Real-life MMD: Should we pay to shrink our garden?

janiebquick

Do not do anything, agree anything or pay anything until you have consulted a solicitor. If the person who did the conveyancing has missed this, then you may be able to claim against them. But I have to ask - what cost is she asking you to share?

jonsue

I had a neighbour like that.About a tree this time. He died so now I don't have a problem!!

tulips

IIRC (it's nearly 20 years since I did any land law) as others have said, do some research about general boundaries, legal boundaries and the 12 years of adverse possession.

The UK is not a cadastral country so it's all a bit murky:

"...there is no central record of the precise location of boundaries. Instead a general boundaries rule exists. Ordnance Survey maps boundary features but has no power to determine private boundaries. Boundaries can be determined using map evidence in conjunction with other sources. Boundaries and boundary disputes are viewed as being a private matter between landowners and not of public interest."

quoted from
(2008) Why the United Kingdom does not have a cadastre – and does it matter? Richard GROVER, United Kingdom

http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=5&ved=0CF8QFjAE&url=http%3A%2F%2Fwww.fig.net%2Fcommission7%2Fverona_am_2008%2Fpapers%2F12_sept%2F7_2_grover.pdf&ei=DZ3lUKD4C-eC4ATZ2oHQBw&usg=AFQjCNEudkThlYlsBv-9wrob_qmgIv0blA&sig2=CaqxrAU77MxbU-rD-czFVw&bvm=bv.1355534169,d.bGE

fairleee

As others have said, it really comes down to two issues:
1. What is the size of the piece of disputed land?
2. How much do you value a good (or at least hassle-free) relationship with your neighbour?

If it is a sizeable piece of land, the first step is to pay for a proper border survey so you can determine the exact extent of the disputed land - you should do this EVEN if you have no intention of quibbling over ownership. By getting it sorted out properly, now, you save yourself from any future issues, including any disputes if new neighbours move in or when you yourself decide to move on.
Do go and check with your solicitor/conveyancer about whether there were any declared issues at sale - see if this was a dispute that had been raised. If so, and the solicitor didn't follow it up, then you may want to consider further action. Also, have the house revalued with the assumed new land boundaries - if it significantly lowers the value of the house then you may wish to pursue a claim as a misrepresentation of sale - if it was sold to you as the garden being all the land within the fence, then that is misrepresentation. Check out the plans that you would have got from the estate agent - did they include a measurement of the garden? If they did, and it was incorrect, then they would be liable for mis-selling.
As others have said, it is highly unlikely that you would be able to sue your solicitor/conveyancer. They don't go and check that fences match up to boundaries and in all likelihood there will be a clause in their Ts&Cs stating that it is your responsibility to check that any fences etc. are in line with land registry boundaries. However, if you paid someone to do this on your behalf (a surveyor or some such), then you would probably have a claim of negligence against them.
If it isn't a sizeable piece of land (often disputes are over inches), then I would drop the argument forthwith, and just agree to what the neighbour asks. Believe me, it will be cheaper in the long run.

If you want to keep up good relations with your neighbour, then you should still get paid legal advice as to the exact location of the border. Maybe suggest splitting the fees for that surveying 50/50, as it will benefit both of you by insuring you both against any further disputes. Secondly, as others have stated, you have no obligation to put up a fence to mark a boundary. The fence belongs to whoever paid for it in the first place. Find out who paid for it - if it was the previous owner of your house, then presumably when you bought the house you also bought the fence. In which case, it is your fence, but on her property. In which case, I would recommend that you agree to pay any costs to remove it (which you could do yourself for free), but won't pay to replace it if it is going on her land - you aren't obligated to do so. If you want to re-erect a fence on your land, then you are free to do so. A fence doesn't demarcate a border, it should be on the land of whoever owns it - we put up fences when we moved in and had to check on the deeds to make sure that where we were erecting them was on our property. That would be a reasonable way to do it and I don't believe it would cause undying enmity between you and your neighbour - most people are rational.

The best option may well be to enter into negotiations to formally purchase the strip of land. If the neighbour hasn't been using it for all this time then does she really need it? She presumably has also been operating under the assumption that the land belongs to your property. Talk to her about it - maybe she is planning to put up an extension and so does want the extra land, but if not then buying it may be the easiest course of action. It may not be cheap, but it would be cheaper than a boundary dispute, and would settle the issue permanently.

Also, I really recommend keeping correspondence in writing with your neighbour - keep notes of what you discuss in your meetings together, and then send a letter summarising what you discussed. This could be useful. Make sure the letters are dispassionate, e.g. "Dear [Neighbour's name], As discussed in our meeting on [date] at [time], we raised the following issues and made the following points. We agreed to do [whatever], and I will follow up with you shortly. All the best, etc."

So, to conclude, regardless of whatever you want to do, the first step is to pay for legal advice to ensure that whatever solution you plump for will resolve the dispute. Secondly, decide how much you want to hold onto the land, and determine if there is any significant financial loss to yourself in the value of your home - if so then it is worth seeing if you can open a claim against the estate agent or surveyor (if you paid for one). Thirdly, keep all dialogue dispassionate and productive with your neighbour. By the sounds of it, the land is hers, so you are probably the one who will lose out most if this becomes a protracted dispute.

Lastly, to answer the 'moral' dimension - no, you are under no moral obligation to pay for a new fence. You weren't responsible for erecting it (if you were, then I would suggest that you are morally responsible, but you bought the house with it already up). In the interests of keeping good relations, you may decide to contribute a portion towards a new fence, but there is no moral obligation to do so.

And on a final note, I'm really sorry that you have to go through this. It isn't your fault and I appreciate that it must be very stressful. I hope you can get it resolved quickly, amicably and cheaply.

aintreemaid

Pheasantplucker suggests halving both the land and the costs which seems a sensible compromise.
However, should a future intended purchaser of either property realise that the actual position of the "halfway" fence does not tally with the Land Registry plan the problem will arise all over again.

jonni

Land Registry records are often wrong: ours was, and so was a close neighbour's. Get your solicitor to review deeds, etc. Then, even if their records correspond to the deeds, if you and the people you bought the house from have been treating the land as your own for, I think, seven years, you may well have acquired "squatters' rights" and be entitled to keep it, saving everyone the cost of moving the fence.

Bedsdriver

halsteadk wrote: »

Normally the fence on one side of each property is the full responsibility of one owner to maintain. If this is your neighbour's fence, you should definitely not pay ANY of the cost regardless of any other factor.

<snip>

Sorry this is simply not true. It may be true of a boundary structure erected on a new property but positive covenants do not run with the land. Over time legal responsibilities disappear if indemnity covenants are not continuous.

Boundaries are a subject that many people have uninformed opinions on based on half truths and old wives tales.

firefly80

I am not an expert, but had a similar issue and it may be more complicated than it seems. If you have a mortgage then you only have a stake in the land, they own it too so you cannot just do as you wish they may need to get involved.

Primrose

I certainly wouldn't lose part of my garden and also be expected to pay for it.
Your solicitor may have been incompetent or careless over this, and if this is the case, you may be liable for some compensation. Get it all checked out thoroughly before agreeing to anything.

I_love_a_good_deal

So the fence is in their garden, but not at the edge, and they want to move the fence to the "edge of their garden boundary" rather than running through the middle of it? why would a neighbour pay for this?

you couldnt ask a neighbour to put up money if you wanted to lay a patio in your garden. There's nothing you need to pay on this...

Like the others, check with the solicitors though. I'd be really annoyed if I was losing any part of a property that i had just bought.

Bottom line, the fence is on their land, and is remaining on their land, there's nothing for you to pay.