Know your Boundaries. Understanding the Curtilage of your Property
Curtilage is an important concept in the property world. Curtilage is something that is frequently misunderstood, however. Here is a useful explanation of what curtilage is as well as some important issues and problems that occur with curtilage.
What Exactly is Curtilage?
Curtilage is usually considered to be an enclosed piece of land that is immediately next to a property and which belongs to it. The curtilage of a dwelling might be a yard or garden as well as any outbuildings belonging to the property. (Dwelling is a technical term usually used to describe a residential property.)
Curtilage can apply to residential properties where it is known as residential curtilage. It can also apply to other types of property, such as commercial property, too.
Not all properties have a curtilage.
There is no easy legal definition of curtilage. The definition of curtilage differs between the UK and other countries such as the USA.
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In the case of a house the garage, the surrounding garden and the driveway would generally be considered within the curtilage of the building.
If the house had an adjoining fenced field or paddock this might not necessarily be within the curtilage even though it is in the same ownership as the house.
In the case of a farmhouse the house itself, the outbuildings and the farmyard would probably be considered within the curtilage.
The surrounding fields of a farm and any buildings in them would probably not be considered within its curtilage.
What's the Problem?
The main problem with curtilage is that there is no single, clear definition of what curtilage is. Curtilage is often a matter of interpretation. One party may consider that a piece of land or property is within the curtilage of a building and another party may not.
To further complicate the issue the curtilage of a property can change or be changed over time.
Curtilage cannot always be easily identified by looking at a map. Features on the ground, such as walls and fences, may or may not necessarily define curtilage in themselves.
If land or property is separated from a house by a public road or track it cannot usually be considered part of the curtilage of the property as a result.
The lack of a clear definition of curtilage can lead to disputes between land owners and other parties.
How is Curtilage Identified?
A number of factors may be taken into consideration when identifying the curtilage of a building.
Past legal cases have helped to define more clearly what curtilage is and is not. For example, back in 1983 as a result of a court case referred to as Sutcliffe and Others v Calderdale Borough Council the Court of Appeal decided that there were three factors to take into consideration when identifying the curtilage of a property. These were the physical layout of the property, its ownership, past and present, and its use or function past and present.
In Scotland, curtilage is defined under planning guidance as ‘land which is used for the comfortable enjoyment of a building and which serves the purpose of that building in some necessary or reasonably useful way.’
Why Curtilage is Important
Curtilage is important because it can be used to decide what can or cannot be done with a property, and what can and cannot be done without permission.
The rights and restrictions that apply to a property and also apply to its curtilage. Similarly, they do not apply to land that is not part of its curtilage. This can be the case even where it is owned by the same person or on the same title.
A system known as permitted development allows certain things to be done or changes to be made to a building (for example building some extensions) without planning permission if they are within the building’s curtilage. However, if they are not within the curtilage planning permission may be required.
A dispute can occur if, for example, a property owner considers they can make use of permitted development to carry out work or changes because they consider that they are within a building’s curtilage. But the local planning authority does not agree.
If a building is a listed building then it is necessary to get listed building consent from the local planning authority to carry out work on the building, make changes to it or demolish it.
The National Heritage List for England (NHLE) is the official, up-to-date register of all nationally protected historic buildings and sites in England. It shows those buildings and sites which are grade I, grade II and grade II* listed. Scotland and Wales have similar registers.
Listed building status usually applies not only to the listed building but to land and other buildings within its curtilage. In law this applies to listed buildings which predate July 1948.
A dispute can occur if, for example, a property owner considers that they do not need a listed building consent to carry out work on their property because it is outside the listed building’s curtilage. However, the local planning authority considers it is within the curtilage and so listed building consent is needed.
Property owners who are unclear about the curtilage of their property should take expert advice on this from a planning consultant or a property lawyer. This is especially advisable before planning any work on or changes to a property.
In cases where the curtilage of a property is unclear or disputed it may be necessary to ask a court to rule on the matter.