Another boundary dispute

Hoenir

Exasperateddan said:

Their claim is the fence is on their property and want me to move it back onto my property as simple as that. 

That's a vague claim to make. Normally someone would make specific demands. 

ThisIsWeird

Exasperateddan said:

Hi All
Our neighbour is claiming that the fence between our 2 properties is actually on their property. We have lived here for 4 years and they have never mentioned it before, I believe it is linked to us erecting a shed next to the fence at the top of the garden, according to the title deeds and covenants the fence is our responsibility and was erected by the previous owners of our property a year before we purchased it
I have two questions
1 are we responsible for moving/removing it?
2 As they are the ones who raised the issue is the onus on them to prove that it is indeed on their property?

This may indeed have been triggered by your new shed. For example, they may have been aware that the fence was slightly over the boundary (of course, I'm not suggesting it is), but they turned a blind eye to this as it's a situation that could be addressed the next time it needed replacing, but by building a shed presumably close to this 'wrong' fence, it suddenly makes it potentially more awkward - and a bit land-grabbish - so they perhaps felt triggered into acting now? Just a guess.
What, exactly, did this letter say, and who actually wrote it? On what basis do they make this claim? And where are they saying the true boundary lies?
To try and answer your specific Q's, (1), if they can prove the fence is incorrectly positioned on their land, then - yes - it's trespassing, and they can theoretically (ie, 'legally' almost certainly yes, but it could still be awkward) make you move it. Or, having given you notice, they can remove it and (ideally) return it to you. 
It is usually the case that a fence, for which the deeds imply a 'responsibility', to be positioned just on that owner's side of the known boundary, so in this case the backs of the posts should be touching the boundary line, with all of the physical fence then sitting on your land; it is then wholly yours, on your land, fully owned by you, and they shouldn't touch it without permission.
A fence for which they have responsibility should be treated the same by them on their side. And a fence for which there is no such allocation, no written reference in the deeds, no 'T's, etc, will often straddle the boundary line and be considered 'party', with a shared responsibility, tho' often a consensus will have evolved over time, such as "Let's all look after our LH fences".
(2), yes, they cannot simply claim the boundary is wrong; they should provide evidence. If they mistakenly remove your fence and it is on your land, then it's 'trespass with criminal property damage'. If, however, 'your' fence is on their land, then they can do so.
So, what to do? Do you have Legal Protection on your house insurance? If so, call them up for guidance. Do a historic Google search to see where this physical fence was positioned before your vendor replaced it 5 years ago - did it 'move' at that point? (If so, naughty, and I think you should do the right thing. But if not, then try and work out just how long that fence was always positioned in that spot - that can have a bearing). And I'd talk with your neighbour to try and address the situation amicably, telling them you wish to arrive at the correct solution, but understandably need to know what that is! Ie, evidence of where the true boundary lies. Just where are they claiming it is? How and why?
Are there any fixed objects shown in your respective deeds plans which help to determine the true boundary line? The house, an outbuilding, gate pillars, a corresponding boundary with a neighbour the other side of the bottom of your garden - are your houses, and the houses at the bottom of your respective gardens, the same plot widths? You aren't 'semi' or terraced, are you?
If the neighbour is claiming, even correctly, that the fence is simply on the wrong side of the boundary - Ie, just on their side and touching the line, instead of just on yours, then I'd suggest their behaviour is somewhat churlish at best. In which case, you could try suggesting that they take ownership of it until it needs replacing, whereupon it'll revert to your side, so they can do with it what they like until then. Or you'd be 'happy' to acknowledge in writing that you will relocate it when it next needs replacing. If they insist you move the existing fence 4" right away, at the silly cost and hassle of you having to do this, then I'd make your bemusement clear, and might even counter with, "Wow, ok, I'll move it, but no idea when I'll be able to get around putting it back up...", and you could leave the boundary open for months, even years, and begin to practice naturism. And star jumps. That'll larn them.

If you have dawgs or chickens you need to contain in this scenario, put up a wire fence.

What could they do about this? Nothing. What would they have to do to restore privacy? Yup - they'd need to put up a fence on their side of the boundary line, where your fence was - ie they gain now't.

Did I say 'churlish'? :-) Yes, but a way of demonstrating how unreasonable them forcing a 4" move would be; they could end up with either zero privacy, or having to install their own fence in exactly the same place. You may wish to explain this with a friendly chuckle as if to say, "Of course, I wouldn't really do that! Or would I..."
In short, get LP advice - be guided by them. First do your research on where the fence was located historically, and for how long - Google Earth historic (boundaries can move). And then have a friendly chat.
If the fence is completely in the wrong position, then - of course - you should do the right thing and address this. If it's only 'just over the line', then I think they are being churlish, and it's worth making your thoughts clear; "Really? This is about a fence-post's thickness? And you want me to move a new fence now, and not wait until it needs doing anyway?! Wowser... Ok, then, but you ain't gonna like it... (rubs hands and licks lips...)"

