroachment operate?
This is a typical delictual remedy. Damages are particularly suitable if removal is not ordered. The level of damages depends on the circumstances of the case etc.
Sometimes damages may be available for the costs of removing the encroachment.
Strathclyde Regional Council v Persimmon Homes (Scotland) Ltd (above)
Considered earlier - an example where damages were awarded.
Property Selection and Investment Trust Ltd 1998
This case suggests that you can receive damages for the cost of removing the encroachment yourself - so if the person onto who’s land is removes the encroachment him or herself, then they may be entitled to damages for the cost of that - obviously if the court states that the encroachment can stay in place, then this must be respected (nb in the facts of this case the claim didn’t succeed).
How does the self help remedy operate in different circumstances?
Availability depends on ownership of encroachment. Distinguish:
(a) The encroachment may have acceded
⁃ If an encroachment has acceded this means that that part is owned by the neighbour - this means that in principle the neighbour can remove it (and in these circumstances it may be better to remove it without going to court because the court may choose to exercise its discretion and allow the encroachment to stay in place - but you must be careful because the neighbour might argue that personal bar applies).
(b) Overhanging building
⁃ These don’t accede to your land because they only overhang.
(c) Overhanging branches/roots
⁃ In principle you can cut these off, but you probably can’t do it if it will materially damage the tree.
(d) Moveable property
⁃ Moveable property can be removed and returned to the owner.
