Developers beware: General principles as to the grant of injunctions when enforcing property rights

Abstract

This paper examines the risk of an injunction faced by developers and builders where they carry out work that infringes the property rights of others; the latter usually being neighbouring landowners, or tenants. A ‘property right’ in this paper means, principally, a right under a restrictive covenant, or an easement, or a right inherent in landownership such as the right to prevent a trespass, whether over the land itself, or the strata under, or over it. In the latter class of right it is also important to note that unless the Party Wall etc. Act 1996 is observed, the resulting trespass and other infringements of property rights will often lead to injunctions being granted to stop the work. This is an important warning in cases where the current craze for basements (at least in London) leads to work being done without regard to that Act. The word ‘developer’ is used widely in this paper to include, for example, landowners (both freehold and leasehold) builders, contractors and their agents, as well as funders. The width of such a definition is designed deliberately to show that all those engaged in ‘development’ work must be aware of the risk of injunctions as the natural outcome where property rights are broken. This paper is not directed towards lawyers, but readers who are concerned in development, and who may be ‘developers’ referred to above. It is not a detailed treatise on the law of injunctions, or on the legal costs that arise under them. For this readers must consult specialist advisers. The paper is designed to give readers a steer towards the current state of the law, the risks they face under that law and how to lessen, if not avoid, those risks on a practical level.