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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Dear Sir/Madam, I have an issue regarding a boundary between

Resolved Question:

Dear Sir/Madam,

I have an issue regarding a boundary between me and my neighbour and I wanted to know if I am liable.

Background detail

The boundary 'fence' in question is to be maintained by my neighbour Alan as it is stated in the title deeds:
That the Purchaser will at all times hereafter maintain on the North East and West sides of the said land a suitable boundary fence of such height and description as shall be approved of by the Vendor

Now my neighbour has agreed it is his fence to maintain. I recommended a slat fence with H-strut supports as his 'garden' is a rubble heap and eyesore that I'd rather not see. He has agreed to the choice of fence panels and to erect the new fence. In fact, he has already bought the H-struts.

However, my garden sits above his (and so does the garden to the west of mine, whose boundary fence I am responsible for), Alan has stated that he is unhappy to sit the fence at his garden level because it will rot with the ground on my side touching it. He has asked me to cover the costs of 'retaining my land' so he can put a fence there. I have informed him that the fence can either be built starting at the height of my garden (i.e. no land retention) or he could use two ‘gravel boards’ (concrete planks) to sit on top of each other between the concrete H-posts to do the retaining and then put the slat fence on these (i.e. use the concrete posts and gravel boards to do the retaining and then sit the slat fence on top in level with my soil/land).

I suggested that it is his responsibility to retain the land as well as the fence (and thus, I assume mine between my house and my neighbour to the North West) because the deeds say it is his fence to maintain. Alan disagrees and says only the fence on the ground is his to maintain and that the retaining of my land is my responsibility.

I would like to know if the in law it is his responsibility or not to retain the land below the fence?

The Oxford Dictionary of English states a fence either prevents or controls access or escape. Hence, as (his) Title deeds state it is his fence to maintain, am I correct in thinking it is also his responsibility to make sure the land is retained and doesn't slip into his property (prevent access/exclude something e.g. soil)?
At the bottom of the garden a small portion of our land is retained by a corrugated sheet of metal held in position with metal posts. I do not know who made it or when it was made but the sheet faces our side and it 'looks' to have been built from his side.

Your advice would be dearly appreciated as well as guidance on how to proceed.

Yours faithfully,

Toby
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 your neighbour are the original parties to the deed you refer to that requires him to maintain the fence or if this deed was made between previous owners of your properties please?

Customer:

The Title Deeds that came with the property state:

Customer:

That the Purchaser will at all times hereafter maintain on the North East and West sides of the said land a suitable boundary fence of such height and description as shall be approved of by the Vendor

Customer:

This is the official deed from the Land Registry and is on old paper. It is the original deed to my house.

Joshua :

Thanks. For the avoidance of doubt I believe I am correct to conclude from what you say that you are not the original owner of the house - i.e. from new build?

Customer:

No. The house is built circa 1920s I believe. We bought it in I think 2006. I also think the neighbour in question believes his house to have been built before ours too (that is what I gather from a passing conversation 5 years ago).

Joshua :

Thanks. In this case you need to be rather cautious in how you deal with the neighbour. 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 such as the one you refer to which easily lapse because positive covenants such as the one you refer to do not automatically bind future owners of the properties unless a further deed of covenant is entered into between new owners which would be very unusual and you would know if you had done so here.

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 as above 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 unfortunately 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.

Customer:

As stated, the fence they admit to owning and needing to maintain. Does this also mean they must retain the land (if they are responsible for the fence)?

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.In your circumstances it may not be wise to advise the neighbour that the covenant is unlikely to be binding but equally in light of the above knowledge, it may equally be sensible not to push him too far as ultimately he is unlikely to have to do anything and ideally he would not be pushed so as to decide to seek legal advice himself on the issue.

Customer:

What if there is precedence? e.g. the whole row of houses. What if further up the row the people who maintain the fence have accepted responsibility for the land retention? Could I use this as reason for him to retain the land?

