Neighbour want to install fence on her land and claiming full payment via small claims courts

snap123

Hello, we're responsible for the fencing as per title deed. The fence has been in a state of disrepair, mostly broken and rotten (overgrown ivy). We've been saving up to get the whole fencing replaced and we're ready to get it sorted. A few years ago our neighbour installed 4 concrete posts on her land at the bottom end of the garden. Last year she gave us permission to slot 3 fence panels onto her concrete posts. Last week she sent a letter withdrawing her consent and told us she's hired a contractor to remove our fence panels and place them in our garden (without our consent or permission to step into our garden obv) and install the whole fencing on her land using her style of fencing, and that she will then seek recovery costs incurred through the small claims court based on the positive covenant that requires that we maintain our fence in good repair. Basically we will be paying her contractor for the fencing installation on her garden, yet we won't be the "owner" of the fence. 

Can she claim recovery costs even though it's built on her land and does it still fall within our responsibility? If she goes ahead, will she be the "owner" of the fence? And what happens to our legal obligation/responsibility? We plan to paint the fence someday so that means we'd need to ask for her permission. Obviously she will say 'no'.

Our preferred route now is to hire a gardener to install the fence on our garden instead and right next to her 4 concrete posts. This way we get to choose the contractor, the style of fencing, we own the fence, and we would simply be fulfilling our responsibility to maintain the fence as per the positive covenant. Do we need her permission in case the contractor may need to step into her garden during the installation? 

the_lunatic_is_in_my_head

snap123 said:

based on the positive covenant that requires that we maintain our fence in good repair. 

Can you post a copy of your deeds? 

It sounds as if you have a fence in state of good repair but it is supported by her posts.

No issue with her removing consent and safely returning the panels.

If you think she really will go down the small claims route I'd buy some cheap posts, stick them in the ground and use your current panels, then what does she have to complain about? 

How long is the fence?  

victor2

snap123 said:

Hello, we're responsible for the fencing as per title deed. The fence has been in a state of disrepair, mostly broken and rotten (overgrown ivy). We've been saving up to get the whole fencing replaced and we're ready to get it sorted. A few years ago our neighbour installed 4 concrete posts on her land at the bottom end of the garden. Last year she gave us permission to slot 3 fence panels onto her concrete posts. Last week she sent a letter withdrawing her consent and told us she's hired a contractor to remove our fence panels and place them in our garden (without our consent or permission to step into our garden obv) and install the whole fencing on her land using her style of fencing, and that she will then seek recovery costs incurred through the small claims court based on the positive covenant that requires that we maintain our fence in good repair. Basically we will be paying her contractor for the fencing installation on her garden, yet we won't be the "owner" of the fence. 

Can she claim recovery costs even though it's built on her land and does it still fall within our responsibility? If she goes ahead, will she be the "owner" of the fence? And what happens to our legal obligation/responsibility? We plan to paint the fence someday so that means we'd need to ask for her permission. Obviously she will say 'no'.

Our preferred route now is to hire a gardener to install the fence on our garden instead and right next to her 4 concrete posts. This way we get to choose the contractor, the style of fencing, we own the fence, and we would simply be fulfilling our responsibility to maintain the fence as per the positive covenant. Do we need her permission in case the contractor may need to step into her garden during the installation? 

Remove the 3 fence panels yourself. They just lift up and over when in concrete posts. Needs two people because of the height you have to lift the panel to, but easily done.

Then put your own fence in, on the border. What she does on her land is up to her. We had a minor fence dispute with the neighbour when we bought our house many years ago. Our solicitor said we needed no more than a length of string tied between some sticks in the ground to mark the border. We replaced the diseased trees that were on the border with concrete posts and fence panels anyway, which was the plan when we bought the place.

If you have a covenant that says otherwise, surely you will be fulfilling it by putting a new fence in.

Brie

Isn't it the case that if she installs a fence on her land it's her fence and her expense?  You may be happy with a 2 foot high picket fence (deeds permitting) but she may want something more substantial to ensure her horse (insert suitable reason) doesn't run off. 

If you and her agree on something better than what you want, need or can afford then you could, for the sake of neighbourly relationships, agree to build to her standards but asking for her to contribute an appropriate percentage.  But it would remain your fence.

Why would she automatically suggest small claims court?  

Grumpy_chap

The OP should try to resolve this amicably as neither party wants a formal dispute in place that would have to be declared at sale time.

snap123

Brie said:

Isn't it the case that if she installs a fence on her land it's her fence and her expense?  You may be happy with a 2 foot high picket fence (deeds permitting) but she may want something more substantial to ensure her horse (insert suitable reason) doesn't run off. 

If you and her agree on something better than what you want, need or can afford then you could, for the sake of neighbourly relationships, agree to build to her standards but asking for her to contribute an appropriate percentage.  But it would remain your fence.

Why would she automatically suggest small claims court?  

That's what I thought but she insists that as I have failed to maintain my fence in good repair as per positive covenant, she can seek recovery of the costs incurred through the small claims court. She's also being very difficult, petty and refuses to cooperate. I don't blame as it's been in a state of disrepair for a long time. 

