Real-life MMD: Should we pay to shrink our garden?

luxor4t · 3 January 2013 at 11:33AM

barginpleasure wrote: »

This should have been picked up on in the conveyancing ... I would say go back to the conveyancer/solicitor and question why they did not pick up on this ..........

^ This.

It should have come up in the conveyancing as the outgoing owner is required to declare any such disputes etc but your solicitors are also required to check too.

Like other posters I think your neighbour's claim to "have just found out" is disingenious.

londonlydia · 3 January 2013 at 11:39AM

I agree woth Paolojf...if it is their land then technically speaking they have a fence cutting off a bit of their garden a bit short, and you dont have a fence at the end of your garden. It depends on what's in between (do you have any plants etc there?).

Interesting how it happened though...any chance there was originally a path between the gardens? It may be that there is a right of way at the end of their garden (and they may own the land). I own the path at the rear of my garden, but have to allow access to the owners of the other's houses with garden gates ont it.

duchy · 3 January 2013 at 11:43AM

Hmmmm "Just found out" Did she explain HOW and exactly when she just found out ? If she didn't I'd "pop round" all smiley and say your solicitor is asking for this information to look into the issue and also wanted to know how long the fence had been up for...............and see how she reacts.

Once you've gauged her reaction (and hopefully got the info) that's the time to approach your solicitor .

Not sure WHY this is tagged an MMD though -it's a point of law not morality

pheasant_plucker · 3 January 2013 at 11:51AM

Firstly can you check with the previous owners whether the boundary subject was raised with them. They have a legal duty to inform new prospective purchasers of any ongoing disputes with neighbours. If there has been no previous concern about the boundary and it has been in place for 12 years then you can claim squatters rights over the parcel of land contained within the fence. This will of course !!!! the neighbours off and will be an ongoing sore ad infinitem. If the time is less than 12 years the neighbour is entitled to claim the land back, especially as you have agreed that it is theirs, however why not suggest to them that you will contribute half the cost of the fence if also the parcel of land is also split down the middle so both parties have achieved something without expensive legal costs and would be acceptable to you both. I cannot imagine the area of land can amount to much and not worth fighting over.

dougthejag · 3 January 2013 at 12:02PM

Intrigued as to why people automatically assume it was the solicitor's fault. Is the solicitor supposed to physically check the boudaries of every property he purchases?? Usual practice is for solicitor to send a copy of plan to purchaser and tell him/her to ensure the plan corresponds to the land being purchased. If he didn't I agree there is scope for complaint.

ucfadll · 3 January 2013 at 12:07PM

Three quick thoughts:

1) All the posters who are blaming your solicitor are (probably) wrong. Your solicitor would have had a copy of the title deeds or office copy of the Land Registry registration. This would have shown the correct boundary. However, there is no way for that your solicitor could have known where the actual fences are on the ground (how could they; they've not been there). In fact, your report on title probably would have contained a statement along the line of "here is a plan of the registration; please check that the boundaries on the ground line up with where they should be". So if this is the case, it will actually have be your own fault it was missed, rather than your solicitor's, I'm afraid.

2) If this had been raised with the previous owner, the vendor should have declared it. If they knew about the dispute when they owned the house and did not declare, you could make them liable for the problem as they have misrepresented the sale.

3) Finally, assuming that it is a "new" issue and you cannot keep the land under adverse possession (others have covered this in more detail already) you need to decide whether the shared cost of a new fence is worth good relationships with new neighbours. If it is very expensive or you don't want to pay, you could just say "if you want to move then fence to the correct location, that is fine, but it will be at your own cost as I am not responsible for the error". But, on the other hand, if the cost is relatively small you might just make your own lives better by helping to pay - either 50% or something less by negotiation.

Good luck!

(source of information: my wife is a commercial property solicitor)

AshleyJane · 3 January 2013 at 12:23PM

Many people are quick to be ignorant to such situations and proclaim things such as 'if they want it they can pay for it' so on and so forth. Although I can completely understand that response it simply does not work like that and taking that attitude is not the answer. Not only is that attitude an unhealthy one, but one that will only create even bigger divides and issues.

As stated already if the fence has lay there for 12 years then legally the land and new boundary line is yours - this is something I would agree to bat back to the neighbour in question and get them to prove otherwise. There is also an issue with regards to this being missed whilst being sold etc and that is something you may want to consider as a sideline issue to take up.

