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Nicola-mod
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Boundary fence maintenance

Customer Question

Boundary fence maintenance
Submitted: 3 years ago.
Category: Property Law
Expert:  Joshua replied 3 years ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

How may I assist you with this please? Do you want to know which fences you should maintain or something else?

JACUSTOMER-tsni7cza- :

Hello Joshua, no, I am aware of which fences are mine, I have a detailed plan of those requirements from the Land Registry. it is the fact that there is a covenant within my title deed which requires that i keep my fences in good order, I am assuming that there is the same requirement within the title deed of my neighbours property which requires the same, he has been asked to make good the fence which borders my property but has taken no action to remedy after eighteen months. I need to know how to enforce the covenant and woh will enforce the said covenant. Many thanks Stephen.

Joshua :

Thanks. Is your property a new build property or did you and your neighbour both buy your properties second hand (for want of a better expression)?

JACUSTOMER-tsni7cza- :

The proerties are 1976 vintage and we are not the original owners.

Joshua :

Thanks. In terms of the fence English law is hopelessly deficient when it comes to responsibility and ownership of boundaries. There is no statutory law and the only way in which obligations are enforced 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 unless it is clear that it is built on their land - sometimes this is clear but often it is not. Unless a binding covenant can be shown to exist which is rare in second-hand properties, 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. 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.

Joshua :

Positive covenants such as that in your deeds (to do something as opposed to "not do something") do not automatically pass to subsequent owners and so will typically lapse after the original owners move on.

Joshua :

It is therefore 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.

JACUSTOMER-tsni7cza- :

The only evidence of the Covenant lies within the Title Deed, as to its current state and whether it has lapsed, I have no idea. I t is / was my assumption that once in the Deed, it remained active. the fence is not dangerous but has collapsed into my garden and is unsightly as is the jungle next door.

Joshua :

Unfortunately that is not the case. Positive covenants do not survive a change of ownership past the original owner> Only negative covenats do.

Joshua :

Is there anything above I can clarify for you?

Expert:  Nicola-mod replied 3 years ago.
Hello,

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Thank you,
Nicola

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