I discovered my neighbour extended into my garden and now wants to do a land swap

Property Clinic: Don’t be fooled into thinking it’s a simple swap – there is much to consider

I have rented out an old house, registered freehold, with a large rear garden, which I inherited. The rear had been extensively overgrown by its boundary hedges. My tenant recently informed me that the owner of an industrial unit backing on to the rear has removed part of the boundary hedge to facilitate an extension to his premises.

When I pointed out the extent of the encroachment, which amounts to around 22sq m, he accepted the situation and indicated an adjacent equal space on his property which he would add to my garden by clearing away the overgrown hedge and building a boundary wall. He does not want to delay his extension as he says it has "gone through the planning process".

His offer appears reasonable, but do I need to formalise this adjustment to the boundary?

You state that the proposed adjustment appears reasonable. Provided that there are no other factors such as valuation issues to be considered, you should only agree to the adjustment if your neighbour agrees, in advance, to formalise it. He should also agree to accept the legal and other costs incurred.

The adjustment, as proposed, involves an exchange of interests. If it is not formalised it will be likely to cause protracted difficulties in the future if you wish to sell your property, especially as the exchange involves a commercial interest, which may have complex title arrangements.

Your solicitor will examine the title to check you are getting freehold title without encumbrances. You will also need to engage a chartered geomatics surveyor to survey the site and prepare a detailed dimensioned map for a deed of exchange and maps suitable for registration purposes.

In advance of the preparation of maps, you will need, with the assistance of your surveyor, to discuss boundary details with your neighbour. This will include determining the nature and ownership of the proposed boundary wall. If you wish to retain its ownership and prevent its future incorporation by your neighbour in a development or support for a security fence, it should be constructed on your side of the new boundary line.

You should also seek reassurance that no part of your neighbour’s proposed extension, such as a roof overhang or drainage pipes, project on to your property and that no window, which may overlook or inhibit a future development on your property, is installed.

An examination of the planning file drawings will indicate if such details are proposed. Overhangs or projections may be facilitated by the inclusion of an additional strip in the proposed land exchange and the construction of a new boundary wall accordingly, across the entire length of the new boundary.

If a window is proposed, you should immediately inform your solicitor. It may be too late to lodge an objection, but the planning application requires information on the ownership of the subject property including the other landowner’s consent if part, or all, of the subject property is not in the ownership of the applicant. He obviously did not comply with this requirement.

In summary, your geomatics surveyor will advise on mapping and related issues and your solicitor will check title and advise on related issues.

Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of the Society of Chartered Surveyors Ireland, scsi.ie