Can your neighbour stop you building on your own land?

Many people will have stories about the struggle of having neighbours, especially when it comes to boundary rights. Often these stories are little more than grumbles, but what happens when a neighbour takes you to court over you building on your own land?

The case of Soulsby v Jones concerns exactly that. Major Soulsby claimed to have a servitude for the purposes of inspection, maintenance and repairing his property. A servitude is a right over a piece of land for the benefit of another. In this case Major Soulsby was claiming he had a right to use the strip of land belonging to the Joneses. It was on this basis that he hoped to prevent the building of the Jones's extension over the strip of land, as to build on the land would frustrate his right to use it.

The dispute concerned a narrow strip of land, owned by Mr and Mrs Jones that is situated between their house and Major Soulsby's house. The strip of land was at the end of a common passage that was used by both Major Soulsby and the Joneses, but the strip itself was only owned by Mr and Mrs Jones. Major Soulsby would occasionally go onto the strip of land for the purposes of cleaning and maintaining his own property.

In 2016, Mr and Mrs Jones demolished the conservatory on their side of the strip of land and began building an extension to their house which reduced this strip of land significantly. Major Soulsby was not happy about this, which lead to the court action in question.

In court, the judge focused on whether or not a servitude actually existed. If there was no servitude, then Major Soulsby would have no right and could not prevent the extension. Four points were raised:

1. Servitude created via prescription

This is when a piece of land has been used for a particular purpose frequently, over a long period of time (20 years). Only certain types of purposes are accepted as servitudes. Here the judge held the use of the strip was too infrequent, the right was not an accepted type of purpose and the evidence provided by Major Soulsby was not sufficient. Thus, there was no servitude created by prescription.

2. Servitude of necessity

A servitude of necessity is a very specific right often used, for example, when a property is surrounded entirely by another property. In this situation, a servitude of necessity is created because there is no other way to access the property than to have a right of access over the surrounding property.

In this case, the judge did not allow Major Soulsby to claim his servitude of inspection, maintenance and repair to be a necessity. To allow such a servitude would "sterilise the land next to the walls" and would stop any neighbour, current or future, from building on their own land. This goes against the presumption in favour of the freedom of the use of land by the owner.

3. Variation of Servitude

This point concerned the extension once built, and how that may affect any servitude that existed. The judge held that the Joneses could vary a servitude on their land so long as "new access was equally convenient".

In this case, the new access was not equally convenient and so if a servitude did exist it would have been encroached upon by the new extension. If there was a servitude this would have had significant impact on the Joneses, with the court potentially ordering restitution of the strip of land, which would involve removing the extension.

4. Removal of extension

The extension was granted planning permission in April 2017. Major Soulsby asserted his servitude right in January 2018 and the Joneses began work on the extension in the February.

The judge considered the court's ability to exercise discretion in not enforcing heritable rights like the one Major Soulsby claimed. Ultimately she decided that if restoration of the land was impossible or involved unreasonable loss and expense "disproportionate to the advantage gained" then that discretion to not enforce the servitude would be the right course of action.

In this case, she held that the Jones's had failed to act in good faith in the face of Major Soulsby's objection prior to construction and as such she was not persuaded that the loss to the Jones would be "wholly disproportionate" to the advantage gained by restoration of the strip.

Conclusions

The four above points were reinforced at the Appeal. The Appeal Court agreed with the first judge's findings, although it added that in a situation of "true necessity" a landowner is not forbidden from accessing his neighbour's ground.

This case, however, did not meet that requirement. Ultimately, he said, a servitude cannot be created by the facts and circumstances themselves, they require a basis in law.

Lessons learned

This case makes clear a long-held attitude: servitudes are not easily created nor destroyed. It reveals the difficult balancing act between freely using your land and the realities of living in proximity to neighbours. Ultimately, in this case, it was held as not necessary enough to warrant a servitude.

Whether such necessity is better defined in future cases, we will have to see. Until then, as the judge said herself, it was in the interest of good neighbours to permit access, but such permission did not create a servitude.