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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 16923
Experience:  I have been practising for 30 years.
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One side of my detached house is in a neighbours garden. We

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One side of my detached house is in a neighbours garden. We require to put a small fence about 10inches from the wall Of the house all the way along to stop weeds and ivy growing up our house and sticking to our render as well as cover our air bricks. We have just repaired it as this has happened and want to avoid it happening again. Our neighbours are totally against this and are arguing our boundaries.
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: no, we have tried to talk to them but they are very aggressive about it and it is very stressful. All we want is a small fender along the side of our house to achieve the two points stayed we are not land grabbing.
JA: Where is the detached house located?
Customer: Brightlingsea essex
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No

Welcome to Just Answer.

I will be happy to assist with your question today. I need sometime to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I havenot forgotten your question.

this is in the middle of the boundary line?

and is this a path?

Customer: replied 5 days ago.
We have a fence at the front of the property and a fence that goes along our back garden. We want to know if we drop a plumb line from the guttering on our house and put the fence Along there if this is within our rights as the guttering obviously sticks out a bit further than our house wall but over their garden. The main house and front fence backs onto the neighbours garden. Or if there is a law of a particular distance that we can have to achieve the desired outcome. We just need evidence that we are correct as they are very patronising and older and feel they know everything, we just want to have it right. The neighbours garden is very long and the end is a long way from their house. They do not maintain the end, hence the reason we want to do this.
We are disappointed at how they are behaving as we have allowed access into their garden many a time for tradesmen etc without any question. They have lived there a long time and don’t want change. We have been here 19 years and our house is very old and was built before any others around it, hence why a bit unusual to be in this position. Hope this all helps.

Firstly I will mention that there is no legal convention that property on one side owns one boundary in the property on the other side owns another. There is also no legal convention that the property that has the “good side” of the fence is the owner or vice versa.

Fences and boundary walls can be in 3 positions.

You need to remember that the boundary is a mythical pencil line on the ground.

So the boundary feature (wall or fence) can straddle the boundary line or can be all on your side oral on the neighbour’s side.

If it is all on the neighbour’s side you cannot touch it and vice versa.

If on the other hand it straddles the boundary both of you can attach things to it but neither of you can demolish it without the consent of the other. Nor could it be rebuilt without the consent of the other.

The reason for this is that anything which is attached to the land becomes part of the land. Therefore anything which straddles the mythical boundary pencil line is half owned by one property and half owned by the other and it’s impossible to separate the two.

It actually doesn’t matter who put the boundary feature up, the half which is on the neighbour’s land becomes the neighbours.

Even if there are T marks on the title deeds denoting responsibility for a boundary feature, that only applies at the date the deeds were drawn, things can change later. Although the marks may impart responsibility, it doesn’t put a liability to keep the boundary feature in good repair unless there is a separate covenant stating so.

So in your case, it really depends whether that 10 inches of land belongs to you or the neighbour because it belongs to the neighbour you cannot do it.

You are entitled to have reasonable access under the Neighbouring Land Act for any work required to maintain/preserve your property.

The Ivy is common-law nuisance because it is literally, on an English dictionary interpretation of the word, nuisance.

If it causes problems then you have a claim against the neighbour in negligence.

It will help if I explain how claims in negligence arise.

There needs to be

1. a duty of care

2. the duty of care needs to be breached

3. as a result of the breach there needs to be loss or injury

4. the loss or injury must be as a result of the breach

5. the loss or injury resulting from the breach must be reasonably foreseeable.

In order for there to be a claim in negligence, all 5 heads have to be satisfied.

Dropping the plumbline from the gutter is a good idea provided it’s accepted that that is where the boundary is because it’s not unknown for the boundary to be the wall and for the gutters and eaves to be trespass/encroachment. If your house has been there for a long time, then it is quite possible that the boundary is the edge of the gutter although if the neighbour doesn’t accept it, you are going to end up in the land tribunal with an argument.

You could get a boundary surveyor to given opinion. That’s likely to cost about GBP800 plus VAT. However you would both need to agree to be bound by the opinion otherwise, it isn’t actually worthless, but it would be good evidence for a land tribunal claim to establish actually where the boundary is.

Apart from the nuisance and negligence issue, this is really a boundary dispute over where the boundary should actually be.

Can I clarify anything else for you?

Please note that my answer is based strictly on the information that you have given me. If you have not given me all the information, then my answer may be incomplete or wrong.

I am happy to answer any specific points arising from this.

If you still need any points clarifying, I will be happy to reply because the thread does not close.

Thank you.

Best wishes.

FES

Customer: replied 5 days ago.
Thankyou. This is what we know really. Our issue is where do we find out exactly where the boundary line is as everything seems so vague. They bought their deeds down and all this shoes is their hatden ending and our house, it does not specify measurements. Our ordinance survey shows our house and there garden again, no measurements. It’s all very vague?

I am glad to help. Obviously, until you tell me what you know, I don’t know how much information you already have or how much you need.

Sometimes, it is the case, the people ask a question and they do indeed already know the answer. In your particular case, there is no magic solution to ascertain actually whether the boundary is the wall or the gutter.

If you look on the land registry, the thickness of the red line around your property is probably going to be the same thickness, on the ground, as the amount of land in issue.

Further, the red rectangle delineating your property will not take into account any gutters.

Customer: replied 4 days ago.
Hello, me again. We have printed off the land registry plans for both property. These both show a straight line from front to back of the property on that side. We already have a fence at the back garden end of the property which runs along another neighbours boundary. We then have two fence panels at the front of our property already on the boundary in question which have been there for years with no problem.Are we in our right to join the two fences up with a complete line of fencing all the way down our boundary line which is in lime with our house and just continuing the back fence along in a straight line. Which according to plans is our boundary. So unless the neighbours are going to stress that the garden fences are all in the wrong place, they have been there for years....... they cannot argue this.I really don’t understand what the issue is with a fence, we are funding it and maintaining it. They just want to keep it as our house wall? ( untidy with all their weeds and ivy growing up it)

Are you able to let me have a sketch and some photographs please?

Customer: replied 4 days ago.
please see attached, this is our house. The neighbours in question are the ones that butt up to our house on the left as you look at picture.
Customer: replied 4 days ago.
This is them, we are the house at the end.
Customer: replied 4 days ago.
This is their garden backing up to ours close up. By looking at it the line runs from the back of our garden all the way along. Our house actually sits at a slight angle to the plot so by following the fence to run at the same angle of the house from the back fence would bring us to the same place at the front where the fence is now.On close inspection I think it does look like the front fence does angle in more.

Thank you for the plans. I’m afraid that I’m sorry to say, these don’t help and it would be for a boundary surveyor and/or a county court judge or Land Tribunal to decide whether you had an easement for the gutters or whether the area under the gutters was your land.

They obviously don’t want you to “acquire” this piece of land so have you asked them whether you could put this fence up, purely on a licence which they could revoke unreasonable notice?

That means that you would never acquire any rights over this land.

F E Smith and other Law Specialists are ready to help you
Customer: replied 4 days ago.
Thank you for your help.