Neighbour law

Question 1

Corrie v Craig 2013

Answer 1

1. One neighbour decided to apply to the court to have a wall erected between them and their neighbour
2. The neighbour that wanted to build the wall also wanted the court to order that their neighbour contribute to the building of a drystane dyke
3. This requires a particular type of skill and is quite expensive
4. Unsurprisingly, the other neighbour would have preferred to put up a fence (the cheaper option)
5. The court held that this was far more reasonable
6. The neighbour was not entitled to insist upon a drystane dyke as opposed to a fence

Question 2

Newton v Godfrey

Answer 2

1. If either side of the wall begins to deteriorate and the common interest obligation is not complied with, the other owner can carry out the work and recover the cost

Question 3

Thom v Hetherington

Answer 3

1. There was a brick wall on a boundary
2. It was a type two wall that separated two properties
3. The two neighbours were on bad terms
4. The roots of a tree belonging to neighbour one went under the wall and began to destabilise it
5. Neighbour two, in response, poisoned the tree
6. Neighbour two then also became quite worried about neighbour one’s dog
7. He referred to the dog as “uncontrolled” and “neurotic” and said he was worried he might jump over the wall and attack his wife, so he threw bits of coal at it
8. Neighbour one decided they wanted to raise the height of the fence
9. Neighbour one erected a six-foot fence which was nailed to the wall whilst neighbour two was away
10. When neighbour two came back, they objected and went to court
11. They argued that this was an unpermitted alteration because effectively what it was doing was weakening the support provided to the other side of the wall
12. The court disagreed with the second neighbour
13. While in theory there was probably some marginal lessening of support, in cases like these it is always a case of degree
14. According to Lord Jauncey, the presence of the fence up against the wall would only have been actionable if such pressure impaired the strength or interfered with the stability of the wall
15. It must be measurable and not merely negligible
16. “The presence of the fence up against the wall would only have been actionable if such pressure impaired the strength or interfered with the stability of the wall … Such impairment or interference must in my view be measurable and not merely negligible. It is beyond dispute that the owner of one side of a garden wall would be entitled to insert nails or rose ties into the mortar for the purpose of training roses up it. Theoretically every intrusion into the mortar must weaken the bond which it creates between the bricks, but it is equally clear that the court would not restrain the owner from so acting” (per Lord Jauncey)
17. As a result, neighbour one was allowed to keep their fence (to protect their dog and so on)

Question 4

Duke of Buccleuch v Magistrates of Edinburgh

Answer 4

1. Concerned encroaching pillars on George Street
2. The Duke claimed that he was not stopped in building the pillars and the magistrates left it in place, so the encroachment had been acquiesced to (which is why the pillars are still there on George Street)

Question 5

Pollock v Drogo Developments Ltd

Answer 5

1. Pipes can encroach if the owner does not have a servitude to do so

Question 6

Anderson v Brattisanni’s

Answer 6

1. Concerned a chippy in Tollcross
2. They built a flue outside their chip shop up the side of a tenement and attached to the flats above
3. Building onto someone else’s flat was an encroachment
4. The court did not order for the removal of the flue
5. It found that it would have been very difficult to put the flue anywhere else
6. It had also been in place for 9 years before the owner sought removal
7. The court said that it was not really creating great inconvenience

Question 7

Halkerston v Wedderburn

Answer 7

1. One neighbour’s tree overreached into another person’s garden
2. In this case the solution was that the owner was entitled to cut off the branches than hung on their land and simply hand them back to their neighbour

Question 8

Leonard v Lindsay & Benzie

Answer 8

1. “A proprietor is not entitled to encroach upon his neighbour’s property even to the extent of driving a nail into it” (per Lord Young)

Question 9

Strathclyde Regional Council v Persimmon Homes (Scotland) Ltd

Answer 9

1. Persimmon Homes were building properties (a housing estate)
2. They sought planning permissions and were granted it by Strathclyde Council (including planning permissions to build a road across land belonging to Strathclyde Council)
3. However, when they started to build the road, Strathclyde Council objected and said building on their land was an encroachment
4. Strathclyde Council had consented to the building of the road in their public capacity as granting planning permissions, but they had not consented in their private capacity as a landowner

Question 10

McLellan v J & D Pierce

Answer 10

1. Two neighbours lived side by side
2. One neighbour built slightly over the boundary between the two properties
3. The encroached upon neighbour had written to the encroacher’s solicitors telling them where the boundary was
4. Those letters had been ignored
5. The encroaching neighbour then erected a steel fence on what they still thought was their own property (but which actually belonged to the neighbour)
6. The encroached upon neighbour brought an action to court and the court ordered for the removal of the encroachment
7. The neighbour had been warned that they were encroaching but ignored this warning so the encroachment was unreasonable

Question 11

Dunlop v Robertson

Answer 11

1. A solicitor owned a property
2. They did not get on with their neighbour
3. The solicitor raised the height of his wall from 8 feet to 16 feet tall
4. The result of this was that it blocked light from going into the neighbour’s property
5. Two of the three stories no longer received light due to this wall
6. It was argued in court that this was aemulatio vicini
7. The solicitor was able to convince the court that he had raised the wall for reasons of privacy
8. Because there was a benefit conferred on the solicitor, it was not aemulatio vicini in this case
9. By contrast, if raising the wall had only been to spite the neighbour, then it would have been aemulatio vicini

Question 12

More v Boyle

Answer 12

1. There was a pipe running through one proprietor’s land which allowed water to run to the other proprietor’s garden
2. There was no servitude involved
3. The first proprietor decided to cut off the pipe and, as a result, prevented water from reaching the other proprietor’s land
4. It was held that his motivation in doing so was simply to spite the neighbour
5. This was aemulatio vicini and the proprietor was liable for damages