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We’re £30,000 in debt after neighbours accused us of trespass over SIX INCHES of land in fence row
A COUPLE are £30,000 in debt after they were found to have trespassed into their neighbours' garden in a row over a fence.
Philip New, 52, and wife Denise, 47, re-mortgaged their home to cover costs of a boundary dispute with their neighbours in Benfleet, Essex.
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The couple and their two kids, who have lived at the three-bedroom home for 16 years, say the fence between their home and the neighbours has always been in the same position.
The couple replaced the fence panels in 2010, which had become overgrown with weeds and rotted, using the original cement posts which they say have stood for around 50 years.
But it resulted in years of arguing back and forth over six inches of land.
Philip and Denise moved into their home in 2006 and say the border fence was rotting and overgrown with weeds so they decided to clear and replace most of the panels in 2010.
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The feud began two years later when Philip decided to replace the final original fence panels, at which point the neighbours said there was an issue with the boundary.
After years of arguments and letters back and forth, the two couples agreed to do mediation and drew up a written agreement that they would have a land surveyor determine the boundary in 2015.
However, the survey ended up stating that the boundary should run along a drain system, which Philip and Denise says would mean they have to pay to re-route the entire drainage system to move the fence - forcing them to reject the agreement.
Philip said: "It went a bit quiet for about three years and then in 2018 we got a court summons for trespass, damages and the declaration of the boundary line."
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After receiving the court summons, the couple appeared at their first hearing in February 2021.
During the legal process, Philip claims their lawyer uncovered that the surveyor who had carried out the job wasn't a land surveyor but rather was a building surveyor, which the couple believe explains the 'poor' job he did.
Philip said: "If he had looked properly he would've realised that he'd moved the boundary to go directly over a drain run - that's why the fence could never be on this line.
"So not only do we have the reason it was done wrong but the fence can't even move there because you can't put a fence over a drainage system.
"The neighbours still weren't having any of it and just kept going and going."
ENDLESS DISPUTE
The couple lost the case with the judge determining that the agreement was binding and ordering them to abide by the new boundary.
However Philip and Denise then appealed the judgement resulting in a hearing at the High Court just months later, in May 2021.
Their main point of appeal was that the surveyor didn't have jurisdiction under the settlement agreement because he wasn't a land surveyor as stipulated in the agreement.
But the original judge had ruled that the building surveyor was "suitably qualified" and didn't contradict the agreement.
The appeal judge acknowledged that there were "difficulties" with this ruling given that the agreement clearly states 'land surveyor' twice in capital letters, thereby 'unambiguously [requiring] that the expert appointed under it should be a chartered land surveyor'.
But the judge ultimately decided to dismiss the point based on the fact that Philip and Denise accepted the appointment of a surveying company rather than an 'individual expert' as stated in the agreement.
The judge ruled that this showed that the couple agreed to an arrangement that "varied from the strict terms of the agreement".
The appeal, therefore, confirmed that both parties were bound by their settlement agreement and the surveyor report from 2015.
Philip and Denise were then ordered to pay their neighbours' personal costs from the proceedings as well as the legal costs to the company that provided their neighbours with free representation.
The judge also ruled that they weren't permitted to appeal that judgement.
The couple are now waiting for the final assessment of the legal costs as well as trying to come to an out of court settlement with their neighbours in the hopes of reducing the looming financial burden.
They have even put up a second fence by attaching it to their summerhouse and garage - unable to put it in the ground due to the drain - in an attempt to appease their 'selfish' neighbours.
Philip said: "They just want to keep going and make us pay out more. It's like a personal vendetta they have against us just because we have defended our land."
'BAD LOSERS'
The neighbours argued that Philip and Denise moved the fence when they replaced the old panels and said the concrete posts underneath were simply around the drainage system and did not signify where the boundary should be. They also claim the water company would pay for the drainage system to be moved.
They said that they too had been left in tens of thousands of pounds worth of debt as not all of their legal fees had been pro bono so they had had to take out loans with high interest rates.
The neighbours said: "We've had this for 11 years. They've lost and they don't like it, they're very bad losers.
"He said he's not paying one penny to our barrister for all the work he's done in ten years.
"They've lost, they've got to get it into their heads the pair of them."
They explained that they had offered Philip and Denise a settlement to the dispute earlier but they did not take it.
The neighbours said: "It's been through a very senior county court judge who awarded the case to us, they then took it to the high court where a high court judge ruled that the county judge was right and then it's been to one of the highest judges in this country who also threw it out.
"So you're telling me three senior judges have got it wrong but Mr New has got it right? I don't think so.
"This guy is facing a serious hefty bill, he should be dealing with the fence issue.
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"He's lost the case and he won't give us our land back. He's not entitled to put a fence up. We want our fence put back.
"Six inches is a lot of land and equally he has no right to take it."
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