Freeholder or Leaseholder responsible for fixing the fence

Katanoosh

I wonder if someone could help me. I am a leaseholder of 2nd floor flat in converted house (4 flats), my lease is only for the flat/building - no garden. Ground floor flat lease includes both back and front garden with us having a right of way to the entrance only. We are all freeholders as well (share of freehold), just to make it more complicated. Recently ground floor owner asked us to pay towards the repair of the section of party fence. The section of the fence in question is next to "right of way" path to access our flat.  That path is not included on my land registry lease plans. The freehold document says: "it is hereby declared and agreed that dividing fences are party fences and shall be maintained and treated as such". My lease says that I should maintain boundary walls and fences except where these are responsibility of other flat (they are not included in my lease as I do not own gardens)
Is it our responsibility as freeholders to pay towards fixing the fence of land owned by leaseholder? Help!!!

user1977

Katanoosh said:

The freehold document says: "it is hereby declared and agreed that dividing fences are party fences and shall be maintained and treated as such".

Which "freehold document"? What does it mean by "dividing fences"? I'd have thought that more likely to be referring to boundary fences with other freeholders, rather than fences within the freehold property.

What (if anything) does the ground floor's lease say about their fences?

Katanoosh

Freehold document - Land Registry Title
What does it mean by "dividing fences"? - no idea, that's what its written on Land Registry Title
I haven't seen ground floor lease document so do not know what it says exactly. I can only see land registry documents for reference. And they say and show ground floor owns a gardens.

princeofpounds

You need to get hold of the lease for the ground floor flat (can be ordered from the land registry, but the occupant should also have a copy). Together with the freehold title and the two title plans, it should tell you who is responsible for what. Your lease, and your lease plan, are totally irrelevant.

Unfortunately, what you have given us so far is so light on detail (and lacking context) that it's impossible to comment with any specificity about your situation.

Then there are basically three questions to answer:

- Who is responsible for the actual fence in question - does it belong to the ground floor leasehold, the freehold, or is it party?
- What actual obligations the freehold may have to the leasehold to repair it - possibly there is no obligation in reality, possibly there is.
- What decision the freehold wants to take - either as Directors or co-shareholders depending on your corporate structure, the actual path ahead may need to be decided by a vote.

IF the freehold is liable to repair the fence then it doesn't matter who has the 'benefit' of the fence. That is also irrelevant.

My suspicion is that the freehold document you refer to is the freehold title, and the dividing fences it is talking about are those with surrounding land that the freehold plot was sub-divided from. But without context I cannot be sure.

Then you note that your lease has a clause stating that you are responsible for maintaining boundary walls and fences. It's very possible that the neighbour has a similar clause in their lease, but not certain. If that is the case, and the fence in question is within their boundary, then that would suggest that they are solely responsible, and in fact owe an obligation to the freeholder to maintain it. But again, we cannot be at all certain without more information.

Katanoosh

Thanks princeofpounds for the reply. 
The fence in question is party and I can see on ground floor flat land registry plan that it is to be maintained by our side, not the neighbour next door. Ground floor flat owns both front and back gardens (lease)
Question is - I, as leaseholder, have no ownership of the front and back garden. No pleasure of using it, parking the car on the driveway, choose flowers and bushes to plant, enjoying barbeque on Sunday. Hence no responsibility for repair of the fence? Or as a freeholder do I share responsibility for repair of the party fence? All leaseholders are also freeholders and we are all living in the flats. 

princeofpounds

Katanoosh said:

Thanks princeofpounds for the reply. 
The fence in question is party and I can see on ground floor flat land registry plan that it is to be maintained by our side, not the neighbour next door. Ground floor flat owns both front and back gardens (lease)
Question is - I, as leaseholder, have no ownership of the front and back garden. No pleasure of using it, parking the car on the driveway, choose flowers and bushes to plant, enjoying barbeque on Sunday. Hence no responsibility for repair of the fence? Or as a freeholder do I share responsibility for repair of the party fence? All leaseholders are also freeholders and we are all living in the flats. 

OK, I'll take the points in your initial paragraph as given, although we can't check up on your assessment on that.

If the freehold is liable to maintain (or jointly-maintain) a fence, then the freehold will pay its share. Then (or beforehand) the freehold can recover money through the service charge. The service charge will be apportioned through a method defined in the lease - usually each leasehold will be responsible for a certain %, often equal but not always.

The question of who benefits specifically and most directly from the repair is not relevant. In the same way that the ground floor flat still needs to pay for the roof, or the penthouse for the foundations.

Katanoosh

Thanks princeofpounds , I see your point with roof....