Potential Boundary Dispute, Resolution tips and Impact on Selling

Sapen1518

Hello! 

I appreciate any information that might help me move forward with my neighbour, 3 fellow leaseholders and a freeholder to avoid a boundary dispute.

I own a garden flat in a building of 4 flats (a converted Victorian home). We are all leaseholders, with one of the flats also owned by the freeholder (the freeholder rents this flat out). I have owned here for 5 years, the other owners in excess of 25 years each.

My access to the flat is solely through a side accessway, the other 3 leaseholders access their flats through the main front door. 

The first 8 metres section of the passageway from the front gate to my front door is "communal" to allow access to gas meters which are by the front gate. The remaining 6 metres are just mine, outlined clearly on the lease. 

The 4 flat owners (including the freeholder) agreed to replace the fence along the accessway (and splitting costs to reflect the shared versus exclusive ownership 8m/6m).  The next door neighbour (with no ownership of our building) declined any responsibility but happily consented to the fence being replaced and access to his side passageway for the work to be undertaken. 

The fence company, unbelievably, narrowed the accessway when they erected a new front gate post and subsequently changed the existing fence line to the benefit of next door, he gained land. They did this without my knowledge and when I explained this to them later that evening, they agreed to return and reinstate the fence line to exactly as it was. 

The very next day when the fencers arrived, the next door neighbour threatened them that if they returned the fence line to exactly as it was the day before the work started he would rip it down. He claimed that the fence company was "correcting wrongs of the past" and that he had a dispute with the previous owner of my flat about the boundary and fence line, saying it should be equidistant between the two properties. The fence company left, intimidated and confused, without correcting their error for fear of the neighbour.

The neighbour is now demanding the whole fence is removed and replaced equidistant between the two buildings for him to "claim back lost land" from the previous owner. Our freeholder is intimidated and wants to avoid conflict and having to declare a dispute with our hostile neighbour in any future sale so she's inclined to agree to him, at our expense! She says she is "ambivalent" because she doesn't live here.

My questions are: 

1. Can the freeholder change/give away communal space that is defined by the lease?

2. Further to point 1, the narrower width mostly impacts me as this narrower gate and passageway are the main entrance to my home. a) Is the freeholder allowed to change access to my property even if my access is through communal space? b) Do we need a lease variation for this?

3. Does my neighbour have any argument or right to have a passageway equal in width even though there is no record to show it was ever in his favour or has ever been changed? 

4. If we did reach a compromise and the neighbour retracts his claims, does that have to be listed as a dispute in the Property Information form when any leaseholder sells?

5. Can our neighbour prevent our tradespeople, that we have paid for, from returning to replace the fence line to exactly as it was when they started (we have photographic evidence to show this).

6. Can the tradespeople refuse to return because of the neighbours intimidation but still demand the outstanding balance that is owed (60% of total)?

The previous owner of my flat lived here for almost 30 years. She made no legal disclosure in the sale on the Property Information Form. Furthermore, no other leaseholders or the freeholder have any knowledge of a historic dispute. I have asked the neighbour for evidence to support this claim, to which he has none. 

Thanks for sticking with this story if you have gotten this far. I appreciate any information or further resources to refer to. 

CSI_Yorkshire

Sapen1518 said:

3. Does my neighbour have any argument or right to have a passageway equal in width even though there is no record to show it was ever in his favour or has ever been changed? 

Boundaries are not exact.  If that's where the owners agree the boundary is, that's where it is.

Sapen1518 said:

5. Can our neighbour prevent our tradespeople, that we have paid for, from returning to replace the fence line to exactly as it was when they started (we have photographic evidence to show this).

The neighbour can request that.  The tradespeople agreed.  Do you really think that just because you've paid the trades, you can force them to work in circumstances that you claim are "intimidating"?

The neighbour can refuse access to their land if they like.  You'd struggle to claim that it was needed for maintenance as it's a new fence and any work could be done from your side.

Sapen1518 said:

6. Can the tradespeople refuse to return because of the neighbours intimidation but still demand the outstanding balance that is owed (60% of total)?

You've paid them to put up a fence on the boundary.  There is a fence on what appears to be agreed between the owners as the boundary.  Pay them.

