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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25426
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Dear Sir Garden Fence Between my private house and Kingston

Resolved Question:

Dear Sir
Garden Fence Between my private house and Kingston council Flats
I bought my house through an estate agent in 1991. the deeds stipulate the Council is responsible this fence between my house and the council flats property. which the Council have acknowledge their corresponding in their email to me dated 12th February for upkeep of this fence. Resent storms have damaged the fence with at least 6 panels broken. the council inform me is currently not carrying out fence repair unless I have children under 7 years old. Surly my deeds are a legal document which protect my right to privacy and security. I have gone through 3 stages of complaints. also I have wrote to local government Ombudsman. Please give your advice. Mr Z. Bashar
Submitted: 3 years ago.
Category: Property Law
Expert:  Joshua replied 3 years ago.

Joshua :

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

Joshua :

For the avoidance of doubt may I confirm with you that you were not the first owner of your property (i.e. new build) please?

Customer:

I bought my house from estate agent acting on behave I think Halifax Bank. the last owner he bought the house from the Kingston Council in 1988.

Joshua :

Thank you. 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. Sometimes the deeds will make it clear as to which property has responsibility for the fence which can infer ownership - this may be the case here - however even then this does not necessarily greatly assist because of what follows...

Joshua :

The difficulty in terms of enforcing maintenance obligations is that even if ownership of the fence is clear and undisputed as appears to be the case here, unless a binding covenant can be shown to exist in the deeds which requires one party to maintain the fence, 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. Positive covenants (to do something) as opposed to negative covenants (not to do something) to not automatically bind future owners of properties. They only bind between the original two owners that covenant with each other in a deed.

Joshua :

There is an exception to this which is that 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) then in those circumstances there is both a common law and statutory basis under which to potentially force the neighbour to rectify the danger.

Joshua :

In the alternative unless you can show that the council entered into a binding covenant with you when you bought the property regardig boundary maintenance which is unlikely it is not possible to enforce any maintenance covenants against them because they do not bind subsequent owners automatically as above. If you can demonstrate that the fence is dangerous to you then you could seek action under thes grounds. In the alternative boundary maintenance typically falls to the individual that feels most strongly about it and acts first regrettably.

Joshua :

Many feel the law is most inadequate in this area, but there is no sign of any prospect of change unfortunately.

Joshua :

Is there anything above I can clarify for you?

Customer:

No think you, it is clear to me now.

Joshua :

A pleasure. I am sorry not to be able to be rather more positive in what i say. Unfortunately councils can be difficult neighbours due to their reluctance to spend money on maintenance (or in deed anything they are not obligated to do) these days.

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