Joshua :

That he is agreeing to maintain the fence is undoubtedly positive. Do remember however that this is likely to be entirely optional on his part in that he would be free to change his mind before completing the work. Precedence of other neighbours agreements would not bind you or your neighbour. The position with regards XXXXX XXXXX land is also not straightforward as follows...

Customer:

Attached is the title deed in question:

Joshua :

Again with regard to retaining land, there is no statutory authority or law that assists with defining responsibility for retaining land but there is some guidance in common law decisions which point to relevant issues being how the land came to be higher in the first place-i.e. is it naturally higher or was the land artificially raised or conversely the lower land artificially lowered.

Joshua :

If one can show who raised the land or conversely who lowered the land, it would usually be at that stage the person raising or lowering (or the person that then owns that land) that would be responsible for installing and maintaining a retaining wall or structure. Fast forwarding years down the line however if the position is not made clear in your title deeds, it is not always entirely clear what transpired. A surveyor can sometimes assist in this respect if there is dispute.

Joshua :

Some relevant decisions in the courts that give some guidance are Leakey v National Trust where the Trust was held liable for a landslip of soil from its land due to lack of maintenance. In Sedleigh v Callaghan some event occurring on higher land creating conditions which result in damage resulted in damages being awarded to the owner of the lower land.

Joshua :

The general line that is likely to be followed would be one of presumption that the owner of the higher land is responsible for maintenance of any retaining structure or wall to the extent so as to prevent landslip onto the lower land unless the owner of the higher land can demonstrate that the owner of the lower land was the one that lowered his land artificially so as to give rise to the need for a retaining wall whereby the responsibility roles could be reversed. Having said that, there is no specific authority beyond the above that establish this is the way a court must determine such a dispute should it arise.

Customer:

So it's a grey area. I have no way to figure who stepped the land. However, all the gardens at the back have it.

Customer:

RE: attachment: Couldn't load the jpg of the title deed as the service wouldn't let me

Joshua :

Unfortunately becasue Parliament has never passed legislation on the issue it is a frustrating position. With regards XXXXX XXXXX it is less a grey area than simply a question of who "blinks first" or is most motivated to maintain a fence. Retaining land is a grey area with only limited guidance from the above case law.

Joshua :

The position is improved in modern title deeds which tend to make declarations of party structures but this still has its limitations and is of no assistance here.

Joshua :

You are at least in the fortunate position whereby your neighbour is in principle happy to agree to erect a fence - some people find their neighbour refuses to do anything at all and are powerless to make them. I suspect the answer here will be for you to not illuminate your neighbour on the above information and work with him to agree a compromise that you can both live with in terms of costs and sharing work.

Customer:

It looks like I may blink first then (but I'm worried that sets a precedent). I thought common sense would be for the person to maintain the fence to maintain the wall (with a fence in terms of the Oxford English Dictionary) and then that would apply to me on my west boundary and so on.

Joshua :

No precedent is set in respect of you carrying out any work as no liability can be created unless by formal deed (unless a neighbour were to pay you in some way for maintenance which would be very unusual).

Joshua :

Unfortunately there is some distance between common sense and the law as regards XXXXX XXXXX structures

Joshua :

Is there anything above I can clarify for you any further?

Customer:

In short: there is no precedent for him to retain the land, only the fence (and that might also be debatable so be happy that he's prepared to do that)?

Joshua :

Based on what you say he will not be liable to maintain his fence but is prepared to do so and so. In respect of the retaining land, if you could show that it was a previous owner of his land that lowered the land artificially then there is precedent to provide that you can require him to retain your land. However if the converse is true he can you. Equally often it is difficult to establish who raised or lowered land and in these circumstances it can be difficult to establish liability at all.

Joshua :

Is there anything else I can help you with?

Customer:

No, thank you for your advice.

Joshua :

A pleasure. I hope you can reach an amicable compromise you are both content with.

Customer:

Thank you. Have a lovely afternoon.

Joshua :

And to you. Best wishes

Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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