A question - can she actually get her contractor to position the fence on my garden without my permission?

snap123

victor2 said:

snap123 said:

Hello, we're responsible for the fencing as per title deed. The fence has been in a state of disrepair, mostly broken and rotten (overgrown ivy). We've been saving up to get the whole fencing replaced and we're ready to get it sorted. A few years ago our neighbour installed 4 concrete posts on her land at the bottom end of the garden. Last year she gave us permission to slot 3 fence panels onto her concrete posts. Last week she sent a letter withdrawing her consent and told us she's hired a contractor to remove our fence panels and place them in our garden (without our consent or permission to step into our garden obv) and install the whole fencing on her land using her style of fencing, and that she will then seek recovery costs incurred through the small claims court based on the positive covenant that requires that we maintain our fence in good repair. Basically we will be paying her contractor for the fencing installation on her garden, yet we won't be the "owner" of the fence. 

Can she claim recovery costs even though it's built on her land and does it still fall within our responsibility? If she goes ahead, will she be the "owner" of the fence? And what happens to our legal obligation/responsibility? We plan to paint the fence someday so that means we'd need to ask for her permission. Obviously she will say 'no'.

Our preferred route now is to hire a gardener to install the fence on our garden instead and right next to her 4 concrete posts. This way we get to choose the contractor, the style of fencing, we own the fence, and we would simply be fulfilling our responsibility to maintain the fence as per the positive covenant. Do we need her permission in case the contractor may need to step into her garden during the installation? 

Remove the 3 fence panels yourself. They just lift up and over when in concrete posts. Needs two people because of the height you have to lift the panel to, but easily done.

Then put your own fence in, on the border. What she does on her land is up to her. We had a minor fence dispute with the neighbour when we bought our house many years ago. Our solicitor said we needed no more than a length of string tied between some sticks in the ground to mark the border. We replaced the diseased trees that were on the border with concrete posts and fence panels anyway, which was the plan when we bought the place.

If you have a covenant that says otherwise, surely you will be fulfilling it by putting a new fence in.

That's what we'd like to do. Remove/lift our fence panels that's currently slotted into her posts, then install the whole fencing from the bottom to the top of the garden all the way through, on the border. She should be pleased surely as we're finally getting it over and done with. But she insists on getting her contractor putting her choice of fence panels and making us pay for it. 

the_lunatic_is_in_my_head

snap123 said:

Brie said:

Isn't it the case that if she installs a fence on her land it's her fence and her expense?  You may be happy with a 2 foot high picket fence (deeds permitting) but she may want something more substantial to ensure her horse (insert suitable reason) doesn't run off. 

If you and her agree on something better than what you want, need or can afford then you could, for the sake of neighbourly relationships, agree to build to her standards but asking for her to contribute an appropriate percentage.  But it would remain your fence.

Why would she automatically suggest small claims court?  

That's what I thought but she insists that as I have failed to maintain my fence in good repair as per positive covenant, she can seek recovery of the costs incurred through the small claims court. She's also being very difficult, petty and refuses to cooperate. I don't blame as it's been in a state of disrepair for a long time. 

A question - can she actually get her contractor to position the fence on my garden without my permission?

Sorry I've now read your OP properly, if you are ready to have the new fence installed just go a head with this, worth writing her a letter to state you will be doing this, where you intend to put the fence and should she have any concerns regarding the boundary line she should speak to you before the fence goes up on x date. 

If you aren't ready buy some cheap posts and panels and put them up asap for now.

If you are proactively fixing the fence shortly after she's drawn attention to it I don't see she'll have any claim to the cost of a new fence that she pays for. 

If you aren't ready to put up the permanent fence or can't find someone to do at short notice are you physically able to do the work of putting up a solid, temporary fence?

If she installs a fence on your property (and agrees it is on your property) then I presume you can carefully take it down and return it to her but if you have a fence up before she has the chance to do this you won't have this problem  

Brie

A question - can she actually get her contractor to position the fence on my garden without my permission?

So she would be telling someone to trespass.  

I would suggest that asap you get a couple of marker posts in with a string in between so that you can get your gardener to quote for putting in the fence you want.  If she then gets her contractor to come first and he removes your string then you would have cause to complain.  

Frankly I would find it annoying if there was some grotty rotten fence along side my pristine garden (I wish it was) so I can understand her point somewhat.  But it would be better to find a congenial way forward.  If she insists on her fence ensure that she understands that you will paint it at some point as having paid for it it's actually yours or you may put another on your side that suits you.   

And maybe point out to her that if she does put the fence on her property then she is essentially granting her use of however many inches of her land.

Norman_Castle

Unless she is the freeholder she cannot enforce a covenant. She is entitled to put a fence on her land but you are not obliged to pay for it. She cannot put a fence on your land, she can return your panels to you which is good, if they're usable it'll save a bit of money. Unless there is damage done to your property does it matter if they walk on your garden while working on the fence? 

Try talking to her, as you are ready and willing to put a fence up explain this to her. It'll avoid ongoing grievances.

Go out tomorrow and take multiple photographs showing the exact location of the boundary and make sure its clearly marked.

TELLIT01

You may be required to maintain a fence in good condition but you are not required to erect a fence to her specification.  As has been said, check your deeds, and if there is nothing in there or in the covenant stating what type of fence, you need to erect nothing more than a couple of straining wires on angle iron posts to mark the boundary.