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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.
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?
No. We can not say what mioght have happened 40 years ago, but there is no record of anu such covenant.
Sorry for the delay. The thread had been locked by one of my colleagues.
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?
Thank you. On that basis your neighbour is incorrect in his view that you are responsible...
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.
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.
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.
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.
Is there anything above I can clarify for you?
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?
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.
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.
You can offer to repair as a gesture of good will. It would not impose future repairing obligations on you.
Is there anything else I can help you with?
Not at the moment thank you
Whom are you, and what are your credentials and qualifications?
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If I can assist any further as the situation develops please do not hesitate to revert to me
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