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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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The fence between our neighbours and ourselves is rotting,

Resolved Question:

The fence between our neighbours and ourselves is rotting, and part has blown down. Title deeds give no indication of ownership. Our house, number 3 in the road was built in part of the garden of our neighbour's house, number 1 in the road. The then owners of number 1, about 40 years ago, erected a 6 foot fence to divide off part of their garden from land they wished to develop and obtained planning permission to build a house on this land. Clearly the fence in question existed before our house was built. They sold number 1 the day after they had obtained planning permission to build number 3, and sold number 3 after it had been built.

Present neighbours in number 1 argue that since our predecessor in our house, number 3, maintained the fence for twenty years, the responsibility for maintaining the fence is now ours, as this is the established practice. Is this so, and is there a difference between maintaining and replacing a fence? In maintaining the fence, for which she had no indication as to ownership, or responsibility, could she have been guiltyt of criminal damage. She is now deceased.
Submitted: 2 years ago.
Category: Property Law
Expert:  Joshua replied 2 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 :

Would I be correct to assume that you did not enter into any form of deed of covenant with the next door neighbour from who you are divided by the fence in question please when you bought the property please?

Customer:

No. We can not say what mioght have happened 40 years ago, but there is no record of anu such covenant.

Joshua :

Sorry for the delay. The thread had been locked by one of my colleagues.

Joshua :

From what you say I understand that you have not lived at the property for 40 years. My above query was where you personally had entered into any deed of covenant when you purchased the property with the neighbour? I doubt that you did?

Customer:

No

Joshua :

Thank you. On that basis your neighbour is incorrect in his view that you are responsible...

Joshua :

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 :

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 to the fence between your respective gardens or the person who feels most strongly paying to put up a new fence or repairing the existing one.

Joshua :

If the previous owner of your property did maintain a fence this was her choice and it does not impose any obligation on you. She would not be guilty of criminal damage if she maintained / repaired a fence. In any event even if she was so guilty this would not impact upon you.

Joshua :

Is there anything above I can clarify for you?

Customer:

That is very helpful, thank you. Does the fact that the fence was originally built by the owner of number 1 have any bearing on this matter? Can I come back to you later when I have thought further. Our neighbour is a non-practising barrister who has been advised by a lawyer in his firm that established practice conclusively means that we are responsible for the fence. If we repair the fence can we indicate to him that this does not mean that we accept ownership and responsibility for the fence?

Joshua :

The above doesn't change the position other than if he can prove this (dubious if he could after so long unless he has kept a copy of the invoice for the fence) the fence belongs to him and you could not touch it unless it is overhanging your land in which case you could remove it from your land and return it to him.

Joshua :

Established practice does not form a continuing obligation to maintain. You may wish to ask him to cite authority to support his position if he believes otherwise.

Joshua :

You can offer to repair as a gesture of good will. It would not impose future repairing obligations on you.

Joshua :

Is there anything else I can help you with?

Customer:

Not at the moment thank you

Customer:

Whom are you, and what are your credentials and qualifications?

Joshua :

I am a solicitor in private practice based in the home counties. My practicing certificate can be verified by clicking on my profile. This site verifies our practicing certificates

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

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 please reply back to me though

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