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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We (mother and I) have lived in our home years. When

Resolved Question:

We (mother and I) have lived in our home for ten years. When we purchased our property we had privacy in our garden with decent height fence. Our neighbours moved in 2010 and there has been issues with their fence been blowing down by the strong winds since 2012. The neighbour and his wife keep botching the job to fix it but does not replace it and the same thing keeps reoccurring. It is becoming highly frustrating now as they have recently decided to take the majority of the panels down and replace them with posts that are less than 4ft but no actual fence panels has been erected. This will mean they will still be able to look in our garden and also have visual access into our which has only just happened this past weekend. We have even offered to contribute towards the fence in order for it to get done quickly and effectively and suggested a company that had previously erected our fence in October 2014. At this point we thought we were making good progress and now they are informing us that they won't be doing the 6ft fence they want a 3-4ft fence like they had when they lived in Brixton.
Summary of distress caused:
 My mother and I have no privacy in our garden or inside our home. My mum noticed on Saturday 16th May 2015 that Mark was looking into our property which thoroughly scared her and she became emotional that she feels we no longer can do what we want in our home without being watched. If the 3ft fence does go up they will still have access to look in our property. This is disconcerting as this now means that at night while sitting at the dining room table we have to have the patio light on in order to see what exactly is going on out there as we do not know if they or their guests would be looking into our home.
 My mum (Melanie Gordon) had a triple heart bypass in 2010 and gardening has been a big part of her recovery. However, she has now become so distressed about going outside as she feels she is constantly being watched by them.
 Lauren (wife) had previously mentioned that she likes the weeds growing in her garden. However, as there is no fence ALL the weeds that link into our garden are now encroaching into our flower beds. Which pricks mum through her gardening gloves and irritate her skin when she moves it back over.
 Animals, including their cat is roaming our garden (we are aware this is a natural thing) and fowling everywhere (please see the chronology of Friday 15th May 2015)
 When my mum is in the garden she has heard Mark and Lauren having very loud arguments (which is not the first time) this last happened Friday 15th May 2015. When Mark noticed my mum looking, as there was not fence he slammed his back door closed.
 We believe they smoke marijuana (we can smell it) as there is no fence we have seen them light a joint/spliff. My mum and I are anti-smoking and the smell can be very overpowering.
Overall distress
As I have Sickle Cell and my mum has previously had heart issues (triple heart bypass) the distress of this situation is causing us to become really unwell and quite unhappy about everything. Mark and his wife Lauren has not been accommodating at all since they have moved into their house in 2010. This has been an issue since 2012 (we have pictures that prove this) but Mark does not seem to want to fix it just patch up the fence, which does not help as the constant strong winds keep blowing it down and causing damage to our plants. As it states in the chronology my mum (Melanie Gordon) has suggested to Mark that we would be willing to contribute towards it, even though we should not have to as we only paid for our fence in October 2014 ourselves. Mark has become extremely aggressive (verbally) towards myself and my mum in the past and we have recently taken into account that we have to be mindful of him.
We are now at a loss of what to do as we cannot entertain in our garden due to there currently being no panels and also if they do erect this 3-4ft fence we still have no privacy in our home or garden. PLEASE HELP!!!! IS THERE ANYTHING WE CAN DO LEGALLY?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.

Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

May I clarify that you accept that the fence in question - i.e. the panels themselves - belong to them please because either they have paid for some of them and/or others were erected by the previous owner please?

In principle are you willing to pay for the cost of a higher fence yourselves without contribution from the nieghbour if you cannot reach agreement?

Customer: replied 2 years ago.

Yes, the fence in question belongs to the neighbours. The fence has been erected since before we moved in (2005) and was there a few years prior.

Ideally we would not want to pay for it as we have just erected our fence in 2014 with no financial support, we may consider to contribute towards it.

Do we have any legal right to prevent them from erecting a 3-4ft fence? As in my prior question we will not have any privacy.

