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LondonlawyerJ, Advocate
Category: Law
Satisfied Customers: 818
Experience:  Solicitor with over 15 years experience.
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My neighbour offered to replace a fence - I think it's mine,

Customer Question

My neighbour offered to replace a fence - I think it's mine, I'm not 100% sure separating our gardens when I moved into my new property. They told me not to worry about payment. We could split it and I could pay them back anytime. I accepted as I thought they were being friendly neighbours. I've since discovered they have moved the boundary by approx 10 cms encroaching on my land. Luckily I have the estate agents report which provides the previous measurements of the garden. They do not admit to doing this. I have refused to pay them asking them to put the fence back to its original position or me hiring someone to put the fence back and splitting any difference in costs. Their answer "I do not give you permission to touch my land ". They have now sent me a demanding letter for half the costs of the fence - which incidentally was done by a family member of theirs - and will be taking me to court. I do not wish to pay them whilst they are in possession of my land. What are my rights here? Do I have to pay? Can I write them a legal letter to put the fence back? If this goes to court will the court view this as 2 separate issues ie payment and encroachment of land?
Submitted: 2 years ago.
Category: Law
Expert:  LondonlawyerJ replied 2 years ago.
Hello. I am a solicitor with 20 years experience. I will try to answer this for you.
In terms of who is responsible for upkeep of the fence it may be that there are T marks on the transfer plan showing who is responsible.
No you have a decent argument that you do not need to pay for the fence. Firstly because the agreement is to pay at any time and is therefore unenforceable. Secondly for the reason of the fence not being built where it should and effectively being the device used for a theft of your land. That would be legitimate reason to refuse to contribute to the costs.
If your neighbours bring an action (presumably in the small claims court) then this will just be an action for money and will not adjudicate the boundary issue.
You may need to bring an action against them separately about this.
Customer: replied 2 years ago.
I need to know my options for taking this forward. And if it's likely the small claim court will ask me to pay the funds. Plus who will be responsible for court costs
Customer: replied 2 years ago.
Also how is the agreement unenforceable? Does the court make a decision on what is a reasonable amount of time to pay even if they said pay at any time.
Customer: replied 2 years ago.
Ie where does the law state this is not enforceable?Looking forward to your response.
Expert:  LondonlawyerJ replied 2 years ago.
1 It is not t all clear that the neighbours would win in the small claims court. They offered to build a border fence and did not do so.
2 there are no orders for costs in the small claims court although you may be ordered to reimburse reasonable expenses if you lose.
3. This is unenforceable because the payment was made to be at any time, ie it is impossible for you to be in breach by not paying.
Customer: replied 2 years ago.
Hi again. Thanks for this. They have moved the fence only by a couple of inches. Do I still have a decent argument?
Expert:  LondonlawyerJ replied 2 years ago.
If it is not where it should be then yes.
Customer: replied 2 years ago.
Understood. Ok. So I have an argument. I'm feeling quite insecure about the whole thing as my neighbour just came to my door. He asked me if I received his letter and then he asked me if I going to pay him the money he thinks I owe him. Very intimidating and I was actually pretty scared. when I told him I had tried to resolve this with him by asking for the fence to be put back to its original place as he's encroached on my land he was fuming. Demanding to know if I was going to pay him. I told him not until he moved the fence back and he was furious. Stormed off. I'm not really sure what to do. Should I seek legal advise and get a solicitors letter to him?
Expert:  LondonlawyerJ replied 2 years ago.
You could do that, or put in writing your position based on what I have told you or wait and see what he does next.
It is really a judgement call for you.
Customer: replied 2 years ago.
Hi again. I'm concerned about the points above, namely: if I say the agreement is unenforceable then I appear as though I never had the intention of paying which is incorrect.I'm also accusing them of theft. If this goes to court and I lose they can sue me for calling them thieves.Would you please be able to provide something that I can write back and not antagonise them but to make it clear that I am willing to pay if the fence is put back to its original position. They do of course have an option to stop all this - and that is to out the fence back where it was. I'm also concerned that I do not have a valid argument if they moved the fence by 2 inches only as they may see this as within the boundary (as there are no set boundaries here other than the land registry drawing which is not clear). It may come down to my word against theirs.
Expert:  LondonlawyerJ replied 2 years ago.
1 No it doesn't.
2 No they can't
3 It may. The HMLR plans are not definitive. Fixing the precise position of disputed boundaries may be difficult but if the old fence had been there for a long time then that is likely to be the true boundary in the absence of evidence to the contrary.