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Stuart J
Stuart J, Solicitor
Category: Property Law
Satisfied Customers: 22401
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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can I be ordered to remove my fence which is built within my

Customer Question

can I be ordered to remove my fence which is built within my property and not on my boundary line by the house next door owned by a housing association
Submitted: 3 years ago.
Category: Property Law
Expert:  Stuart J replied 3 years ago.

Hello, I am Law Denning and I am a practising solicitor in a High Street practice. I have been an expert on this website in UK law since 2008. During that time, as you appreciate, I have answered thousands of questions from satisfied users on a variety of subjects.

Because we are all in practice with clients and court and other users, I might not always respond in minutes, particularly evenings and weekends. Please bear with me in that case

It is my pleasure to try and assist you with this today. Please bear with me while I gather some further information from you in order for me to be able to advise you fully.

Unless I have all the facts that I need, my answer would not be accurate.

Is the fence down the centre of a shared drive? Does the neighbour have any rights over yr half of the drive documented in the deeds?

We need the full property background please

Customer: replied 3 years ago.

Hi no the drive is a private drive not shared and although unbeknown to us when we purchased the property is was unregistered, land registry came out and registered the property after they had give the housing trust 6 separate dates for any objections of our land being registered, the initially objected but failed to produce any evidence to support their claim and then they sent an email from their solicitor's to ours confirming they had been instructed not to proceed with an objections and to register our land, the property was marketed and sold as a private drive and at no point during the registration of our house and theirs did they mentioned their wish to make our drive a shared drive or any vehicle access, 15 months have gone by and then suddenly we are being informed they want to take us to court and have land registry over turned and that our drive has to become shared and our fence has to come down as they are stating that the old tenants and neighbours agreed to share the drive between them, so can a judge over turn the registration of our property and can we be made to take our fence down which has now been up for nearly 18 months and should they not of requested a shared drive / vehicle access at the time of registration, all our legal documentation states the drive is ours and is not shared, the only thing to note is that our restrictive covenants state that next door has foot access only over a pathway coloured blue which is on our main boundary of which we have kept clear and our fence is not near this access, in fact we have given them more than a pathway amount of space of our land, hope this helps

Expert:  Stuart J replied 3 years ago.
I need the full facts from end to end now please. You didnt say any of this in in yr inital question. Without full facts my answer is likely to be incorrect.
Is there a deed evidencing the agreement to share the drive?
Customer: replied 3 years ago.


no the deeds state the drive is ours and no reference to it being shared as it is private and was sold off by the council with the house in 1981, the trust are saying that they know the drive is ours but as previous neighbours got on and the owners of what is now our house let them use it from time to time then we have to do the same which we have no wish to do, when we first moved in the trust tenant kept parking their car on our drive and blocking it so we could not access it, we then locked our drive gates to stop this from happening as advised by our solicitor who dealt with the sale at that time, the seller of our property and estate agent marketed and sold the property with a private drive, it is not a shared drive on any legal documentation, the trust are simply stating we have to allow their tenants to share our drive while we pay for the full up keep of it as it will add value to their property and as neighbours before had agreed to share before we should carry this on, our gates and fence have now been locked and in place for over 18 months

Expert:  Stuart J replied 3 years ago.
If the tenants used the drive for 20 years or more WITHOUT consent or objection, they then acquire the agreement/easement to allow this under the Prescription Act. But as it was agreed to share the drive , the agreement can be terminated UNLESS it is done by a legal deed which ultimately needs to be registered.
You have simply terminated that agreement.
On these facts, then cannot make you take the fence down nor can they insist on shared access. I have never heard sucha bizzarre reason in my life."they got on well together"!
Get yr solicitor to write telling them to get lost.

Does that answer the question?

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I am on and offline all day so please bear with me.

Customer: replied 3 years ago.


Hi thanks for the info, the trust are stating that they have signed declarations from 2 previous tenants and one neighbour stating that they simply used the drive and had no verbal agreement except a letter from the council agreeing they could share the drive however the council did not own the drive or house which is now our property at that time so I cannot believe the council can just tell someone they can use private owned land surely without having to check with the owners, they donot have a signed declaration of use for the last 7.5 years up to now,


we also have signed declaration's from 3 close neighbours one being next door stating that they know they were given permission to use our drive my the previous owners on occassions, does this help us as it seems our declaration's against theirs, we also have land registry who registered our home is it likely that a judge will over rule their registration and also allow them an injunction to have our fence removed which has been up since June 2011, also if we were to lose this case and the judge awards the drive to be shared can we sue our previous solicitor who dealt with the purchase and the seller who signed legal documents and at no point specified a shared drive

Expert:  Stuart J replied 3 years ago.

If yr neighbours statements directly contradict their neighbours statements and this goes to land Tribunal, you can ask for them to be cross examined on their statements.

Check your house insurance because these issues are often covered by legal expenses insurance.

You don’t have a claim against the solicitor unless the solicitor failed to carry out an enquiry which is unlikely to be the case.

However you might have claim against the sellers if they didn’t declare that the drive was shared on the Sellers Property Info Form. It is a specific question. It would be worth contacting them to see if they ever agreed to share the drive . Their statement is the best that you can get.

Limitation on contract claims last 6 years from date of contract knowledge if later so you might be out of time. After 6 years the solicitors might have destroyed their file.

It is worth getting letter from the sellers.

Does that answer the question?

