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Saturday 3 December 2016

it pays to know the laws of the land

2009 act give you rights to maintain farm's boundaries

Aisling Meehan

Published 27/09/2011 | 05:00

Have you ever encountered a problem with a neighbour when you sought to trim a hedge which separates your field from your neighbour's house?

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Have you ever had words with a neighbouring farmer whose sheep continually break into your silage field but who refuses to put up sheep wire? If so, the provisions of the Land and Conveyancing Law Reform Act 2009 may provide a solution.

The act provides landowners with a right to carry out works on the boundaries between two properties, such as clearing ditches, improving fences and repairing walls subject to certain conditions. In practical terms, the person wishing to carry out the works should notify, negotiate and set out what work is to be done with their neighbour and if you are the neighbour you can specify the terms. However, in the event of a dispute, the matter can be referred to the district court and it will be up to the judge to determine if it is reasonable to allow the works to be carried out.

The act provides that a person who wishes to carry out the works may do so for the purpose of:

•Complying with statutory or planning requirements;

•For the preservation of his property;

•Any other works which will not cause either substantial damage or inconvenience for the adjoining owner;

•Even if they will cause such damage or inconvenience, that it is nevertheless reasonable to carry them out.

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Thus, the act caters for the carrying out of works of a minor nature which would not cause any significant damage or disruption to the neighbouring landowner. The person carrying out the works must make good on all damage caused to the adjoining owner as a consequence of the works or reimburse the adjoining owner with the reasonable costs incurred by him in making good the damage to his own property.

It is the right of the person carrying out the works to decide what option they would go for, ie, make good the damage or reimburse the adjoining owner.

The person carrying out the works shall also pay the adjoining owner the reasonable costs of obtaining professional advice about the likely consequences of the works (such as engineers fees, legal advice etc) as well as reasonable compensation for inconvenience (such as where the works will interfere with the adjoining owner's business).

However, the person who carries out the works can claim a reimbursement from the adjoining owner of such a sum as will take into account the proportionate use or enjoyment which the adjoining owner will get from the works.

A 'party structure' means any arch, ceiling, ditch, fence, floor, hedge, partition, shrub, tree, wall or other structure which divides buildings or lands. It also includes any structure which is situated so close to the boundary line between the lands or buildings that it is not reasonably practical to carry out works to the structure without access to the adjoining building or land.

Take for instance a hedge entirely contained in one property and growing next to a house. The hedge is so close to the house that a tractor and hedgecutter cannot fit between the house and hedge and so the landowner wants to enter his neighbour's field to cut the top of the hedge from the other side. The legislation extends to cater for this situation. The structure in need of work may be situated entirely within one property or may straddle the boundary and be either co-owned or subject to some division of ownership.

Disclaimer: While every care is taken to ensure accuracy of information contained in this article, solicitor and tax consultant Aisling Meehan does not accept responsibility for errors or omissions howsoever arising. Tel: 061 368 412

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