How much have you actually lost here?  Is this an argument about a couple of feet or a couple of inches?

sheramber

the narrower width mostly impacts me as this narrower gate and passageway are the main entrance to my home. 

How exactly does it impact you?

Sapen1518

@CSI_Yorkshire Thanks for the above. The fence payment is the secondary issue really, fair point about them working in an intimidating situation though. 

The fencers CHANGED the boundary line, it benefits the neighbour, giving him about 2 feet more width. No owner agreed to this change made by the fence company. This loss of width is important because it limits my access to my front door, via gas meter boxes in the communal accessway.

The neighbour, who originally consented to the fence replacement but assumed no responsibility, has seen it as an opportunity to land grab and is now saying a whole new boundary line should be created and made equidistant to both properties. This would involve removing the new fence and would give him an additional 2-3 feet and further limit my access to my front door through the communal accessway.

If the freeholder agrees to the neighbours demands, is a lease variation necessary because it reduces the communal land granted in the lease?

Thanks

CSI_Yorkshire

Sapen1518 said:

If the freeholder agrees to the neighbours demands, is a lease variation necessary because it reduces the communal land granted in the lease?

It's unlikely that your lease was so accurate as to say "an X foot wide communal access area" or "Y square meters of communal grounds".

You have probably leased "the area shown on the title plan", which can be read as "the area up to the boundary between properties".  In which case, by the terms of the lease, the plot has not changed.

eddddy

Sapen1518 said:

If the freeholder agrees to the neighbours demands, is a lease variation necessary because it reduces the communal land granted in the lease?

When you come to sell, would a potential buyer look at the lease plan and say "the boundary is in the wrong place" (and would they care)? If so, it might make be helpful to get the lease plan modified (via a lease variation), to make a sale go through more smoothly.

But if the approximate nature of a lease plan means that a buyer wouldn't notice an anomaly, there's no real need to change anything.




Edit to add...

Are you trying to use the 'lease variation' argument as leverage with your freeholder? For example, you want to say to the freeholder "Unless you persuade the neighbour to agree to moving the fence back, you'll have to vary all the leases"?.

I guess you could put that argument to the freeholder, and see what they say. 

eddddy

Taking a step back...

• In general, if your lease says that your freeholder gives you the right to use some communal space, and some of that communal space is taken away - your argument is with your freeholder.

• You would tell your freeholder that they are breaching the lease, by not giving you the use of the communal space that your lease entitles you to.

• So typically in this case, your dispute is with your freeholder, and the freeholder would have a dispute with the neighbour.

But in this case, it sounds like it may not be so clear-cut. Typically, a lease would say that the freeholder is responsible for maintaining the fence. But you say things like...

• The 4 flat owners (including the freeholder) agreed to replace the fence...
• If we did reach a compromise...
• Can our neighbour prevent our tradespeople...

So who arranged for the new fence to be built, and instructed the fencing company, etc? Was it the freeholder? Was it you? Was it all 4 of you?

And who was the work being done on behalf of? For example, was the work being done on behalf of the freeholder?


So for example, if you arranged for a fence to be built on behalf of the freeholder, and that fence has been built in the wrong place - the freeholder might regard you as negligent. And the freeholder might feel it's up to you to rectify the problem.

I guess a lot depends on what exactly was agreed.

Sapen1518

@eddddy thanks, you've picked up on a lot of the nuance of this situation eg the lease variation and the instruction of work

The freeholder wears two hats because they also own a flat. Much of this year we've held fortnightly meetings to discuss a number of maintainence projects. Each owner has taken the lead on a different area to help with the burden. I have been the one primarily dealing with the fence because part of it, from my front door down the access way to my garden, is exclusively mine. We had 2 seperate invoices, with the communal part of the fence being split 4 ways. The other invoice is just mine.

The part of the fence that the fencers moved, decreasing width, is the communal section because the error started from the alignment with a new front gate post.

I instructed the fencers, with agreement from all parties, including the consent of the neighbour to access his land. I did question the width when the fencers were onsite and still incomplete,  feeling it was narrower, they denied it had changed. When I reviewed the before and after photos it was really clear and that's when they admitted their error. 