Can I help further?

Please don't forget to positively rate my answer service (even if it was not what you want to hear).
If you don't rate it positively, then the site keep your deposit and I get 0 for my time. It is imperative that you give my answer a positive rating. I
t doesn’t give me, “a pat on the head”, “good boy” (like ebay), it is my livelihood!
If in ratings you feel that you expected more or it only helped a little, please ask.

I am offline shortly until later today and will pick this up then

Customer: replied 3 years ago.


Hi we have only been here since 2011 so the 6 years is still viable, however our solicitor that dealt with the purchase knew about the problems over our drive and just kept saying they have no prescriptive rights and once our property had been registered said she was closing our case and that was that, so we are having to pay another solicitor to help with this case surely she should complete this process as it started with her?


also my previous question if possible to answer- do judges overturn land registry and surely it has to be taken into account that at the time of registration of both properties should the trust of not raised their alleged prescriptive right and vehicle access query then? also the seller lives abroad and we have never had any contact with them and they do not want to get involved apparently but they clearly did not tick the box on the seller form of the driveway being shared and just mentioned access up the left hand side which as already mentioned is on our covenants of which we have kept clear, they are taking us to trial and want the judge to take an urgent injunction out against us to have our fence removed with immediate effect (18mths later! ) so not urgent and they took 15 months after our fence went up to make contact with us of their complaint and they want us to pay costs of having their property made over inside and out and want us to pay rent since their tenant was no longer in the property as they are stating that they cannot rent their property again until our fence is removed even though the property has plenty of access and their property did not ever come with a drive, what do you think our chances are?

Expert:  Stuart J replied 3 years ago.


Your current solicitor is
best placed to deal with this but will need the original solicitors file. The
original solicitor has a conflict of interest in looking after their own back
rather than looking after your best interest.

A judge can make any decision
it wants including making the land registry change boundaries.



You have now mentioned
however (the first time) that there is some kind of access of the left-hand
side which you have kept clear.



I need to know the exact
wording of that covenant to see whether it affects this.



An 18 month delay is not
unusual.



The rental and refurbishment
of the property is immaterial.



If they are taking you to
court they clearly have more evidence than I have here because based on the
evidence you give me, if I was advising them, I would tell them not to bother.

Customer: replied 3 years ago.


I have mentioned the foot access over the pathway on our main boundary line right at the beginning to you, on our covenants, which is why we built our fence within our property as opposed on our boundary line,


the only evidence we know about is the declarations saying they believe they have built up 20 years usage but as already mentioned they have 3 signed declarations stating they were never given permission to use the drive they just used it and we have 3 signed declarations stating they were given permission that they could occasionally use the drive, we are also aware that in nov last year they contacted land registry to enquire about any rights of way and have included in their evidence that they see no point contacting land registry for an further information as they cannot assist them any further


the exact wording or our covenants is; (this relates to our neighbour)


a free right of way at all times and for all purposes in connection with the use of the neighbouring premises on foot only over the pathway coloured blue on the plan annexed hereto.


for us our covenant states; we shall not place any caravan boat or trailer on the premises between the front elevation of any dwellinghouse erected thereon and any street adjoining the premises and no motor vehicles shall be permitted to be placed or allowed to remain in front of the said elevation otherwise than on our driveway, so it states we can park our cars on our driveway, no reference of next door parking on our drive way, foot access only over the pathway, also


our covenant states that; not to erect or permit to erect any post wall hedge or fence of any description on that part of the premises marked a-b line- this refers to our boundary line which meets next door and again we have not done this we have bought our fence in well away from our boundary line, and again I express this property was never marketed or sold with a shared drive but private, what are your thoughts, we have been told by our local councillor that they are taking us to court as they believe they will win as they have more money and better solicitors than us and believe we have no money and don't have a barrister and people like us don't win against last companies like them although as they are suppose to be a charity organisation being a trust we wonder why they are wasting money like this and wonder if all the board are aware of what is going on-


 

Customer: replied 3 years ago.

also surely if the drive was suppose to be shared then surely the upkeep of costs would be?

Expert:  Stuart J replied 3 years ago.


It appears that they may be
trying to enforce the covenant (for some reason) not to put out fence along the
boundary line. I accept that you have put it slightly to one side and it would
be for the judge to decide in the tribunal whether that is allowed or not.

There is a doctrine of mutual
benefit and burden and if they have shared use then even if the liability to
repair is not documented they are liable for a proportion of the repair in
proportion to their usage.



 



Obviously, I do not have the
plan so I don't not know where the pathway that they have access over is or why
they have access over it.



 



I assume that you do not have
legal expenses insurance on your house insurance that would pay for the costs.



 



I really cannot add any more

Customer: replied 3 years ago.


the pathway is on our boundary line and we have left a lot of space away from this foot access and a-b line in relation to where we have built our fence.


surely our legal documentation and seller info that came with the house sale has to mean something and be legal otherwise what's the point of all the paperwork and legal bodies being involved in a house purchase if someone else can come along and overturn it and get to use our land for nothing, if this had been documented and the drive had been shared we would never of purchased this property, surely all that is legal must mean something

Expert:  Stuart J replied 3 years ago.




I am going to opt out of this for another expert to consider.
Please do not reply or it comes back into my inbox. Another expert will pick it
up at some stage. It is now open to all experts.

I simply cannot answer based on the limited information in front of me.



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