Expert:  Joshua replied 2 years ago.
Many thanks for the above. In terms of fences English law is hopelessly deficient when it comes to responsibility and ownership of boundaries which leaves many property owners in a very frustrating position as is the case here.There is no statutory law and the only way in which obligations are enforced against neighbours are by way of covenants which easily lapse. The normal position with most second-hand properties, as opposed to new build properties is that unless either party can prove who erected a wall or fence, neither party can lay claim to it as their own property unless it is clear that it is built on their land - sometimes this is clear but often it is not. Even if one person can clearly establish who owns a fence or this is not in dispute, as is the case here with your neighbour unless a binding covenant can be shown to exist which is rare in second-hand properties because positive covenants ("to do" something such as maintain a fence as opposed to "not to do" something) do not bind owners after the original purchasers automatically, and neither party can enforce the other to maintain a boundary structure or make a claim against the other for damage or removal of the same in the absence of the binding covenant in this respect.The exception to this is if the neighbour accepts the fence is theirs and you can show that the structure is dangerous (as opposed unsightly or not fit for purpose). In those circumstances there is both a common law and statutory basis under which to potentially force the neighbour to rectify the danger but those circumstances are relatively uncommon.It is therefore frustratingly, normally a question of reaching agreement with your neighbours on an informal basis or a case of whoever "blinks first" in terms of repairing or maintaining a boundary if one cannot show who erected a particular fence or structure.In this case in the absence of a binding covenant on the part of your neighbour requiring them to maintain a fence of minimum height which I suspect does not exist or will not be binding if it did unless your neighbours gave you the covenant directly, your neighbour will be under no obligation to erect a fence of a minimu height or maintain a boundary of any kind I regret. Similarly, you are under no obligation to do so either and therefore, frustratingly, it is likely to come down to whoever feels most strongly about leaving the boundary as it is which based on what you say is likely to be you I suspect from what you say. if the fence belongs to them, you can seek permission to attach some close nit trellising or some other material to the top of the fence using post extenders from the existing posts in order to raise its height cheaply without the need to install new fencing panels.Ultimately there is nothing preventing you installing a whole new fence on your side of the fence creating a double boundary structure but obviuously that would cost a not insignificant amount of money which I appreciate you would wish to avoid spending.with regards ***** ***** neighbours smoking cannabis, it is possible to make a complaint to the local authority on the grounds a statutory nuisance if the smoking is reducing your enjoyment of your property and of course, smoking cannabis is illegal in any event. How far this would be taken would depend upon the fact and degree to which they are doing so.I hope the above is of assistance though I am sory it does not give you any concrete legal basis on which to force them to raise the height of your fence but I have a duty to advise you on the basis of the facts and the law and I would not wish to attempt to spin the facts or the law so as to raise any false hopes. Fencing law or more to the point the lack thereof is a very frustrating business. If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Customer: replied 2 years ago.

Thank you for this information, even though it is highly disappointing news.

If we were to place a trellis on top of their fence and post with a winding plant to block them out would we have to gain their permission in doing so? I just want to clarify this point. If we do not ascertain permission would their be repercussions for us?

Expert:  Joshua replied 2 years ago.
If the fence belongs to them and you accept that, a failure to obtain permission would constitute an unlawful interference with their property which they could attempt to claim as criminal damage though I suspect it might struggle with such a complaint. if you are able to fix the trellising to the fence without damaging it which might be possible by using "Postfix" post extenders or something similar then you could consider taking the risk but you could still be asked to remove them if the fence belongs to them so ideally you would do so. If they did not install the posts but have just inserted new panels you could claim that they do not own the posts themselves and you are entitled to affix trellising to them.These things are all possible but they do carry a certain degree of risk, not least the potential for further disputes to arise and if these were resolved by their seeking to force you to remove the trellising, worry would be that this could be money wasted which could have been spent on erecting a fence of your own.If all else fails and you consider you have little choice but to erect your own fence, you could consider erecting just a few panels initially at least, to give you privacy in the most important areas, in particular your property, perhaps adding to the boundary fence line as funds permit.I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful.
Customer: replied 2 years ago.

When we erect our fence on our property which will be higher than theirs. If they paint it, would that be classed criminal damage as they have defaced our fence.

My mum was also wondering if their weeds are encroaching on our property is she able to cut them as they are causing her skin irritation or should she inform them prior to doing so?

Expert:  Joshua replied 2 years ago.
They would need permission to interfere with your fence in any way. It could be classed as criminal damage providing you can show to the police should you involve them that you paid for the fence. You could also issue a claim for remedial work in the county court. The simplest way to do so if this is necessary is by using the courts online issuing service:https://www.moneyclaim.gov.uk/web/mcol/welcomeAny plant or shrub or tree which encroaches or overhangs your property can be cut back. Legally any material you cut back should be returned to the neighbour without causing damage to their land. They do not need to be informed prior to your doing so.Have I been able to help you with all your questions on the above?
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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