18mo after moving into new build, told our garden fence temporary, will now lose 31.5msq

moneymattersnatter

Hi there, long time lurker, first time poster. 

We bought a new build & moved in 18mo ago.

When we purchased, the house was nearly constructed. Our choice was made on the strength of its garden size. 

It’s a large development with two developers & the boundary in question is shared with the other developer.

We used the property developer’s legal team for the house sale. 

There was no conversation about temporary fences or boundaries or anything that prepared us for the position we now find ourselves in.

Next door has been the other developer’s car park all this time. They are coming to complete their construction now, so building will soon start to bring us neighbours, not cars. 😁

When we moved in, we spent STUPID money on our garden to landscape it. STUPID money on garden furniture to fit the space. All pre-covid. 

Yesterday we were told the fence had always been “temporary”.  They've checked our file and confirm there is no evidence we were told.  I can assure you, we were not.

Now that the other developer needs to start building on their car park, the fence needs to be moved 40cm into our garden for the other house to fit. So along its whole length (31.5m), front to back of house, we’re losing 31.5m sq. 

We lose planted beds. Our furniture will no longer fit on our now exceedingly decadent Indian stone patio. 

Storage units placed comfortably down the side of the house will no longer be able to be used. 

Let alone the disruption of ripping up our garden, replacing fencing whilst we’re all home. 😣  I say “we”, DH is emergency services keyworker so he’s out a lot. 

We now have been surviving (barely) on one income for 6 months (I’m self employed, no Gov support) & more importantly, I’m financially & emotionally tired of fighting. (Long story short, I’ve also got a small claims court case in March as my last & long term client didn’t pay me, hence struggle to readapt to gearing up new clients during covid) 

Also, I’ve a #MeToo background of taking on bullies, racists & sexists. But I’m just, you know, tired of fighting 😓  It’s actually a bit of a PTSD trigger. I feel like I’m about to get fcuked & I've no control of the outcome. 

Please, MSE, hold my hand. Mumsnet told me you're the right forum to share this with!

Any legal advice? What questions should we be asking?  What docmentation should I be checking?  Generally, how can I reclaim some control over this situation? 

I assumed this boundary would have been laid out by one developer’s engineer, approved by the other. The same for the fence installation. 

I *feel* that their due diligence is both their fault, but now we will have to manage the consequences. 

Action I've taken so far; 

1. Informed local council as I believe they will need to be aware of boundary complaints.

2. I'm checking whether legal fees will be covered under our Home Insurance (we'd really struggle to take on TWO property developers!)

Next?! 😁  TIA. 

Ditzy_Mitzy

What does the title deed or Land Registry extract show?  It's either your land or it isn't.

daveyjp

When you bought the house you should have signed off a plan showing the extent of your plot.  Check this against reality.

pinkteapot

There's two questions here: 

1. Is the fence along the boundary of the land you own where it should be, or is it on the other developer's land?
2. If it's on the other developer's land, did your developer tell you this was the case?

First things I would do in your situation are: 

1. Check your Land Registry deeds to see where they show your boundary as physically being (they show the land you own, not where the fences are). This is your best recourse to answer point 1, but with the argument being over "only" 40cm, there may not be clear enough features marked on the plot as shown on the Land Registry to say for certain where the fence should be. But you never know... E.g. is your fence in line with others (does it form part of a longer boundary to the whole estate).
2. Ask your developer for their proof the fence is in the wrong place, and proof that they told you the fence was temporary. 
3. Ask your solicitor for any evidence they had that the fence was temporary (you did make a mistake - you should never use the developer's recommended solicitor - but nonetheless the solicitor DOES have a legal duty to you).
4. Given that your solicitor is the developer's one, I'd be tempted to pay a new, independent solicitor to look over all your paperwork from the purchase and see if there was anything in there to say the fence was temporary. 

But I've never been in this situation either so that's just where I'd start trying to put information together!

