Boundary responsibility in our Deeds, but neighbour wants to replace (and pay) for the fence

Blox55

Hi, 

I want to understand whether anything legally changes if the neighbour replaces the current 3-feet fence (which is our responsibility) with a new fence (as they want 6-foot 6 inches quite expensive fence). Initially they asked us to contribute, we said we cannot right now as it is not our priority and the current fence is ok. Then they said they want their privacy and that they will pay for the replacement fence and that after it is erected, how about we jointly maintain it.

What I want to understand is whether, if they pay for it, the fence then belongs to them and how this fits with our house deeds which specifically state we are responsible for the boundary and the fence.  The original contract between the builder  (Vendor) and the first purchaser (in 1965) has covenants that apply to all further purchasers and it says:

"The Vendors and the Purchaser hereby apply to the Registrar to enter notice of the foregoing covenants on the Register.  In this Transfer and the Schedule hereto unless the context otherwise requires, the expression "the Vendors" and "the Purchaser" shall include the persons respectively deriving title under them. 
(....)
Save as aforesaid, all boundary walls and fences of sites on the Estate shall belong to the site on the side of which an inward "T" Mark is shown on the plan annexed hereto and shall at all times hereafter be kept by the owner of such site in good order repair and condition to the satisfaction of the Vendors' Surveyor."   

The drawing that was attached to these wording (which we have a copy of) has clearly marked "T" on our land next to the right boundary (although the "T" is not marked on Land Registry plan). This is the boundary that has 3 ft fence and which now the neighbour wants to replace with 6 foot fence.

We want to get on with our neighbours and we are inclined to say OK, but we are not sure if this changes any legal position with regards to the covenant that we are required to maintain the fence. It would also appear that the fence is on our land as this is where the Vendors put the original "chicken wire" fence, and if, by replacing the fence, it will now belong to the neighbours, then we are in the situation where they own the fence, but it is on our boundary (our land just off the boundary).

I know we can tell them to erect the fence from their side of the boundary and it is then their fence, but this is not the best for the neighbour relationship/.

What is the best to do? And do we need some contract to draw between us regarding fence ownership and maintenance? 

tealady

I would tell your neighbours to go ahead with the fence but advise them it may be on your land.
What sort of fence do they want? Their privacy could mean more shade on your garden.
Would they compromise with a small  replacement fence (which you both maintain) and they top it with a trellis (which would be their responsibility).

ThisIsWeird

Hi Blox.

These covenants are pretty standard, and are designed to encourage friendly responsibility for the fences and boundaries. 'Encourage', as they are rarely enforceable. I mean, who is this 'vendor' who may send out a 'surveyor'? I presume - but could be wrong - that it's the original builder of your property, so I suspect they have long lost any interest...

In practice, most homeowners can do what they like, within reason, with their boundaries, including nothing - not having a fence. There is a limit on fence height - around 6' - but that's about it. Even then, you could grow a hedge much higher than this.

Anyhoo, what does this mean? The actual boundary is an invisible line that separates your properties. I'm going to guess, from what you say, that the existing 3' fence - which is your responsibility - is either sitting fully within your side of this 'line', or could be straddling it. One would normally - if starting from scratch - position the posts so's their far sides 'touch' the boundary line, as can best be determined. That would make the posts and fence wholly the property of the responsible person. The neighbour would then have no rights or control over it, including being able to paint it or grow anything up it without permission (tho' in practice most folk are not concerned about this - unless there's acrimony...). So, that's for when your fence, or any fence, sits fully within that person's boundary - it's theirs in its entirety, and no-one else can 'touch' it. 

So, if you said "No...", then their only option would be to build their fence wholly within their land, tight up against yours. They won't be sending you a Christmas card.

In your current situation, presumably because they don't wish to do this - they'd lose at least 4" of ground, and having two fences is just daft - they are proposing doing 'your' fence for 'you'. That would make them the owner of the materials, but it would be on your land, and you could theoretically remove it any time you like Not that you would, of course...

Bear in mind that they could almost certainly put up a 6' fence on their land if they wanted to, so you can conclude that a 6' fence will be going up regardless. And I don't blame folk for wanting that level of privacy. The Q is, will it affect the ownership of that 4" of your land if you allow them to put their fence on the existing fence line instead? The answer is 'no', because you are giving them permission to use your land - no form of adverse possession could occur. 