I appreciate your perspective that my issue is possibly with the freeholder rather than directly with the neighbour. The freeholder has asked that I resolve it though as she is "ambivalent". 

koalakoala

How could they get it so wrong? I would be inclinedto get them to sort it

ThisIsWeird

Sapen1518 said:

@eddddy thanks, you've picked up on a lot of the nuance of this situation eg the lease variation and the instruction of work

The freeholder wears two hats because they also own a flat. Much of this year we've held fortnightly meetings to discuss a number of maintainence projects. Each owner has taken the lead on a different area to help with the burden. I have been the one primarily dealing with the fence because part of it, from my front door down the access way to my garden, is exclusively mine. We had 2 seperate invoices, with the communal part of the fence being split 4 ways. The other invoice is just mine.

The part of the fence that the fencers moved, decreasing width, is the communal section because the error started from the alignment with a new front gate post.

I instructed the fencers, with agreement from all parties, including the consent of the neighbour to access his land. I did question the width when the fencers were onsite and still incomplete,  feeling it was narrower, they denied it had changed. When I reviewed the before and after photos it was really clear and that's when they admitted their error. 

I appreciate your perspective that my issue is possibly with the freeholder rather than directly with the neighbour. The freeholder has asked that I resolve it though as she is "ambivalent". 

I find it nigh-on completely implausible that the fencers made an 'error', certainly one of 2 feet. I mean, how on earth could they?!

A photo would help here, but surely the original fence line is still apparent from, say, old post holes, a ridge in the grass, proximity to paths and pavements, whatever? It's moved two feet?! Can you see the original position?

If you haven't already paid the fencers, I certainly wouldn't - they have not carried out the work that was contracted.

How to sort out this neighbour's claim? Step one is for the FH to grow a pair. They are 'intimidated'? In what way - they reckon they'll have their lights punched out by him? What, exactly, has this person done to intimidate everyone? Legal threats? What?

In any event, he cannot simply claim where the boundary should be - he needs to prove it.

Because the fencers messed up, it has made life a lot more difficult. But - in theory - provided the fencers also grow various sets of 'pairs', they should come back, and move the fence to the patently obvious original position, with as many of the LHs present as possible, phones at the ready. You record all this, and as soon as the neighbour makes any noise or move or threat to touch the fence, you call the police. Everyone explains what the problem is, the fencers confirm they got the line wrong and should - for pity's sakes - be able to point to the obviously correct original line, and everyone who felt they were 'intimidated' by this neighbour should state clearly and boldly and loudly what it is the guy did. The Bobby should tell the neighbour to C&D and to take the correct legal action if they truly believe the boundary is in the wrong place.

From your pov to the police, this should be a simple case of one fence being replaced by another, in exactly the same place as the original, and which you have no reason to doubt is the correct boundary line; you do not understand the neighbour's claims, they have not mentioned anything about this before, and you can only conclude he's an opportunist who saw a mistake being made, and tried to intimidate everyone into accepting it.

Or, you all lose a couple of feet because the guy is a bully.

user1977

ThisIsWeird said:

Sapen1518 said:

@eddddy thanks, you've picked up on a lot of the nuance of this situation eg the lease variation and the instruction of work

The freeholder wears two hats because they also own a flat. Much of this year we've held fortnightly meetings to discuss a number of maintainence projects. Each owner has taken the lead on a different area to help with the burden. I have been the one primarily dealing with the fence because part of it, from my front door down the access way to my garden, is exclusively mine. We had 2 seperate invoices, with the communal part of the fence being split 4 ways. The other invoice is just mine.

The part of the fence that the fencers moved, decreasing width, is the communal section because the error started from the alignment with a new front gate post.

I instructed the fencers, with agreement from all parties, including the consent of the neighbour to access his land. I did question the width when the fencers were onsite and still incomplete,  feeling it was narrower, they denied it had changed. When I reviewed the before and after photos it was really clear and that's when they admitted their error. 

I appreciate your perspective that my issue is possibly with the freeholder rather than directly with the neighbour. The freeholder has asked that I resolve it though as she is "ambivalent". 

You record all this, and as soon as the neighbour makes any noise or move or threat to touch the fence, you call the police.

The police? You expect the cops to get involved in conveyancing? It's a civil dispute (unless there's actually a threat of a breach of the peace). The police have better stuff to do with their time.