James McLellan and David McLellan v J & D Pierce (Contracts) Limited, 10 November 2015- Encroachment and requirement to remove

This is an Inner House case considering an appeal from the sheriff court. The sheriff granted an order requiring J&D Pierce to remove encroachments it had built on neighbouring land owned by the McLellans in Glengarnock.

J&D Pierce approached the McLellans in 2006 with a view to purchasing land bounding their property (in order to create additional space for their business) but were told by the McLellans on a number of occasions that the land was not for sale. In 2012 the McLellans became aware of a boundary wall encroaching onto their property and their solicitors wrote to J&D Peirce requiring them to cease all works immediately. However, despite this, a building encroaching onto their property by 4 to 6 metres, was erected and roofed by September 2012.

J&D Pierce argued that it was inequitable in all of the circumstances to order them to remove the encroaching building. However, although the sheriff acknowledged that the law recognises an equitable power in the court to refuse to order the removal of encroachments in certain cases[1], she concluded that the company’s encroachment was not in good faith and, as such, declined to exercise that discretion in this case, noting that the effect of doing so would have been to sanction the J&D Pierce’s deliberate action in simply building the on land which they had unsuccessfully attempted to purchase in 2006.

J&D Pierce appealed on the basis that the sheriff’s order was not precise enough to identify exactly what they had to remove from the property pointing to the difficulty in identifying the exact boundaries of the property on the ground. However, the Inner House refused their appeal pointing to the fact that the extent of the encroachments had been agreed (as being 4 to 6 metres) by the parties in a joint minute and noting that the boundaries of both properties are specified in the land certificates and that J&D Pierce had knowledge of what had been built.

The full judgement is available from Scottish Courts here.