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wingrovebuyer
wingrovebuyer, Senior Solicitor
Category: Property Law
Satisfied Customers: 737
Experience:  Bachelor of Laws (Honours); PG Diploma in Law; Member of ALA; 9 years' experience
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If a landowner was required to erect a fence by an Inclosure

Customer Question

If a landowner was required to erect a fence by an Inclosure Act in England in 1857 is there a duty for that landowners and successors to maintain a fence in perpetuity?
Submitted: 3 years ago.
Category: Property Law
Expert:  wingrovebuyer replied 3 years ago.

wingrovebuyer : Hello. It's likely that the Act will make this clear - it should say that the owner and their successors, heirs and assigns will "forever maintain" the boundary or such wording. If it isn't clear, then it remains likely that the liability would carry on down the years and bind successive owners of the original allotment. Unless someone else has assumed responsibility for it - could his have happened?
JACUSTOMER-0djjxoin- :

In this case the fences I am considering are on the boundary between a highway and the adjacent plots of land. I think it unlikely that the highway authority would have taken over responsibility for fencing. The highway was allotted a separate plot of land from the adjacent plots and has remained separate ever since, with no identified owner. The Inclosure Awards required the landholders to fence their land within a period of six months but I have not been able to discover any reference to the maintenance of the fences thereafter.

wingrovebuyer : Thaks.
wingrovebuyer : Thanks.
wingrovebuyer : I'd be surprised if the Adt didn't say that the fences had to be forever maintained thereafter by the allotment holder. However, if it doesn't, I think it can be legally presumed that the fences would be the maintenance responsibility of the allotment owner in question.
wingrovebuyer : This is because the original owner who erected the fence would own the fence itself, and therefore would have assumed responsibility for its continued maintenance, repair and renewal.
JACUSTOMER-0djjxoin- :

Thanks. I will check the Act itself.

wingrovebuyer : Great - do let me know what it says. As I say, if it is silent on ongoing responsibility, it's reasonable to assume the liability remains with the allotment owner.