New build house - boundary fence in incorrect position

New build house - boundary fence in incorrect position

Postby wtc » Tue Dec 01, 2015 6:32 pm

Hello All

I live on a new build development but I believe the fence between my property and a neighbour was put in the wrong place. The area under dispute is a tapering strip with length 24m, width 1.5m at one end and zero at the other end. About 18 sq m in total, or nearly 200 sq ft in old money.

My house and that of all close neighbours were bought off plan. At reservation, we were shown a 1:200 works plan and 1:500 conveyance plan, signing a form to state we had observed these (and other) documents. For us, using the 1:200 plan, the salesperson used a scale rule to measure the garden dimensions to the nearest metre and wrote them in pencil on the developer's copy in our file. I took a photo of this at the time. Exchange of contracts used the same conveyance plan, as did the TP1 at completion.

It occurred to me a few months after moving in that the fence position could be incorrect. I did mention something to the neighbour in passing that I would be raising it with the developer, who seemed to be happy to let them sort it. I did raise it with the developer and it has been a long process, with them initially not seeing the problem. Eventually they did realise the error, with the blame placed on the fencing subcontractor. The developer will (and has already - but see below) arrange for the fence contractor to come back and reposition the fence correctly.

However, the OS plan has been drawn up from the current fence position. Therefore, the title plans of mine and my neighbours property are consistent with the current fence position, not where it should have been placed.

I am about 18 months on from having first raised it. At the developer's end, it often seems to be either sat with their legal team or sat with technical. My neighbour had stated his main concern is that if the fence were to be moved, it would be inconsistent with his title plan. However, he is - unsurprisingly - somewhat defensive about 'losing' some of the garden he currently has, but his beef is with the developer, not me. This is partly due to an appointment being made to move the fence, without the developer formally having set out the issue to the neighbour.

I don't really know who to believe as I get a different story from the developer and my neighbour about communications between them both. How they resolve things between themselves is down to them, but while unresolved, I'm no further forward.

I had struggled to get my neighbour to accept that a title plan only shows general boundaries, but he has been looking at a website on boundary issues and thinks that a surveyor for mediation would be useful.

I don't want to let things continue to drag. I have legal expenses cover through my home insurance but that only covers pure legal costs, so surveyors etc are excluded. Their legal advice line - that I agree with - is to sort it out without getting solicitors involved if at all possible.

I'm not sure what my next steps should be. I think it would be worthwhile to appoint a chartered land surveyor, perhaps jointly with my neighbour. I think mediation would be a later step upon a stalemate. I feel I just need my neighbour to open his eyes to what the legal documents show first. So for now, I believe the surveyor should:
* Measure the current ground layout
* Establish the boundary with reference to the appropriate documents
* Draw up a plan suitable for Land Registry boundary determination

Is this sufficient? I would want to ensure the second step isn't skipped! I presume the first step is necessary both the show there is a problem with the fence position and to set the determined boundary with reference to position of buildings. I'm under the impression that a surveyor carrying out a mediation may charge a lot, though I am not sure what extra there is that costs other than their time. What am I missing? I haven't phoned the RICS helpline yet.

As this is neither mine nor my neighbour's fault for the fence position being wrong, I feel the developer should be bear the financial responsibility here. Although not their fault either, mine and my neighbours contracts were with the developer, not their subcontractor. I had hoped to get their cooperation to supply original scale plans and pay for a surveyor, but communications with them are not always easy. If I cannot get them to agree to pay for a surveyor and I pay for one myself - and it shows what they and I already know that the fence was wrongly placed - would it be worth taking legal action against them to recover the costs?

Thanks in advance for any suggestions.
wtc
 
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Re: New build house - boundary fence in incorrect position

Postby MacadamB53 » Tue Dec 01, 2015 7:26 pm

Hi wtc,

who owns the fence?

Kind regards, Mac
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Re: New build house - boundary fence in incorrect position

Postby jonahinoz » Wed Dec 02, 2015 8:18 am

Hi wtc.

Which do you want? The land? Or cash?

What is the value of the land? ... Google will probably have an answer. Probably small change to the developer. Possibly cheaper for him to pay you off, than pay a solicitor or barrister to meet you in court.

My feelings, for what they are worth, are that the developers, their representatives, sub-contractors, etc. can say/offer what they like, nothing is written in stone until contracts are exchanged. What did the contract that you signed, and was witnessed, say about this boundary? Is the boundary where it was shown on the plan that formed the contract? If so, it would be interesting to see what was shown on your neighbours contract. Did the developer sell the same strip of land twice?