That is not to say it couldn't possibly cause 'awkwardness' in future, but you should always have the 'law' on your side if that were to happen. By 'awkwardness' I'm thinking of things like a new obnoxious neighbour wanting to remove that fence and thinking they can do so "'cos it was put there by the previous owner, so it's ours". For them to remove it would require them to come on to your land, so probably 'trespass - criminal property damage' or similar, tho' it would likely be a fait accompli. You'd then be back to square one - putting up your fence, on your land. So hardly a terrible worst case scenario.

I don't see their proposal becoming an actual issue, either now or in the future, and it would seem as tho' you are getting a quality fence at zero cost. To 100% cover yourself, I would suggest writing a short note - two copies - giving your permission but pointing out it will be on your side of the boundary, and it will not affect the true boundary line. Both sign both and keep. 

Have a chat about things like painting - you presume it'll be ok for you to give your side whatever shade you like, provided no stain goes through to theirs, and vice versa?

(You could mention that, being on your land, you could demand they remove it at any time, but that might sound provocative..! But if they were to, say, fit an 8' fence instead, you could.)

And make sure you have legal protection included in your house insurance from this day forth.

Personally, if happy with their design and proposal, I would try and contribute something towards it - it would be the 'right' thing to do, will still save you a shedload, and would also reduce the 'idea' that this new fence is 'owned' wholly by them.

mi-key

Rather than worry about any possible future legal problems, that will most likely never occur anyway, just sort it out with the neighbour. To be honest they are being pretty generous offering to pay for it all, and you get a nice brand new fence out of it.

Land registry boundaries aren't exact down to the centimetre anyway, and on older properties you can often find the fence line may have moved slightly with replacements over the years, so I wouldn't worry about anyone losing or gaining a few inches.

It's quite normal for neighbours to maintain their own side of the fence, i.e. painting it regularly, regardless of who technically owns it,

The only other maintenance needed is if a panel needs replacing at some point, and then its normal to offer to go halves on it.

You don't need to mess about with contracts or anything like that. I have two wooden fences I share with neighbours ( not even sure who technically owns them ! ) and we paint our own sides, and when panels need replacing just sort it out between ourselves. The other side is a tall hedge the neighbour put in before I lived here to replace the fence, and we just both trim our own sides and do the top whenever one of us is doing the rest. 

I think with anything you share with neighbours, regardless of who really owns it, it is better to just sort things out yourselves in a friendly manner as it leads to much better relations with them. 

ashe

I'd say yes because, as above, it will be going up regardless as they want privacy and I can't blame them for that, I wouldn't even consider a house with a 3 foot fence; we had one in our old house and it was annoying every time we were in the garden and the neighbour came out and we were very different people so painful smalltalk. 

Happy to be friendly with neighbours but don't want them to be involved in family get together or when we are entertaining friends or just trying to chill out in the garden. 

So to me the option is 1) continue good relations with the neighbours and get a free fence or 2) potentially sour relations with the neighbours and get the fence anyway, but as it's in their lane and they own it, you can't paint it or fix anything to it. 

Option 2 is what my parents did when their neighbour wanted a new fence - trouble is she is a loon and wants a new fence every 2-3 years so they eventually stopped contributing, so she did it anyway and forbade them form touching it. Waits until they go away on holiday and then hangs over it and paints as much as she can with a Roller from her side and leaves it looking awful. My mum died with cancer, and while she was in the hospice I was looking after the garden for my  Dad and she caught me and told me I must persuade my horrible mother to stop touching her fence. Suffice to say more than the garden got watered with the hose pipe in my hand that day.

But I would definitely avoid that sort of stiff neighbourly relationship.... it'll be happening I am sure, so just let it and keep things cordial 

GrubbyGirl_2

I live in a house where there is no indication of who owns which boundary.  My neighbour and I had a Huge hedge between out from gardens which I didn't want the hassle of maintaining and he was having problems with the roots entering his drains, so we chatted and agreed to get rid of the hedge and replace with a fence which we jointly paid for and even had it double sided so we both have the good side.  

I always think it's good to be pragmatic in situations like this so personally I'd let the neighbour get on with replacing the fence as you'll both benefit and have increased privacy, but probably worth pointing out that if you ever sell your house any new owner will consider that fence to be theirs to do with as they wish.  This at least puts down a marker and reminder that it is your fence but not in a confrontational way

ThisIsWeird

mi-key said:

Rather than worry about any possible future legal problems, that will most likely never occur anyway, just sort it out with the neighbour. To be honest they are being pretty generous offering to pay for it all, and you get a nice brand new fence out of it.

