The recent well covered case of Gueterbock v MacPhail raised some interesting questions for property development on boundaries. This case involves an ongoing dispute between neighbours over a 12 inch strip of land between the Geuterbock house and a new property constructed next door by the MacPhails.
Put simply the Geuterbock’s claim that the new house encroaches onto a passageway owned by them and are seeking an injuction which, if successful, would require their neighbours to take down and rebuild the house wall and fill in part of the basement which it is claimed encroaches even further. Not a cheap prospect!
Suzie Fisher, dispute resolution expert, of Thomson Hayton
“The hearing that has been reported, dealt only with preliminary issues. The main issues are due to be heard later – unless the claim settles. If it does not then the costs will be huge. In cases such as these parties are encouraged to reach a settlement they can both live with, and Mediation is often used to help achieve this.
If the case does go to a final hearing, the Court will need to decide whether the Gueterbocks do own the land which has been built on. This can be difficult, as boundary plans usually only show the “general boundary” between the properties, and the true boundary line is not always clear. In this case there was a passageway between the properties; the question appears to be whether the boundary lay down the middle of the passage, or to one side.
If the Court finds that the MacPhail’s property does indeed encroach on their neighbour’s land it will then need to decide whether it is appropriate to grant the injunction claimed. In lieu of an injunction, the Court has the power to award compensation if that is deemed to be more appropriate, particularly given that the house has now been completed.
Cases such as these are extreme examples of costly neighbour disputes, but
raise a number of interesting legal questions as well as being a cautionary
Published 7 November 2019
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