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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Good afternoon, I a query in relation to a recently damaged

Resolved Question:

Good afternoon,
I a query in relation to a recently damaged fence in the strong winds. The fence in question is between my par t of the garden and the ground floor flat. (I live on 1st floor)
I have never really taken any notice of fence, as the downstairs neighbour has always painted and decorated his side of the fence(a trellis and fancy gold letting 'ANNO'). I only painted my side due to his encouragement, this was the first time I have touched this fence since buying my flat over almost 14 yrs ago!
Now the fence is damaged, he has told me it is my responsibility.
I have checked my papers and there is no indication of what fences belong to me. I have seen a T mark against a boundary line, (to my left if looking outside my bedroom window)but it is not within the red line. There is a number against this T and I have seen it mentioned in the papers. I am now assuming this is my responsibility.
The fence on the right and at the back of the garden(separating my ground from the neighbour in the next street as I have a corner property) I have changed and maintained.
I am willing to go halves, but where do I stand if he insist on not contributing?

Thank you
M
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 :

May I ask if you and he other owner are the first owners of your respective properties (i.e. bought them from new) or is this not the case please?

Customer:

no

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. Even if one person can clearly establish who owns a fence or this is not in dispute, unless a binding covenant can be shown to exist which is rare in second-hand properties because positive covenants do not bind purchasers after the original purchasers automatically, 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 :

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.

Joshua :

The neighbour cannot force you to repair or replace the fence against your wishes nor you he.

Joshua :

Is there anything above I can clarify for you?

Customer:

thanks, XXXXX XXXXX reference what can be done to minimise friction about who owes what. What will happen if I want to sell, and is asked which are your fences, as I know people are quite territorial?

Joshua :

ideally you will be able to reach an agreement with your neighbour as generally it would be in both parties interests to maintain some form of boundary structure however there is no requirement for this. If you are unable to reach agreement, it is simply question of either doing nothing no fence between your respective gardens or the person who feels most strongly paying to put up a new fence or repairing the existing one. It very much depends upon the individuals concerned as to how much friction there may or may not be. As and when you come to sell, you will be asked which boundaries you have in practice maintained - it is simply a question of answering this question according to your customary practices

Joshua :

Is there anything else I can help you with?

Customer:

no. thanks that is all.....just hope my neighbour is in a good frame of mind when we discuss the fencing.

Joshua :

If I can assist any further as the situation develops please do no hesitate to let me know.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

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