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Neighbour's extension is Trespassing

Our neighbours are building an extension which comes over our boundary line and would stop us extending in the future if we chose to. They have not asked for our permission and have told my family that the extension would not affect them when it is.......

Our neighbours are building an extension which comes over our boundary line and would stop us extending in the future if we chose to. They have not asked for our permission and have told my family that the extension would not affect them when it quite obviously does.

I am trying to find out exactly what they need to do and what we can do. Dublin City Council have granted planning permission as I believe they do not rule on boundary lines but our neighbours have been very sly about this matter and have taken advantage of my parents who unfortunately took them at face value.

John Dublin

p.s.. are there any web-sites / agencies  etc where can find out more.

 

Thanks for your question, John.

A few weeks ago we discussed the legal principle in Cullen v Cullen – that is how squatters’ rights can be obtained without the trespasser waiting for the usual 12 years of occupation. The Cullen case laid down that if a land owner sees a neighbour trespassing by building on the owner’s property the owner must act immediately to put a stop to it – if he or she does not then the law may not come to their rescue later.

So John your neighbours must be stopped now or you will be in a whole world of grief. What will happen is if you ever decide to sell your house, the maps on your title deeds won’t match the actual boundaries. The buyer’s solicitor will pick this up and tell his/her client – the buyer- that the title is defective. That means you won’t be able to sell. And more immediately – if you allow your neighbours proceed or at least don’t stop them you will almost certainly be in breach of your mortgage covenants – your bank or building society may see you as allowing the title to become tainted and, may well in the current climate move against you as a defaulter.

Your neighbour is in default in 2 ways – firstly as a trespass on your property and secondly as a breach of planning law. In this latter case it is specifically a breach of the principle laid down in the Frascati case.

The Frascati Case of course involved Frascati House (and grounds) in Blackrock, Co.Dublin and is now the site of the Frascati Shopping Centre. About 20 years ago, speculators applied for planning permission on the property without having any legal title to the property – and indeed without even asking the owner. They were granted permission and then armed with the permission bought the property. Objectors then challenged this action and the Supreme Court held that a developer must have sufficient title to carry out the development in accordance with the permission applied for. If he or she does not have this title then they don’t have the legal capacity to apply for the permission in the first place. So the Planning Authority may have to take title into account. I know you say that planning permission is already granted but for future reference - If a neighbour is applying for planning permission, you can object to Dublin City Council and tell them that he/she does not have sufficient title for the development. You may find other grounds too so include these.

Before you take any legal action, knock on the neighbours’ door and have a friendly word about your concerns of title and trespass. If that doesn’t work then you can do the following:

If planning is already granted but if there is still time to appeal to An Bord Plenala then you may lodge an appeal.

If all time is past you could report the neighbour’s intentions to the Enforcement Section of Dublin City Council and give them copies of your title deeds and maps to prove your point on trespass.

Ultimately though it is up to your family to stop the neighbour’s action if he/she insists on driving a bulldozer through your family legal title and to do this properly you should be represented by your solicitor. Go to your solicitor first and ask about the planning strategy with the Council- you can do this yourself but if a court order is to be obtained it’s best to leave that to your legal advisor.

I have already said to an earlier listener (see the case of the "Lost Deposit on Business Lease" in our NewsTalk section) - "If our listener wins in court, the landlord will have to pay two sets of legal costs which may include 2 architects, 2 surveyors, 2 valuers, 2 sets of lawyers and the listener’s own out of pocket expenses. That should concentrate the landlord’s mind". Similarily with this case.

At the risk of repeating myself over and over John, I cannot over stress the importance of early action and of going to see your solicitor now. It’s worth paying for an initial consultation to develop a strategy. You’ll be sorry if you let it slide.

Finally, John, you asked for some websites:

Dublin City Council Planning section www.dublincity.ie/planning

An Bord Pleanala www.pleanala.ie

Citizens' Information Bureau www.citizensinformation.ie

 

The issues raised in the answer to this NewsTalk listener's question are dealt with in a general way as can only be the case on live radio. Before relying on the advice given in this answer, whether you heard the broadcast or are for the first time reading the issues here please do not rely on the broad advice given. For a detailed professional opinion please consult a qualified legal advisor and for further details read our disclaimer on the Home Page.

The issues raised in the answer to this NewsTalk listener's question are dealt with in a general way as can only be the case on live radio. Before relying on the advice given in this answer, whether you heard the broadcast or are for the first time reading the issues here please do not rely on the broad advice given. For a detailed professional opinion please consult a qualified legal advisor and for further details read our disclaimer on the Home Page.

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