Land registry boundaries aren't exact down to the centimetre anyway, and on older properties you can often find the fence line may have moved slightly with replacements over the years, so I wouldn't worry about anyone losing or gaining a few inches.

It's quite normal for neighbours to maintain their own side of the fence, i.e. painting it regularly, regardless of who technically owns it,

The only other maintenance needed is if a panel needs replacing at some point, and then its normal to offer to go halves on it.

You don't need to mess about with contracts or anything like that. I have two wooden fences I share with neighbours ( not even sure who technically owns them ! ) and we paint our own sides, and when panels need replacing just sort it out between ourselves. The other side is a tall hedge the neighbour put in before I lived here to replace the fence, and we just both trim our own sides and do the top whenever one of us is doing the rest. 

I think with anything you share with neighbours, regardless of who really owns it, it is better to just sort things out yourselves in a friendly manner as it leads to much better relations with them. 

Absolutely, and that is often the perfectly acceptable casual arrangement between properties.

Blox is quite right to want clarification on this, tho', and I hope they are reassured. No 'contracts' are required, but if Blox would be happier having the new arrangement recorded in writing - hardly a biggie - I think that's fair enough.

It would, tho', be enough for Blox to just takes photos of the existing fence, making sure its location can be determined in some way - distance from house wall, for example, and then ditto of the new fence. The 'fence' position will therefore be shown to have not moved, and ditto for the boundary line.

We know that many humans can be petty and unreasonable, and neighbourly disputes can escalate madly out of control over trivial issues. If a bolshie new neighbour arrived, and was told this fence was 'theirs', then, you know...

There shouldn't be an issue, Blox. It is still 100% your land (assuming it currently is!)

Blox55

Thank you all that replied and on reassuring that there is no issue legally on letting them erect the new fence in the place of the existing one for which we have been so far responsible.

Note that we are not objecting on having 6ft6in fence. We know it is going up and we want to be on good terms with our (new) neighbours. I also do not blame them for wanting a higher fence. However, them paying for it I do not see this as them being generous because: 

•   they want a new higher fence, there is already a fence, albeit lower
•   they have chosen the exact style they want (at the cost of £200 per metre)

So I just wanted to check if we tell them we agree and to go ahead and replace the fence and we agree that thereafter we will maintain it jointly that I am not doing something stupid that I am paying for in the future.

twopenny

Apart from the shade such high panels are prone to being blown down by high winds because there is no way for the wind to get through.

Probably not what your neighbours want but my solution was the existing 4' fence with 2' trellis on top as I stapled some dense netting over the trellis.
Privacy but the wind can get through.

ThisIsWeird

You are right, Blox - they are not doing this for you! They want their choice of fence, and to not lose garden space - which is perfectly understandable, of course. 

(£200/m - lawdie!)

But, when you think about it, you couldn't stop them from fitting their 6' fence against your 3' one in any case, and the existing fence - which is yours - would still need 'maintenance' by you. Knowing this, and that there's no risk to your land, it would be churlish to not agree, and you will be quids-in to boot.

(Having said that, there would be no legal onus on you whatsoever to maintain this new fence, or contribute to future repairs - nothing will have changed there.)

So, big smile, and a nice chat about 'expectation'. Eg, what maintenance they would 'like' from you,  and stuff like that. I mean, if they say "We're having it stained X colour, and you mustn't do your side in any other shade!", then warning bells! 

And, if you want complete reassurance, I see no harm in asking them to confirm in writing that 'the new fence will be in exactly the same location as the old one, and the actual boundary line will not have changed'. Explain you are not doing this from current concerns, but doing so to safeguard for future owners, on both sides. In law you would be ok regardless, but it would just make any tentative remark from a new neighbour that bit easier to rebuff, right away.

There will be some folk who, on being told that the fence was put their by their house's vendor, will try and claim complete ownership of everything to do with it. They would obviously ultimately be rebuffed in this, but much easier to hold up a piece of paper and say "Non."

Happy New Fence.

Blox55

Thank you so much everybody for re-assurance and there are some very good points. ThisIsWeird, we will definitely get something written in a nice way, thanks on the advice. Happy days