Who is responsible for fences

Section62

Ath_Wat said:

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.

BiB - See the first post in the thread.  The OP is (I think) asking advice how to address these issues before giving consent as freeholder.

Because of the freeholder/lessee relationship the situation is not the same as if it were two equal neighbours.

Why a court might care is if there was some subesquent dispute over responsibility for the fence and they were asked for a judgement or to make an order.  If that happened they would delve a bit deeper than just looking at which side of an imaginary line the fence is on.  Hence in the OP's situation the location of the fence relative to an imaginary line is not necessarily a significant issue.

Ath_Wat said:

Obviously if anything in your garden  becomes dangerous to others you have to make it safe or remove it, but not to maintain it.

"Maintained in a safe condition" = not allowing it to become dangerous to others.

Ath_Wat

Section62 said:

Ath_Wat said:

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.

BiB - See the first post in the thread.  The OP is (I think) asking advice how to address these issues before giving consent as freeholder.

Because of the freeholder/lessee relationship the situation is not the same as if it were two equal neighbours.

Why a court might care is if there was some subesquent dispute over responsibility for the fence and they were asked for a judgement or to make an order.  If that happened they would delve a bit deeper than just looking at which side of an imaginary line the fence is on.  Hence in the OP's situation the location of the fence relative to an imaginary line is not necessarily a significant issue.

Ath_Wat said:

Obviously if anything in your garden  becomes dangerous to others you have to make it safe or remove it, but not to maintain it.

"Maintained in a safe condition" = not allowing it to become dangerous to others.

Why?  You mean if both parties have somehow forgotten that the fence is in one person's garden and owned by them?  What case might have been brought to court, do you think, to prompt this?

What do you think the court will do in such a case?  There's nothing in the deeds about that fence, as it doesn't currently exist. Nobody would have a duty to replace it with a new or better fence.  What they would be disputing is the ownership of some pieces of wood, that have been there so long that everyone has forgotten who put them there.  Who cares?

There's no responsibility for any boundary (not fence) unless that is directly stated in a legal document and in this case, it clearly isn't.

Section62

Ath_Wat said:

Why?  You mean if both parties have somehow forgotten that the fence is in one person's garden and owned by them?  What case might have been brought to court, do you think, to prompt this?

What do you think the court will do in such a case?  There's nothing in the deeds about that fence, as it doesn't currently exist. Nobody would have a duty to replace it with a new or better fence.  What they would be disputing is the ownership of some pieces of wood, that have been there so long that everyone has forgotten who put them there.  Who cares?

People buy and sell property.  The new owners don't necessarily know what was agreed by previous owners.

Purely as an example, the freeholder allows a lessee to put up a fence close to the common boundary. The agreement consists only of an exchange of emails.  Years later the fence which hasn't been maintained properly falls over and kills someone.  The police investigate whether the lack of maintenance of the fence contributed to the person's death.  Both parties deny responsibility for the fence and the lack of maintenance.  The lease shows the fences the lessee is responsible for, which doesn't include the one near the common boundary.  The police and CPS decide the freeholder must be responsible and a prosecution follows.  The court will - ultimately - need to decide whether or not the freeholder is responsible for the lack of maintenance, and that won't be limited to considering whether or not the fence was 1mm away (on the lessee's side) from an imaginary line.

I emphasise that is only an example, but in broad terms (other than the fatal outcome) it is based on a situation I had some involvement with in my professional life (but not as a lawyer).

As a reminder you 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.  Nobody is responsible for maintaining it.

People with an interest in a property are responsible for maintaining the safety of things that could have an impact on other people and their property.  Where the 'thing' is in close proximity to the boundary of the property this is particularly important.

I sense this is the kind of thing the OP is concerned about (rightly, IMV).

Ath_Wat said:

There's no responsibility for any boundary (not fence) unless that is directly stated in a legal document and in this case, it clearly isn't.

The "it" being discussed was the fence?

eddddy

Section62 said:

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)

I think you're tying yourself in knots here.

There's a lot of legislation and case law about this. Assuming the lease requires freeholder consent...

A freeholder can't use the lifestyle choices of a tenant as a basis for allowing or refusing consent for something - i.e. they can have consent for a fence if they have a puppy, but they can't have fence if they don't have a puppy.


Courts have ruled that valid reasons for refusing consent to alterations are things like:

• It damages the building
• It is detrimental to other leaseholders
• It's not safe

But this assumes that...

• The garden is demised to the leaseholder
• The lease requires freeholder consent to put up the fence

Section62

eddddy said:

A freeholder can't use the lifestyle choices of a tenant as a basis for allowing or refusing consent for something - i.e. they can have consent for a fence if they have a puppy, but they can't have fence if they don't have a puppy.

How would their lifestyle choice be affected if they are required to remove the fence as/after they move out?

(Note: I didn't say the fence should go if they no longer had the puppy/dog)

eddddy

Section62 said:

How would their lifestyle choice be affected if they are required to remove the fence as/after they move out?

As I've said, that's probably not a reasonable condition.

Why would a fence that was not a problem suddenly become a problem?

For example, why would the fence suddenly start causing damage to the building, become unsafe, become detrimental to another leaseholder because somebody moves out?

Maybe take a look at some real cases that went to court.

Section62 said:

(Note: I didn't say the fence should go if they no longer had the puppy/dog)

Essentially, you did say that.  Consent is granted to the leaseholder - not to an individual. 

So..

George was the leaseholder. George had a puppy. George transfers the lease to bill. Bill has no puppy.

So the leaseholder previously had a puppy, now the leaseholder no longer has a puppy.

Ath_Wat

Section62 said:

Ath_Wat said:

Why?  You mean if both parties have somehow forgotten that the fence is in one person's garden and owned by them?  What case might have been brought to court, do you think, to prompt this?

