Accidently encroaching on your neighbour’s property may be one thing, but what happens when you knowingly build beyond your boundaries? In the case of James McLellan & David McLellan v J & D Pierce (Contracts) Limited that’s just what happened.  J & D Pierce had approached the McLellans in 2006 asking to purchase some property from them, to expand their own neighbouring property.  The McLellans indicated that they were not interested in selling this land.  Some six years later in 2012 J & D Pierce completed a building which backed onto the McLellans’ land and which encroached upon their property by 4 to 6 meters.   

When the McLellans raised a court action against J & D Pierce in respect of this encroachment the action was defended.  J & D Pierce asked the sheriff to exercise their discretion on the basis that it was inequitable to order them to remove the building.  The Sheriff refused to exercise such discretion on the basis of their finding that the company had acted in bad faith having knowingly constructed the building beyond their boundaries when their previous attempts to acquire the area in question had been unsuccessful.  J & D Pierce were accordingly ordered to remove the encroaching building.    

J & D Pierce appealed the Sheriff’s decision on the basis that it was not precise enough to identify exactly what was to be removed. Last week the Inner House of the Court of Session refused the appeal on the basis that the parties had in fact agreed the extent of the encroachment in a joint minute lodged in the original action and that in any event the boundaries of the two properties were clearly specified in the land certificates.   

Whilst the outcome here may have been different had the encroachment been accidental, or relatively insignificant, this decision is a useful reminder to check your boundaries carefully prior to commencing any construction works as failing to do so could land you with the expense not only of a litigation but perhaps also the cost of demolition or reconstruction works.  Whilst we have also encountered the encroaching party being ordered to pay compensation, this is not always a more straightforward remedy as it can still leave title and ownership issues unresolved, leading to difficulties when either party then tries to sell their property.  The best course of action – to keep a watchful eye on your boundaries, don’t overstep them, and take advice quickly if you see any of your neighbours doing so.