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Infringement Claims

In law an infringement is a trespass: it can be either a physical Infringement or an interference with a right-of-way.

Physical Infringement

Example: ‘Weekenders’ and ‘Coldcomfort’ are adjoining houses. Coldcomfort gets planning permission for an extension along its side. They begin work while ‘Weekenders’ are away. They remove the boundary fence and install footings 100mm over the old fence line. ‘Weekenders’ complain. ‘Stop blatherin’ say the owners of Coldcomfort, ‘the wall will be on the boundary line.’

Interference with a Right of Way

Weekenders have a paddock. You reach it by a 4m wide track down the side of Coldcomfort over which Weekenders has a right-of-way, ‘for all purposes with or without vehicles’. Coldcomfort’s extension sticks out 2 feet onto the track. After all, Coldcomfort’s owners say, ‘the track be ours and Great Uncle Perce needs a bath.’

What can Weekenders do?

The footings are a simple infringement; the extension on the right-of-way is an interference trespass. If Weekenders act swiftly, the court will order Coldcomfort to remove the footings and declare that the extension is unlawful – it’s a nuisance. BUT if they delay, and allow the wall to be built, they will not get an order for its removal and instead only damages.

If it is so easy why does it so rarely happen?

First, because most people prefer a local solicitor who is probably a generalist. Such solicitors prefer correspondence to action. After all, it is easier to write a series of letters than to draft the necessary documents to persuade a court.

Second, the wording of a most legal-expenses insurance policies. A household insurance policy may allow for free legal advice but not action. So the policyholder gets plenty of chat: telephone calls, advice, letters, emails. But buried in the small print is a term which provides that the insurer will not fund an application for an injunction.

So, the very thing that Weekenders needs – an early application to the court – will probably not occur. And if it doesn’t then watch out: Coldcomfort will get away with their work.

If no injunction application is brought and Coldcomfort carry on regardless the law may work to their advantage: by the time the matter gets to court – a year leter - Coldcomfort rely upon the principle of acquiescence: they say Weekenders have moaned and sent letters, but have not brought an application. Moreover, they say the building works have continued when they could have been stopped; the loss in value to Weekender’s property is minimal, the cost of demolition and rebuilding is disproportionate.

Moral of the Story

If you have a trespass problem of any kind act swiftly and consult a specialist.

If you are bringing or defending a claim of this kind, by all means, call me on

07796 643 854