Who is responsible for fences

indigofreeze

I live in a maisonette and have the freehold for my home and the maisonette above me.

My neighbors upstairs have just got a puppy and asked if they could put up a fence in their garden which would  border the side of my garden, they are happy to pay for it. Currently a few plants divide our gardens.

The fences already in their garden are mentioned in the lease which says they need to maintain and repair the fences marked with a T.  The lease also asks for freeholder consent to erect anything which I've happily given them. Does putting up a fence need my consent tho?

I have no intention of moving but my neighbors have told me they would like to move in a few years. 

As the new fence would not be mentioned in the lease or marked with a T, how could I be sure any future neighbors would maintain it and what would happen if it blew down one day and landed in my garden. I don't want to be responsible for it. 

Can I ask the neighbors to have the maintenance of the new fence written into their lease?

How would I go about doing this, would I have to pay for a change in the lease?

Any other help or suggestions? TIA

Slithery

indigofreeze said:

As the new fence would not be mentioned in the lease or marked with a T, how could I be sure any future neighbors would maintain it...

You can't unless you get it written into the lease which will cost both of you solicitors fees.

indigofreeze said:

...and what would happen if it blew down one day and landed in my garden.

If it isn't mentioned in the lease then nothing needs to happen except maybe someone picking up the pieces and throwing them in the bin.

Ath_Wat

If they put up a fence on their land (that is their side of the imaginary border, which has no physical width) then it is their fence, in exactly the same way as if they put a post in the middle of their garden.  Nobody is responsible for maintaining it.  The people who own it can maintain it if they like, and dispose of it if they like.

indigofreeze

Thanks for the replies.

I'm not worried about my current neighbors, I'm thinking in the future. A new leaseholder may not want to look after the new fence because it's not mentioned in the lease.

Can I ask that the lease is changed to include the fence and it's maintenance

eddddy

Broadly, there are 3 possibilities:

1. The neighbour's lease says they require the freeholder's consent to put up a fence
2. The neighbour's lease doesn't say they require the freeholder's consent to put up a fence (so they can do it anyway)
3. The neighbour's lease says they are not allowed to put up a fence

If it's option 1...
Your neighbour should ask for the freeholder's consent in writing (otherwise they might have problems when they sell their maisonette or when you sell your freehold).

You can put any 'reasonable' terms in your written consent - for example, about maintaining the fence. (But what do you want to be able to do if they don't maintain the fence?)

(You could change the lease instead, or maybe both leases, but that would cost thousands.)


If it's option 2...
The neighbour can put up their fence... you can't stop them


If it's option 3...
You mustn't give them consent - unless you change (probably) both leases. That would probably cost thousands.

With option 3 - instead, the neighbour could put up a fence without your consent, and you could 'pretend you haven't noticed'.  But if you sell the freehold, the new freeholder might notice it and tell them to take it down.

theoretica

Sure you can ask - but do you know how much it would cost to get the lease changed?  It doesn't seem a reasonable request.  Write a letter setting out the full agreement about the fence and both sign and keep a copy.

Section62

indigofreeze said:

The fences already in their garden are mentioned in the lease which says they need to maintain and repair the fences marked with a T.  The lease also asks for freeholder consent to erect anything which I've happily given them. Does putting up a fence need my consent tho?

I have no intention of moving but my neighbors have told me they would like to move in a few years. 

As the new fence would not be mentioned in the lease or marked with a T, how could I be sure any future neighbors would maintain it and what would happen if it blew down one day and landed in my garden. I don't want to be responsible for it. 

Can I ask the neighbors to have the maintenance of the new fence written into their lease?

indigofreeze said:

I'm not worried about my current neighbors, I'm thinking in the future. A new leaseholder may not want to look after the new fence because it's not mentioned in the lease.

Can I ask that the lease is changed to include the fence and it's maintenance

Can you clarify whether or not you've already given them consent for the fence?

If not, then depending on the exact wording of the lease they probably need your consent to put an additional fence up.  There is also a possibility they need planning consent, something else to check.

I would look at whether the freeholder consent can be made conditional - that they have your consent to put up the additional fence provided (a) it is temporary and they take it down when they sell up and (b) they are responsible for the fence and maintain it, equivalent to the 'T' marked fences referred to in the lease.