What do you think the court will do in such a case?  There's nothing in the deeds about that fence, as it doesn't currently exist. Nobody would have a duty to replace it with a new or better fence.  What they would be disputing is the ownership of some pieces of wood, that have been there so long that everyone has forgotten who put them there.  Who cares?

People buy and sell property.  The new owners don't necessarily know what was agreed by previous owners.

Purely as an example, the freeholder allows a lessee to put up a fence close to the common boundary. The agreement consists only of an exchange of emails.  Years later the fence which hasn't been maintained properly falls over and kills someone.  The police investigate whether the lack of maintenance of the fence contributed to the person's death.  Both parties deny responsibility for the fence and the lack of maintenance.  The lease shows the fences the lessee is responsible for, which doesn't include the one near the common boundary.  The police and CPS decide the freeholder must be responsible and a prosecution follows.  The court will - ultimately - need to decide whether or not the freeholder is responsible for the lack of maintenance, and that won't be limited to considering whether or not the fence was 1mm away (on the lessee's side) from an imaginary line.

I emphasise that is only an example, but in broad terms (other than the fatal outcome) it is based on a situation I had some involvement with in my professional life (but not as a lawyer).

As a reminder you 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.  Nobody is responsible for maintaining it.

People with an interest in a property are responsible for maintaining the safety of things that could have an impact on other people and their property.  Where the 'thing' is in close proximity to the boundary of the property this is particularly important.

I sense this is the kind of thing the OP is concerned about (rightly, IMV).

Ath_Wat said:

There's no responsibility for any boundary (not fence) unless that is directly stated in a legal document and in this case, it clearly isn't.

The "it" being discussed was the fence?

It's a fence.  If it "becomes dangerous", someone can take it down and dispose of it.  It's a hugely unlikely scenario that will cost next to nothing to fix.  It's not worth worrying about and certainly not worth spending money writing into leases.

You seem to believe in planning for the most unlikely apocalypses; that is your prerogative.

I'm not sure what your last line means.  Nobody is ever responsible for fences except the owner, someone always owns them.  People are responsible for boundaries, in some cases, where specified.  There's nothing ever stopping anyone erecting their own fence along their side of a boundary they are not responsible for.  I imagine that every time this happens you think they should lodge a legal document somewhere establishing ownership.

What would you do if your neighbour built a fence on his side of a boundary with your garden?  Worry that if in five years it fell over and killed someone you might be held responsible?  

indigofreeze

Thanks for everyone's input but I'm a bit confused as there are some very different views.

Just to be clear

We had a verbal conversation and I told my neighbors I didn't mind if they put up the fence (nothing in writing)

The lease does say the need for freeholder consent for anything to be erected

I'm just worried about future leaseholders/neighbors not taking responsibility for the fence. The fence itself is not the problem, it's who will look after it (I don't want the responsibility)

What is the best way of approaching this

1) agree to the fence and leave it at that

2) agree to the fence and ask a solicitor to draw up something which means anyone who owns the lease is responsible for the fence. If changing the lease will cost thousands, will some sort of contract be a better and much cheaper idea

3) would the leaseholder pay for this

Ath_Wat

How much do you think it will cost to "look after the fence", given that if anyone tries to say it is yours (not your responsibility but yours - responsibility for a fence is solely down to ownership), you can just pull it down and dispose of it.  Do you think that expense (only a small possibility, in that it's far more likely any new owners will be told and accept it is theirs, or the existing residents will take it down if they move and you ask them to) will compare to hiring lawyers in any capacity whatsoever?

How long is this fence and how high, to keep a puppy in?  Four feet high of lattice?  Is it really worth worrying about?  If someone says its yours twenty years down the line rip it up, stick it in a car and take it to a tip.

There's no possibility anyone can claim you have a responsibility to have a fence there.  They could only possibly claim that you own the wood.

eddddy

indigofreeze said:

Thanks for everyone's input but I'm a bit confused as there are some very different views.

Just to be clear

We had a verbal conversation and I told my neighbors I didn't mind if they put up the fence (nothing in writing)

The lease does say the need for freeholder consent for anything to be erected

I'm just worried about future leaseholders/neighbors not taking responsibility for the fence. The fence itself is not the problem, it's who will look after it (I don't want the responsibility)

What is the best way of approaching this

1) agree to the fence and leave it at that

2) agree to the fence and ask a solicitor to draw up something which means anyone who owns the lease is responsible for the fence. If changing the lease will cost thousands, will some sort of contract be a better and much cheaper idea

3) would the leaseholder pay for this

There is a lot of complex leaseholder law behind this. (Some people have been guessing answers to your question, without knowing the law, which hasn't helped you.)

TBH, as a freeholder, you should really get to understand the law. You could get into big problems and lose lots of money, if you don't.




Anyway, regarding the fence, one way of navigating the law would be...

• You should give the neighbour written consent to put up the fence. Include any conditions (about maintenance etc) in that written consent.

• (That written consent document should be very important to your neighbour - when they sell, their buyer might want to see it.)

• If you want a solicitor to draft the document - tell your neighbour that's what you require, and tell them to confirm in writing, in advance, that they will pay the cost of the solicitor

But... your neighbour might say...

• it's not reasonable for you to need a solicitor to write such a simple document

• And/or they will pay the solicitor's fee under protest and challenge it at a tribunal

In which case, you have to make a choice...

• Pay the solicitor, send a service charge bill to your neighbour (in the correct format - so that it is legally binding). Be prepared to argue your case at a tribunal and/or take legal action for breach of covenant. And you might lose, meaning you can't recover the solicitor's fee, or your other legal costs. And you might have to pay your neighbour's legal costs as well.

• Or, don't use a solicitor and write the consent document yourself.