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.
May I ask on what basis you have determined the exact location of the boundary line please?
Did you discuss the issue with the neighbour before he completed the fence?
Where the fence was before - half way between our kitchen windows (semi detached property)
We knew they were renewing fence but didn't discuss before completed as we work during day and were home when it was dark.
If he accepts that the boundary line is where you say then the position is simple he must move the fence because it amounts to a trespass as to the parts located on or overhanging your property.
If however he disputes the location of the boundary line despite the location of the previous fence, what you have effectively here is the potential for a boundary dispute. If there is a dispute with regards XXXXX XXXXX of the boundary line then the first thing to look at is your title plan which you can obtain from the land registry if you do not already have it. Occasionally though not often measurements can appear on the plan. Where this is the case the measurements will be legally binding. More often than not however the plan will contain no measurements but will be expressed to be for the purpose of identification only.
In these circumstances the plan is, whilst drawn to scale, only for the purpose of identification and will not necessarily establish the exact location of the boundary line very precisely. Where this is the case you can either agree between you where the boundary line lies or failing which you would need to resolve the matter either using the RICS boundary resolution service or through the land Registry adjudicator or alternatively the County Court.
It can often be difficult to determine the exact position of a boundary in terms of centimeters or inches but a plan should enable identification of land in terms of several feet usually. As above, properties are generally registered with a plan for identification purposes showing the general position of a boundary. Sometimes it can be relatively straightforward to determine the location of the boundary by reference to another structure such as the house but not always and even then not necessarily with the degree of accuracy that may be required.
If you are unable to agree the location of the boundary line, you can ask the Land Registry to determine the boundary on the title plans by instructing a surveyor to prepare a a very precise plan showing the exact line of the boundary in the surveyors opinion. You will need to use a RICS qualified surveyor to draw up a plan. You then complete form DB (link below) and send to the Land Registry who will inspect the same and serve a notice on your neighbour offering him the opportunity to object to their proposals. You can include the evidence such as you have with your application and can show this to your surveyor when he is preparing his plan.
There is a fee of £90.
If your neighbour agrees to this proposal you can share the cost of a surveyor. If she refuses then this amounts to a boundary dispute which can be determined by the Land Registry Adjudicator. If the boundary is determined in the above manner then your title deeds will be updated with precise measurements which are legally binding going forward.
There is no dispute over boundary as neighbour said he put the upright posts half way over this. But the braces and fence panels are on our propery.
If however the neighbour agrees that the fence is located or overhaning your property then the position is more straightforward. You can either agree between you that the fence is moved back or if he refuses then you can if necessary apply for a court order to order him to do so. If you are considering doing this ideally you would obtain written acknowledgement from him that defence is overhanging or located on your land because even though you do not consider at present that there is a dispute about the location of the boundary, you could potentially find that if you were to apply for the above court order, the neighbour may decide that he will dispute the location of the boundary which could jepardise the granting of an order.
if you are not able to agree amicably, you may wish to consider writing to your neighbour advising the parts of the fence that are overhanging and located on your land and requesting that he removes the same within 10 days. If you have acknowledgement from him that he accepts the location of the boundary (i.e. this is not in dispute as you say) that if you wished, you could then proceed to apply for a court order requiring him to remove the same. If you wished to do so, you would need form N16A
Is there anything above I can clarify for you?
Thank you for your help. Because they don't wish to talk about the situation we will go an see our solictor but your advice has put our minds at rest and we will be able to sleep at night until we get our appointment.
I am glad it is of some assistance. If I can assist any further as the situation develops please do not hesitate to revert to me
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