If the buyers want the same fence then just rinse and repeat.

Section62

Ath_Wat said:

If they put up a fence on their land (that is their side of the imaginary border, which has no physical width) then it is their fence, in exactly the same way as if they put a post in the middle of their garden.

The difference is the middle of the garden is definitely the middle of the garden.  When you get close to the boundary you reach a point where a court may decide it is a boundary fence, even though it isn't on the imaginary line.  E.g. for planning purposes a fence could be deemed to be a boundary fence if it was a metre (in some cases more) from where the legal boundary runs.

Also, unless I've misunderstood the OP, freeholder consent is needed to "erect anything" - I'd be surprised if that requirement was limited to fences on the imaginary boundary.  It might include a post in the middle of their garden too.

Ath_Wat said:

Nobody is responsible for maintaining it.  The people who own it can maintain it if they like, and dispose of it if they like.

Not strictly correct, as the lease refers to maintenance, and in other cases there are obligations to keep fences maintained in a safe condition, particularly where they could cause injury/damage to others and their property.  You can of course neglect to maintain, but may be held responsible for it.

eddddy

Section62 said:

I would look at whether the freeholder consent can be made conditional - that they have your consent to put up the additional fence provided (a) it is temporary and they take it down when they sell up and (b) they are responsible for the fence and maintain it, equivalent to the 'T' marked fences referred to in the lease.

The legal situation is as follows:

If the lease says that freeholder consent is required - the law says that consent cannot be unreasonably refused. In law, imposing unreasonable conditions is the same as unreasonably refusing consent.

• I suspect that a condition saying the fence must be maintained would be considered reasonable.
• But I suspect that a condition saying that the fence must be removed when you sell might be considered unreasonable.

If the neighbour thought the condition was unreasonable, they could pay £100 to take the OP to tribunal to get a decision. (If the neighbour wins, the OP would probably be ordered to repay the £100 to the neighbour.)

Section62

eddddy said:

• But I suspect that a condition saying that the fence must be removed when you sell might be considered unreasonable.

I would start from the position there is no fence currently on the boundary - presumably for a reason, rather than the previous fence falling down. (one of the necessities of checking the planning situation)

The neighbours want a puppy, which necessitates a means of enclosure.

When the puppy is no longer there, the need for a fence is removed.

Consent for something on a temporary basis is more reasonable than outright refusal.

The change of owners (and anticipated removal of the puppy) seems a logical back-stop date for a temporary fence to be removed.

If the OP can't condition the consent to make it temporary, it suggests they wouldn't be able to refuse consent for this fence at all.

(But INAL)

Ath_Wat

Section62 said:

Ath_Wat said:

If they put up a fence on their land (that is their side of the imaginary border, which has no physical width) then it is their fence, in exactly the same way as if they put a post in the middle of their garden.

The difference is the middle of the garden is definitely the middle of the garden.  When you get close to the boundary you reach a point where a court may decide it is a boundary fence, even though it isn't on the imaginary line.  E.g. for planning purposes a fence could be deemed to be a boundary fence if it was a metre (in some cases more) from where the legal boundary runs.

Also, unless I've misunderstood the OP, freeholder consent is needed to "erect anything" - I'd be surprised if that requirement was limited to fences on the imaginary boundary.  It might include a post in the middle of their garden too.

Ath_Wat said:

Nobody is responsible for maintaining it.  The people who own it can maintain it if they like, and dispose of it if they like.

Not strictly correct, as the lease refers to maintenance, and in other cases there are obligations to keep fences maintained in a safe condition, particularly where they could cause injury/damage to others and their property.  You can of course neglect to maintain, but may be held responsible for it.

If it's built in one person's garden then a court won't care if it's a boundary fence, or indeed care about it at all.  The person who put it up owns it and the person who didn't has no rights or obligations over it.  There's clearly no legal obligation in the lease  to have a boundary fence at that point and maintain it, or there would be one there already.  I am not sure why needing freeholder consent has any bearing; yes, they might need it for a post in the middle of the garden, but if it's granted; it's granted.

As there are no existing stipulations about that boundary, none are needed going forward.  Obviously if anything in your garden  becomes dangerous to others you have to make it safe or remove it, but not to maintain it.