Paul Murphy | The Irish Independent – Farming Independent January 2023
- Created: Wednesday, January 11 2023 12:29
I had a great relationship with my old neighbour, whose farm shares a 1km boundary with mine, and we were always helping each other out.
When he died 20 years ago, his land was rented out to a farmer from the end of the parish. We agreed when he took on the lease that we would jointly maintain the fencing on the boundary.
The new neighbour only pops in once a week and the rest of the time he sends one of the young lads he has working for him to feed the cattle.
The fencing has been damaged a few times and while I try my best to keep it maintained I’m not as fit as I used to be and I don’t think it should be all my responsibility to fix it.
I spent quite a bit of money this year reseeding and his cattle broke in a few times and made a mess of the field in places.
I’d ring him when it happened and he’d send a young lad over, but I’d have the cattle moved back myself and the fence fixed by the time anyone arrived to help.
But I’m getting sick of it. I have said it to him once, the last time I spotted him herding, but he didn’t seem to think there was a problem.
What can I do?
As a general rule, adjoining land-owners will agree to share the work and/or expense involved with the repair and maintenance of shared boundaries on an equal basis.
I would firstly recommend that you engage a solicitor to review the title documents to your land. Title documents will often refer to formal agreements in place in relation to the repair/maintenance of shared boundaries. Such agreements can attach to land and be binding upon successors or assigns in title. (in this case, the leaseholder of the adjoining land). Alternatively, such agreements will exist informally. Was your agreement in writing or less formal?
Next, I recommend that you instruct your solicitor to write to the leaseholder on a formal basis in order to notify him of the issues that have arisen with the shared boundary and of the expense incurred by you to date. The solicitor can also remind the leaseholder of the agreement put in place between you initially and if applicable, inform the leaseholder of any formal agreements contained on title.
The purpose of this letter will be to encourage the leaseholder to engage with you properly in relation to the matter.
If the letter does not prompt a meaningful response from the leaseholder, you may consider a court application.
Chapter 3 of the Land and Conveyancing Law Reform Act 2009 (“the Act”) relates specifically to disputes concerning shared boundaries. The Act describes such boundaries as “party structures” and defines them as including:
“any arch, ceiling, ditch, fence, floor, hedge, partition, shrub, tree, wall or other structure”
The Act permits land-owners to carry out works to a party structure for a variety of reasons, including the preservation of the structure.
The Act also permits a land-owner to seek reimbursement from an adjoining land-owner for any expense incurred in carrying out such works.
If the adjoining land-owner is not forthcoming in making reimbursement for expense incurred, an application can be made to the District Court to recover the amount owed. The District Court can treat the expense incurred as a debt and has jurisdiction to deal with matters where the debt claimed does not exceed €15,000.
Where there is a dispute between you and an adjoining land-owner about works to be undertaken to a party structure, you may also apply to the District Court for a “Works Order”. A Works Order will allow you to carry out works, subject to whatever terms and conditions the court decides. Among other things, a Works Order may:
- Authorise you, or people authorised by you, to enter your neighbour’s building or land for any purpose connected with the works
- Require you to indemnify or give security to your neighbour for damages, costs and expenses caused by or arising from the works or likely to be caused or to arise
Before you issue proceedings, you must consider resolving the issue through meditation. Your solicitor will advise you further on this.
It is important to keep proper records (receipts/ invoices etc) of all expenses arising as a result of the repair/maintenance of the boundary fence and of any expense incurred in resolving damage caused to the land. These records may be relied on in court.
You should also be aware of an offence known as cattle trespass which occurs where cattle stray from land where they are being kept onto neighbouring land and subsequently cause damage to the land. In such circumstances, the person in possession of the cattle will be strictly liable for any damage caused. Strict liability means that it will not be necessary to show that the person in control of the cattle was negligent (at fault) – it is merely necessary to demonstrate that damage was caused. In this context, the term cattle is generally understood to include all type of farm animals, including fowl but not cats, dogs or wild animals.
Article - https://www.independent.ie/business/farming/legal-advice/my-neighbours-cattle-keep-damaging-the-fence-between-our-fields-and-messing-up-my-land-how-do-i-get-him-to-pay-42273752.html
Paul Murphy is a solicitor and trust and estate practitioner with MacSweeney & Company, Solicitors, 22 Eyre Square, Galway (www.macsweeneylaw.com).