If it turns out the fence is in the wrong place, the other developer is well within their rights to claim the land back from you. If that's the case, and you definitely couldn't have known it was 'temporary', I'd be arguing with the developer to cover the costs of sorting the garden (moving your bed inward (a decent landscaper will be able to dig up the plants and re-plant them in the new bed), re-finishing the edge of the patio where some gets taken out, etc).

By the way, if the fence is in the wrong place then I can't believe it was deliberate and they "temporarily" gave you extra garden. It seems far more likely that your developer put the fence up in the wrong place (on the other developer's land) and the other developer has now measured up for their houses, realised, and told them to get the fence moved...

moneymattersnatter

So, here is where I'm a bit confused. I just spoke with my husband and he says we were *not* missold. The fence is where our legal boundary is and indicated on the plans. 
BUT the fence should be 40cm into our garden for both developers to fit all the houses in and to meet building regs.
My heart says; I just want the developers to fight it out. They sort out the legals.  The fence (that's cemented in - no indication not permanent) stays. I don't want the disruption and compensation. I just want an easy life. 
Realistically we're both getting emotional (he's furious, I'm feeling vulnerable) because we know it's probably just easier for both developers to bully us into moving the fence. 
So, I'm calling my Home Insurance at 8:30 to check legal fees and then I'll be asking the questions you've all helpfully raised. 
Do you mind if I keep you posted and come back with more questions if I have them?  Knowledge is power, and all that, right?😁

getmore4less

Have a good look through the planning as well there are usually good( to scale) drawing of the site and where all the fences should be. 

Ditzy_Mitzy

In which case it's difficult to comment without seeing everything.  Is the house freehold, for one?  If not, other questions are raised.  If so, the land is yours and nobody can tell you where to put a fence, within reason, unless there's a right of access or a wayleave or some other legal instrument in place allowing the other builder to dictate where the fence goes.  He may have a right to the sixteen inches, such as if it's necessary to allow a full width drive or road.  More research is necessary, however you should have sorted this out prior to purchase.

AdrianC

If the "temporary" fence is where your LR plan shows your boundary, then they can basically go and whistle. They already sold you that land. They can't have it back so they can sell it again to somebody else. Not unless you sell it back to them, which will involve your mortgage lender...

Please do come back and update this thread, yes! Too few posters do. And if you've got more questions, of COURSE ask them here...

moneymattersnatter

Ditzy_Mitzy said:

In which case it's difficult to comment without seeing everything.  Is the house freehold, for one?  If not, other questions are raised.  If so, the land is yours and nobody can tell you where to put a fence, within reason, unless there's a right of access or a wayleave or some other legal instrument in place allowing the other builder to dictate where the fence goes.  He may have a right to the sixteen inches, such as if it's necessary to allow a full width drive or road.  More research is necessary, however you should have sorted this out prior to purchase.

When you say "you should have sorted this out prior to purchase" please can you elaborate?  We did everything we needed to to exchange legally, paying a solicitor, conveyancer and nothing was raised... What are lay people supposed to do before exchange with regards measurement of boundary lines etc?  Should we have measured every room, every door and window too?  We were sold a house told by Developers; "look at the size of your garden!"   Where and when would anyone anticipate that that was untrue?
I don't know if it's intended, but you seem to be implying we should have anticipated that 18 months after moving into our property, our failings have lead to a reasonable claim to this land. 

pinkteapot

But is it a “reasonable claim”? 

As another poster asked: Is the house freehold? 

Why exactly has the developer said they have a right to the land? Are they arguing you don’t own it, or are they saying you do but they have some sort of legal right over it. If so, what right exactly? 

Ask them these questions if they haven’t yet made it clear to you. 

getmore4less

You should have checked what they were selling you was what was on the ground. 
If necessary that would include measurements if no obvious boundary markers. 
Starts with the site plan, actual markings on the land reg deeds, planning and when on a boundary to another site their site as well. 

That includes size & positioning of plot positioning of the house on the plot and size of house. 

You have to do that now if you want to protect what you thought you bought.