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Remus2004, Barrister
Category: Property Law
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Experience:  Over 5 years in practice.
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Please note my drawings in this letter do not show but can

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Please note my drawings in this letter do not show but can be opened in a separate PDF attachment-

Garden Fence dispute

Our neighbour built a rear extension to his house. The plans showed he intended to build to the boundary – see attached drawings and photographs.

Our neighbour reinstated the fence from his back wall at the time the extension was completed – see photo.

Some two years later our neighbour has decided that he does not like the position of the fence post and maintains the extension was not built to the boundary line and that the fence should be positioned along the new extension wall, which is on our side. This involves the repositioning of the fence post currently attached to his extension, though there is nowhere else to securely reposition it to.

Original layout

Neighbours garden

Our garden

Present layout

Our garden

Proposed layout

We spoke to our surveyor who stated that:

“The fact that Mr XXXX has built up to the boundary with the enclosing wall of his extension, means that there is no obligation for you to replace a pre-existing fence”.

Our neighbour however does not feel that our Chartered Surveyor is qualified to give an opinion as the surveyors main speciality are Party Walls and dismisses his opinion as incorrect. He is unable to offer any alternative explanation though or willing to engage his own surveyors or solicitors to comment.

Additionally we consider that placing a fence along our side of the wall will:

1. Damage our patio in order to resite fence posts.
2. Give us the expense to have to reposition down pipes, gutters etc.
3. Not look very aesthetic with a panel so close to the extension wall.
4. Will lead to future problems as regards XXXXX XXXXX the wall and fence ie debris, damp etc.
5. Is not in accordance with the original plans submitted and approved by the Council.
6. Was not in accordance with the neighbour’s own instructions at the time the extension was built.
7. Is quite simply not required as the side extension wall acts as a suitable separation and not therefore a legal requirement.
8. Will be predominately situated in our own garden and will therefore give rise in the future to overhanging issues as our fascias would then extend across horizontally further than the “new boundary”.

On a different note a fence panel has broken (from the earlier gales) which needs replacing. This we are happy to do, yet our neighbour wants us to give him warning in order to be present and states we must reposition the fence at the same time. Are we obliged to have him present?
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Are you able to email the attachments?
Customer: replied 4 years ago.

Yes no problem. Do you have email address please? Kind regards



You can send it [email protected] but make sure you include a link to this post so the mods know its for me.
Customer: replied 4 years ago.

I sent all the info some time ago by email, and just want to make sure you received it all?

Yes, thanks I've got it. I'm just travelling at the moment but I will be able to consider it later this evening.
Customer: replied 4 years ago.

No problem at all. I was only concerned that the attachments and document with my drawings had eventually got to you.

Thank you for the plans and photographs.

That makes sense now.

Provided the new extension comes up to the boundary, the neighbour cannot insist that there is a fence on your side.

Firstly, he cannot make you put a fence up

Secondly, he cannot put his own fence up on your land. But some reason, it appears that he wants to grab a few extra inches at the corner of his extension because it would mean stepping the existing fence over to line up with the new section alongside the extension.

Apart from the fact that it makes no sense to have the fence in any event because it serves no purpose, it would probably cause problems because rubbish would accumulate between the fence and the building which is likely to cause damp to his building.

I agree with your surveyor completely.

If your surveyor is a chartered surveyor and in addition a party wall expert, he will certainly have enough knowledge to deal with this.

If he wants to do anything about this is going to have to take you to court and if he does take you to court, he is going to have to get a surveyor and his own expert witness. It would appear that at the moment he is just trying to bully you to do what he wants.

I think the reason that he is not so keen on getting his own surveyor is because his own surveyor will tell him exactly what I am telling you and exactly what the party wall surveyors told you.

At this stage, you should have a look here

please refer specifically to pages 7, diagram 4 and paragraph 6 on page 10. It is highly likely therefore if you were to want to attach things to his wall provided they did not cause damage/damp etc you could do so although obviously expect another argument if you were to do that.

With regard to replacing the fence panel, as it is a joint structure, you should really give him notice that you are going to do it.

However the party Wall act contains no penalty for doing so and if you simply do it and he comes back
and it's already done, the reality is that there is nothing he can do about it.

You are not obliged to have him present, you are obliged to give him notice that you are going to do it.

Can I clarify anything for you?

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