Exasperateddan

Thanks,  a lot of what you say makes sense, I had considered taking the fence away completely although I don't fancy doing naked star jumps, but I think I will sit tight and wait for them to provide some evidence and for the sake of peace I would get it moved if necessary.I will also bear in mind my home insurance as it does cover legal issues involving the house.  I may have jumped the gun a bit but just thought it would be a good idea to get some idea of who does what in these circumstances 

ThisIsWeird

Exasperateddan said:

Thanks,  a lot of what you say makes sense, I had considered taking the fence away completely although I don't fancy doing naked star jumps, but I think I will sit tight and wait for them to provide some evidence and for the sake of peace I would get it moved if necessary.I will also bear in mind my home insurance as it does cover legal issues involving the house.  I may have jumped the gun a bit but just thought it would be a good idea to get some idea of who does what in these circumstances 

Could you tell us the content of their letter, please, and who actually wrote it?

And, since you have LP, you can call them up for a chat at any point - I'd do that sooner. This will not cost you anything. It will not open a 'dispute'. It is simply asking for advice and guidance.

As I said, if the fence is truly poorly positioned and has cost them a 'significant' amount of land, then the 'right' thing to do would be to move it. How you do this would likely come down to just how much land is involved, how accurately this can be evidenced, and their attitude! 

So they either persuasively demonstrate to you, say by referring to fixed items on both your plots, that the fence is clearly incorrectly positioned, to the point you are 'happy' to accept and acknowledge this, or they need to obtain independent 3rd-party evidence, eg a land survey (which will typically cost them many £100's). 

They mustn't act unilaterally and start taking your fence down. If they do, record it, tell them firmly to 'stop damaging my fence', and call the local police in front of them. The police may try and claim it's a civil matter, but you insist it's 'trespass with criminal property damage'. They should advise the neighbour to 'cease and desist', and to 'sort this the correct legal route'. They won't, of course, get involved in the actual 'dispute'.

The 'leaving the fence down' is just something to entertain if the neighb really acts in an obnoxious manner, and it was simply a case of the fence being just on the wrong side of the invisible line. Bottom line (oops, I said 'bottom') is that you do not have to put up a physical fence that 'screens' - a single length of wire between two posts will do :-) So, if they behave unpleasantly or unreasonably, then you can remove your fence, but they can bludy well put a new one back up.

Also bear in mind that, unless there are actual measurements on the deeds (very very rare), or unambiguously-positioned immoveable objects such as buildings, garages, old gate posts, etc., from which to determine the boundary, or the house is semi or terraced (from which it should be easy to determine where, exactly, they join - so, are they?), then boundaries can be hard to determine to a specific degree of accuracy. The 'line' shown on deeds maps - especially old ones - can represent one or two feet thickness on the 'ground'.

the_lunatic_is_in_my_head

Exasperateddan said:

 according to the title deeds and covenants the fence is our responsibility

Hello OP

What exactly does it say about the fence in the deeds?

Often there is an obligation to maintain a boundary which can be done with some sticks and string or a row of rocks. 

BarelySentientAI said:

If they're right, they can make you move it, or get it moved and send you the bill.

So depending on exactly what the deeds say, if they don't specifically require a fence but a boundary the above is correct that if on your neighbours property they could have you take it down and physically remove it from their land, however there might not be an obligation to move the fence to a new location. 

If that were the case, and assuming you don't have a dog, would your neighbours be happy with some string between the gardens? 

If you don't have a dog but your neighbours do they are then going to be responsible for keeping the dog in their garden. 

They might be biting their nose off to spite their face, really depends what we are talking here, is the fence 2cm into their garden or half a metre? 

BarelySentientAI

the_lunatic_is_in_my_head said:

BarelySentientAI said:

If they're right, they can make you move it, or get it moved and send you the bill.

So depending on exactly what the deeds say, if they don't specifically require a fence but a boundary the above is correct that if on your neighbours property they could have you take it down and physically remove it from their land, however there might not be an obligation to move the fence to a new location. 

If that were the case, and assuming you don't have a dog, would your neighbours be happy with some string between the gardens? 

If you don't have a dog but your neighbours do they are then going to be responsible for keeping the dog in their garden. 

They might be biting their nose off to spite their face, really depends what we are talking here, is the fence 2cm into their garden or half a metre? 

Quite true - I should have said "remove" and not "move".

I like the idea of taking it down and telling them that if they want a fence they can put one up on their own side of the boundary - especially funny if it ends up being further into their garden.

MeteredOut

We really need to know how far the neighbour is expecting/asking the OP to move the fence.

I doubt the neighbour realises the OP could just remove the fence and have no physical boundary between the properties; unless a large piece of land is in dispute, I suspect highlighting that alone might get the neighbour to revisit their request.