However, properties with gardens with ajoining neighbours mean that you will always own one garden fence that you are responsible for and that will already be determined legally from plans. If the fence in question is the side you are legally responsible for then you have an obligation to cover that cost if it is proven to be in the wrong position. I am not suggestion you throw money at it if it is your side of responsibility I do believe you should do your homework and again, bat it back to the neighbour - as politely as possible get them to start proving this rather then them throwing speculation around.

Where I have stated about peoples quick ignorance to shout things such as 'I wouldnt pay a penny' etc ... and again completely understand the outrage I have been witness to this exact situation with my fathers property whereby new neighbours arrived and requested the fence was moved - the fence was there for over 18 years and my father was able to prove that and had previous neighbour witness statements. It is not as simple as proving your case and going to court it DOES NOT work like that - in order for this to occur you have to start attending things such as mediation to show your willingness to resolve such issues before a court will even look at this and even with proof your neighbours can still argue it for as long as they like and for as long as they can afford to argue it for and it ALL costs money. The moral of the story is even though my father proved undoubtedly that legally the fence was able to stay and had witness statements and photographic evidence, because the neighbours wanted to pursue the matter it meant my dad had too also, as he could not simply say he was not interested. My father did have to respond to solicitor letters and attend and pay for mediation including the cost of the mediators and the room itself etc (obviously the neighbours also had a cost for this but this ran into the £100's for each person) - my father offered a reasonable resolution to try and keep all parties happy for the sake of a couple of inches and any further costly legal argument but that was declined and the neighbours insisted on pursuing it to court. At court the decision that was ruled was the offer my father had made in the first place however, by this point the legal cost of this for both parties combined costs was £45k+. My fathers bill was in excess of £15k+ and the neighbours solicitor requested that they share some of the legal costs as it was a joint issue baring in mind our neighbours legal bill was almost £30k ... What you have to consider before going down this route is: can you afford it both financially, emotionally and time wise and is it worth it? Although I understand the moral dilemmas and the frustration with someone who is insistent on arguing please do not cut off your nose to spite your face. My father wishes he hadnt bothered with it in the first place and would have much rather afforded them the extra inches as the end results in his opinion were not worth the aggrevation and upset caused but equally dont feel bullied into anything or lay down and play dead - just evaluate and know what is worth the fight in the long run.

louisekeefe · 3 January 2013 at 12:38PM

No you should not be paying! I've just sold part of my garden to a neighbour and she paid for everything including a fence that she is to maintain. I did very well out of it too!

passau91 · 3 January 2013 at 12:46PM

It's worth directing this claim to your solicitor initially, BUT purely on a 'why did you not alert me to this' basis - do not pay them anything extra, as your conveyencer should have spotted this. Land disputes can be an absolute nightmare and have ZERO to do with fairness or justice and are almost always a hiding to nothing.

I thought the rule for 'adverse possession' was 12 years, but again, you'd only get into a potentially expensive tit for tat argument and good solicitors will refuse to act on such land disputes.

Take a detached dispassionate view - if you agree with your neighbour that the boundary is in the wrong place, your default positions would be to say to your neighbour: (a) we agree, but what's wrong with leaving it until the fence needs replacing? (b) we agree, but if you want to change the fence now, you pay for it; or (c) we agree and we'll pay half if we have joint decision on which fence is used.

As an aside, there is usually a common-sense approach to fences, but I can't remember if you're deemed to be 'responsible' for the left or right boundary of your garden.

Your neighbour won't be able to compel you to pay for the fence (as far as I am aware, unless there is a positive covenant, which is almost unheard of) - but the monetary cost of falling out with a neighbour is far outweighed by the amount of upset and unpleasantness which may last for years into the future, so take a detached view based on how your neighbour reacts to each of the reasonable approaches in (a) to (c) above ...

Dunpony · 3 January 2013 at 12:56PM

I'd be wanting to sit down (over a cup of coffee?) and talk it over, after checking it out per previous posts so you know where you stand re possession. You really need to sort it out amicably otherwise you'll have an house that's impossible to sell and bad neighbors.

I'd be looking for what seems fair. It depends on the size of the piece of garden at issue, and the relative size of the gardens as a whole. Money comes into it too - I can't imagine that someone who has just bought a house has much left in the kitty! Compromise is the name of the game

Real-life MMD: Should we pay to shrink our garden?

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