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 was the other party to the 2005 deed the owner of property 1 please?
No - the 2005 Title refers to property 2
Thank you - I note as much from your question. There will be another party to the transfer of property 2 - i.e. the seller and the buyer. Is the seller (transferor) the owner of property 1 please or someone else?
It is complicated! The Donor owned all the land and made a beneficial settlement of Land for property 1 to the Donee which was given a new LR reference number.. The witnessed agreement was originally included in the Donors Title Deeds. When the Donor died the Land was purchased by a development company which built property 2 and transferred it under the original Donor Title number. All the adjacent properties (including property 2) have identical fence responsibilities but the owner of property 2 claims that the 1970 Donor -Donee agreement for 'his' fence overides his responsibity.
I am just absorbing the above.
Finally do you have the wording of the covenant regarding the fence from the 1970 settlement?
The Donee hereby covenants with the Donor to erect and forever hereafter maintain a boundary fence on the southern side onthe plot of land hereby conveyed to the reasonable satisfaction of the Donor.
thank you. The position is that from what you say, there was a binding covenant following the 1970 settlement between the donee (owner) of property one and the then owner of property to. The covenant is a positive covenant (to do something) as opposed to the negative covenant (not to do something) and accordingly is binding between the original parties to the settlement; however positive covenants do not bind successors in title. Only negative covenants bind successors in title and accordingly, once the Donor died and the developer purchased the land, the 1970 covenant would no longer have been enforceable because a positive covenant does not bind the development company as a successor in title nor indeed any future successors in title
accordingly, unfortunately the 1970 positive covenant would not appear to bind the current owner of property to
*to = two
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 as above. 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.
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. The neighbour cannot force you to repair or replace the fence against your wishes nor you he.
is there anything above I can clarify for you?
No thank you Joshua. Brilliant service and very grateful for your advice.