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 what structure denoted the boundary prior to the new fence please? Was there for example an existing fence?
Thanks Joshua, it is a hedge then a ditch. My understanding has always been (going back several generations) that the property boundry starts after the ditch, as people used to dig a ditch for drainage on the edge of their property, throw the soil back onto their land and plant a hedge in it. I checked and the land registry website confirms this. They have placed a fence in between the hedge and the ditch and are suggesting they want to make alterations to the ditch.
Thanks - for the avoidance of doubt the ditch is on "their side" of the hedge - correct?
all previous owners have had an agreement that we are responsible for maintenance of the ditch, keeping it clear, etc. if this helps
Thanks. Finally, have you obtained a copy of your title plan from the land registry? If so are there any measurements on the same as to boundaries (this is rare but possible)? Alternatively is it possible to see by reference to any other structures on the plan where the boundary lies from the plan that contradicts the ditch being the boundary?
I did try and explain this verbally when the fence first went up and was told "prove it" so hence sending them a letter with links to the land registry website on boundaries with hedges and ditches
In answer to your question, i have the deeds and plans dating back to late 1800's but they are without measurements. They don't show any ditches or hedges in them at all, just a line showing the boundary in relation to the road and adjoining properties. There is nothing i have seen that contradicts what the land registry website says, but nothing to confirm it either
thank you. There is a common law presumption that in the case of a hedge and a ditch, the boundary line lies on the far side of the ditch from your perspective. This is a rebuttable presumption in that if your neighbours can adduce evidence to the contrary then this presumption can be rebutted however the burden of proof is upon your neighbours rather than you to do so
there are a number of approaches you can take to resolve the position. In terms of simply removing the fence yourself, this is a potentially dangerous approach to take. If the fencing was damaged in the process, you could find yourself facing either a claim for damages or claims of criminal damage by your neighbour. If the boundary were later adjudged to be in the place the neighbour has erected the fence, you could also find yourself liable for costs of replacing the fence in terms of labour costs. however, subject as above, it is one approach you could take them in my experience, the issue would really end there and would likely see deterioration of neighbourly relations further together with potentially retaliatory acts of one form or another.
Thanks Joshua, so at the end of the thirty day period if they do not respond or take down the fence what are my options?
An alternative approach If you are unable to agree the location of the boundary line is to 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. obviously the existence of a hitch and a ditch in view of the common law presumption this raises is very useful evidencing your favour and would be included with the submission of the surveyors plan
There is a fee of £90.
If your neighbour agrees to this proposal you can share the cost of a surveyor. If he 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.
if you decide to proceed with " direct justice" and simply to remove the fence yourself bearing in mind the above caveats in general, in order to reduce the possibility of any claims of criminal damage by your neighbour, it would be sensible to consider sending further letter to your neighbour expressing disappointment at the lack of any response to previous correspondence and advising that you intend to remove the fencing from your land within say 10 days of the date of your letter returning all of the materials to your neighbour advising further that any attempt to place further items on your land will result in an application for an injunction and costs by you in the County Court
In order to make such an application you would need form N16A
Is there anything above I can clarify for you any further?
No, that's been very helpful indeed. I shall send a second letter and present them with some options as you have outlined above and see which they go for. Thanks for the advice, excellent service.