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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10512
Experience:  I have been practising for 30 years.
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My neighbours gate is fixed to my fence on my property,no

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Hello.My neighbours gate is fixed to my fence on my property,no one knows for sure how
long this has been the case,maybe 20 years.I wish to renew the fence,the post will not be in quite the same place.My neighbour insists its that I am responsable for taking it down and refitting.I don't want to do that ,the gate is rotten and will just fall to bits,then she will be after me buy a new gate.
The neighbour is a retired solicitor,so I have to take care.
Kind regard ***** *****more

Hello for clarification so she wants you to keep the original gate and post?

how is it fixed to your fence?

Customer: replied 4 months ago.
Hello yes original gate and post,fixed by two hinges,she also say she can make fix it to her house wall and clasp it to my post
Customer: replied 4 months ago.
Hi .May be I should say the hinges are screwed straight in to my timber posts,will not be able to do this with new post as they are concrete,a timber needs to be fixed to the concrete post for the hinges to be fixed to, the gate will then be too big

Just because the neighbour is a retired solicitor doesn’t necessarily mean that they know anything about land law and the situation here. If they did, they would probably have been a little more specific. If the gate is attached to your fence and your fence is on your property, and it has been there for 20 years or more, and has been there without consent or objection and not in secret, then they can claim an easement under the Prescription Act for it to remain in place. So provided that 20 years has been exceeded they could claim an easement. If however they asked whether it was possible, in the past, to attach the gate, and the you or your predecessor confirmed that it was okay you or your predecessor had objected, all within that 20 years, they cannot claim an easement and you are entitled to tell them to remove it and taken to court if they want and you can ask the court to award costs against them.

It seems unlikely that there was consent (unless you can prove to the contrary) and it seems unlikely that anyone is objected, in that 20 years. So let us assume that there is or that they can claim an easement for it to remain in place.

There is a doctrine of mutual benefit and burden which says that if someone has the benefit of using something, then they also have the burden of repairing it. Therefore, as the neighbour has the benefit of using the post to support the gate, they also have the burden (along with you) of contributing to the maintenance of it and if that means that the post is beyond maintenance, it would be the cost of replacement and would include the cost of any maintenance or modification required to the gate to enable it to be refitted.

If the gate is in such poor condition that it will fall apart, then you are only responsible for the cost of any work required to the gate to facilitate the new post because anything other than that would be betterment and they are responsible for it.

At this point, I would hasten to make the point that if you got into a legal argument over this, it could easily cost 10 grand with no guaranteed outcome. I have given you the middle-of-the-road answer which in my opinion is the view that a judge would take.

If you refuse to replace the gate, the neighbour is then faced with taking you to court which is going to cause the neighbour grief. You are going to have to deal with it also.

I can see no reason why could not simply unfasten the gate, replace the post (you have done your bit) and tell the neighbour that under the doctrine of mutual benefit and burden, their contribution is to rehang the gate.

I will tell you now that the cost of simply putting up a new gate is likely to be a tiny proportion of the cost of arguing over this.

What you might want to do therefore is suggest to the neighbour that a new gate is installed because the old one is rotten and that you would be willing to pay 50% of the cost of that provided the neighbour agrees to pay 50% of the post repair. If you are making any offer like this then at the top of the letter should say Without Prejudice Save as to Costs and then it cannot be produced in court as any admission of any liability. BUT if the neighbour goes to court and the court subsequently awards an amount which is not greater than 50%, the neighbour can be made to pay all the legal costs even though they had a victory of sorts.

I know this is a relatively minor issue but the costs of arguing over a minor issue and the cost of arguing over a major issue are not too dissimilar.

Check your house insurance to see if you have legal expenses cover would pay for the cost of what is, after all, a boundary dispute.

Can I clarify anything else for you? I’m happy to answer any specific points arising from this.

I’m happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.

F E Smith and other Law Specialists are ready to help you
Customer: replied 4 months ago.
Hello Thank you for very quick and easy to understand reply.She moved in 12 years ago,me,3 years,according to her she replaced a gate,which was already there,but as the previous owners are both deceased,we will never know.she is a crafty monkey.
What really makes me angry,is the gate is in such poor condition,she was going to replace it herself.I said to hang on while I renew the fence,as soon as she found that out,she demanded I pay for total refix of old gate Kind regard Mike

I am glad to help. The 20 year period I refer to also includes the period of use by any previous occupier so it comes down to how long the gate or gates have been there in total.

What you might want to do is tell her that unless she agrees to pay half of the cost of the post and the gate, you will replace all the fence and let that bit fall down. Of course, you might not want to do that in the long term you could always hang on for a few months.

Customer: replied 4 months ago.
Thank you

I’m glad to help. Have a good evening and an excellent weekend. Kind regards.

Customer: replied 4 months ago.
Hello. No questions at the moment,your idea of leaving gate and post in isolation seems to have done the trick,she has started to talk,instead of giving orders. Thank you .Mlke

Excellent. I’m glad to help.

Customer: replied 4 months ago.
Back again!.
Although my trouble some neighbour has decided to erect her own free standing gate and post,she has implied my new fence might take away her right to light.Yes the fence will be a bit higher, she installed the bungalows windows back in the summer,they are small for the size of the rooms but look straight into my bungalow.I thought the right to light had to be earned over time. cheers Mike

You will recall that I said earlier that just because the neighbour is a retired solicitor doesn’t necessarily mean that she knows anything about land law. But clearly, she doesn’t. Before the right to light is actionable it has to be reduced by 50% or more and trust me, that’s an awful lot of light and unless the fence is literally a couple of feet from the window and blocking the window, it’s unlikely to be even approaching that much.

On top of that, there is a chance that the right to light is excluded in her deeds and if it is, it doesn’t matter if the room is like the black hole of Calcutta, she can’t do anything about it.

Further, if these are new window apertures (not just new windows but new apertures) she doesn’t acquire the right to light (assuming it isn’t excluded in the deeds) until the new window apertures have been there for 20 years.

Customer: replied 4 months ago.
Thank you once again for your wise words.She is used to bullying people to get her own way, this is just sour grapes.
Kind regards Mike

I am glad to help. I think you are probably right. Didn’t get her own way over the gate so is trying something else to get it you.

What she doesn’t know is that you got the inside line to a source of accurate legal advice for a nominal fee! :-)

Customer: replied 4 months ago.
I don't know how much you are paid,but it's not enough.many thank's Mike

I could not agree more :-).

There is the facility pay bonus/tip if you think that we have gone over above and beyond what you would have expected.

The be honest, the system is extremely fair. We get 50% of whatever you pay if you positively rate our answer. A bonus based upon lots of 5 star ratings. And if you pay us a bonus/tip we get a bigger percentage than 50% of that although I tend to not look at money, it takes care of itself. If we give good answers we get decent bonuses and tips and good feedback and everyone is happy. It may sound corny, but the money is incidental because it follows a good answer and a rapport between us. Kind regards

Customer: replied 3 months ago.
Hi .I hope I had already given you a £10 tip,have I not?or have I given it to the company.Cheers Mike.
PS,How much is another question,? it's about the lawn the fence is stood on.

I do get a large proportion of the tips/bonus but they go into a different account and I don’t normally look at them but the system is extremely reliable and trustworthy. It doesn’t just go to the company. Thank you.

If you put my name at the top of the question thread “For FES only” I will deal with it for you.

You decide on the level of feet that you want to pay. I would be happy to deal with it for you.