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

mrschaucer

As has been asked, could you please quote the relevant parts of your deeds detailing the boundary requirements?  Then we'd all understand what you can/can't/must do in relation to fencing.

Jeepers_Creepers

snap123 said:

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? 

As said above, we need to know the exact wording of this covenant, and ideally who would/could enforce it. Most properties will indicate who's 'responsibility' each boundary is (often marked with a series of 'T's), but that's as far as that goes; you cannot force or oblige someone to actually maintain 'their' fence, or even fit one in the first place.

So I wonder how much further your specific covenant goes beyond this?

Anyhoo, what can we say?

1) She installed 4 concrete posts on HER land, so these belong entirely to her. That has nothing to do with you whatsoever.

2) She gave you permission to slot your panels in there, and you did. That's fine. The panels still belong to you, so you can remove them if you wish (I guess this could technically be tresspass, but they'd be out before anyone could act, and in any case I understand that 'tresspass' doesn't really have much meaning on its own unless accompanied with something else like crimal damage or harassment. In any case, you weren't going to remove these panels - she was. But if you wanted to, you could - your fencers would have them out of there in 2 minutes.) If her fencer does it instead, that's great.

3) She can continue to install the rest of her fencing on her land if she wishes. This is her land. And would be her fence. But she cannot force you to contribute towards this, as it isn't a 'boundary' fence or your responsibility in the deeds; this is HER fence on HER land, and she can fit this if she likes.

4) Your preferred route - having your own fence fitted in your land is absolutely fine, BUT if your deeds say that you need to keep the 'boundary' fence in good repair, then techncially this isn't a 'boundary' fence either, but one that's entirely yours and within your land. More than that, tho', why should you lose a few inches from your garden?

I suspect we are only talking about a few inches either way, but if you are now in a financial position to repair/replace the fence that you are responsible for according to your deeds and that covenant, then the CORRECT thing to do would be to install this fence EXACTLY where the previous fence was - presumably right on the boundary.

Imagine your chagrin if you build a new fence inside your land and she still demands you still fulfil the requirements in the deeds? Ok, that's extremely unlikely to happen, but we do seem to be talking about a not fully reasonable person.

If you aren't fiancially solid yet, there's nothing to stop you from installing a cheaper low fence for the time being; as long as it's in a good state of repair, and as long as it's on the same line as the current tatty fence, you have fully fulfilled your obligtions.

Personally, I'd premept any further action from this lady by making your intentions clear in a witnessable way asap. Either verbally with a witness, or by letter but you'd also have to be able to show she received it. "Dear Neighb. I am now in a position where I can replace the boundary fence. I will be employing my fencer to undertake this task as soon as they can. Best whatsits."

Next step is to smile. Get ready to counter anything and everything she will come up with with a smile.

"I want this fence to be of this style!" Smile - "You do know that this is my responsibility, so therefore will my choice, don't you?"

"I've started to build my fence - I have 4 posts in!" Smile - "And you can carry on if you like, but I'm going to fulfil my duty and fit a boundary fence as per my deeds. That is what I should be doing, isn't it?"

etc etc. Try and end you replies with a question - and you can repeat that mantra until twilight.