Which? Legal and Which? Trusted Traders is working with the Sunday Times to help answer reader questions about their homes. 

Question of the month: Do I have to allow my neighbour access to my garden for works?

'My neighbour has mentioned that they are planning to do some works to their property in the new year and they will require me to give their builders access to my garden to put up scaffolding. They also mentioned something about the party wall - what are my rights in this situation? I get on well with my neighbour and I want to be as accommodating as possible, but I had a new lawn laid in the summer and I am worried about damage'

EB, Derbyshire

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Our expert says:

'Receiving information like this from a neighbour can be alarming and I understand why you would be worried but I hope that my advice can reassure you.

'The first thing to do is to talk to your neighbour and find out more about their plans and what they are asking of you. Disputes arising between neighbours can become unpleasant and are best avoided so I would always recommend that you communicate your concerns to your neighbour informally at first and try to find an amicable resolution. As you have a good relationship, I would hope that such a conversation will result in an arrangement that works for both of you.

'Engaging in any formal dispute or proceedings is usually a last resort, not least because of the significant expense of time and money on legal costs that would probably be necessary. However, I’ve outlined below the legal position so that you understand your rights and protections.

'Generally, a neighbour cannot require access to an adjoining owner’s land in order to undertake works on their property and, in the absence of permission or a right of access for such purposes (which may for instance be located in the deeds of the property), this would be trespass, for which legal remedies are available, such as an injunction to restrain the unlawful activity and damages for any financial loss suffered.'

'For properties in England and Wales, the situation may depend on what works are necessary. The Access to Neighbouring Land Act 1992 (“the 1992 Act”) enables a property owner to apply to the county court for an access order, permitting them to access neighbouring land in order to carry out ‘basic preservation works’.

'Those works: i) must be reasonably necessary for the preservation of the property owner’s land; and ii) cannot be carried out, or would be substantially more difficult to carry out, without entry onto the neighbouring land.

'So for example, if your neighbour needs to undertake repairs to their roof and they can only access this part of the roof from your property, it would be likely that, if you did not agree, they would be able to apply to court for an order under the 1992 Act permitting access.

'The court has the power to set down appropriate terms of an access order, including how and when the work is to be carried out and providing for compensation for any loss or damage caused, which could include damage caused to your lawn, if necessary.

'However, do bear in mind that the 1992 Act only applies for ‘basic preservation works’, so if your neighbour intends to make an improvement or addition, for example an extension, then the 1992 Act will not apply and, if you were opposed, your neighbour may not be able to require you to permit access.

'If access is granted to your neighbour, you may wish to put your home insurer on notice of the circumstances, in case a claim needs to be made in the future.

'If your neighbour intends to undertake works to a party wall (e.g. a wall sitting astride the boundary between you and your neighbour), then the neighbour will need to serve a notice under the Party Wall Act 1996 (the 1996 Act), setting out the scope and detail of the works. The works usually cannot commence for at least two months following service of the notice on you and a response would normally be required within 14 days of service.

'If you either did not respond, or responded and did not agree to the works being undertaken, then a dispute resolution procedure is activated under the 1996 Act, whereby you and your neighbours either jointly instruct a surveyor, or you instruct your own separate surveyors, to draw up a party wall award, which will set out how the works are to be carried out and will also include what measures are to be put in place to preserve your property and to compensate you for damage.

'Usually, if the works are solely for the benefit of the neighbour, they would be responsible for the cost of the works and the surveyor(s).

'Good luck and I hope that you and your neighbour reach an amicable arrangement.'

James Attew, Solicitor, Which? Legal

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