Were contracts exchanged before the fence was erected? Was your neighbours purchase completed and registered before yours? I assume Land Registry drew their map from plans provided by the developer, or the two purchasing solicitors. If your neighbour's plan was wrong, but he got it registered first ....

John W
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Re: New build house - boundary fence in incorrect position

Postby wtc » Wed Dec 02, 2015 12:42 pm

Hello, In response to the queries:

MacadamB53 wrote:who owns the fence?

The fence is owned by the neighbour according to the transfer.

jonahinoz wrote:Which do you want? The land? Or cash?

What is the value of the land? ... Google will probably have an answer. Probably small change to the developer. Possibly cheaper for him to pay you off, than pay a solicitor or barrister to meet you in court.

It is the land that I am after. The cash value as only garden to one of two houses would probably be low. The land would be worth more to me than its cash value.

jonahinoz wrote:My feelings, for what they are worth, are that the developers, their representatives, sub-contractors, etc. can say/offer what they like, nothing is written in stone until contracts are exchanged. What did the contract that you signed, and was witnessed, say about this boundary? Is the boundary where it was shown on the plan that formed the contract? If so, it would be interesting to see what was shown on your neighbours contract. Did the developer sell the same strip of land twice?

Were contracts exchanged before the fence was erected? Was your neighbours purchase completed and registered before yours? I assume Land Registry drew their map from plans provided by the developer, or the two purchasing solicitors. If your neighbour's plan was wrong, but he got it registered first ....



The contracts as signed and witnessed have little wording about the boundary other than referring to a plan with a line outlined in red. This plan was consistent with everything signed at reservation. The same plan was on the TP1. What I am after is that outlined plot, which is not where the fence is at present.

I cannot believe the neighbour has a different contract, though he had not been willing to show his contract or transfer to me. Both of us used the same purchasing solicitors. He did the reservation formalities within days of us (I think just before us) but exchanged contracts one day later. This exchange was when the properties were at foundation level, when the developer refused site access, well before the fence was erected.

My property completed and was registered first. While Land Registry are given a signed plan in the TP1, their map is exclusively based on what OS had done at the time. The OS map has some boundary around the property with approximation (and incorrect fence position), so wherever the OS lines are, Land Registry draw their red line along them.

As it happens, immediately before completion, I did comment on the red line in the TP1 missing out a tiny chunk of driveway, bordering with the neighbour on the other side. Tiny as in a triangle of well under half a square metre. The developer's solicitor's commented that this had already been subrogated to that neighbour. Given the small area, I let it go. I don't believe the developer will have sold the same land twice.
wtc
 
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Re: New build house - boundary fence in incorrect position

Postby MacadamB53 » Wed Dec 02, 2015 1:00 pm

Hi wtc,

I don't believe the developer will have sold the same land twice.

nothing suggests they had.

unless the whereabouts of the boundary was clearly defined in the deed I don't see you being able to prove the land is yours.

I accept that someone wrote a measurement on a plan at some earlier stage and why you might believe this constitutes proof - but it does not.

that said, if you and the neighbour are in agreement then surely the simplest solution is to replace the fence yourselves and take the developer through the small claims process...

Kind regards, Mac
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Re: New build house - boundary fence in incorrect position

Postby wtc » Wed Dec 02, 2015 1:52 pm

Just to reiterate, the neighbour and I are not in agreement - that is the problem.

It may depend on what you mean by 'clearly defined', but if both my transfer deed and his transfer deed shows the boundary running from A to B, but the fence is running from A to C, how can I best go about getting the neighbour to agree for it to be moved?
wtc
 
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Re: New build house - boundary fence in incorrect position

Postby MacadamB53 » Wed Dec 02, 2015 2:38 pm

Hi wtc,

how are you able to prove where B is?

all the developer agreed was to sell you a parcel of land that could be identified by the accompanying plan - which showed the parcel was bound by a fence but not the precise location of that fence.

the best you could do is try and recover some money from the developer by claiming that by allowing you to witness him sketching down some rough measurements for his records he misrepresented what was to be included...

...but you suggest the land is of very little value in monetary terms, so why bother...

Kind regards, Mac
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Re: New build house - boundary fence in incorrect position

Postby wtc » Wed Dec 02, 2015 3:17 pm

Does this help show why I have the issue?

Image

The contracts and the transfer deeds show red lines as the boundary, on a line from A to B and if continued to the corner of the backing house. (At the side and front, the boundary is the neighbour's house wall - with overhanging eaves). The contracts and deeds show the two gardens to be about the same size. The fence was put in parallel to the neighbours house wall.
wtc
 
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Re: New build house - boundary fence in incorrect position

Postby MacadamB53 » Wed Dec 02, 2015 4:09 pm

Hi wtc,

thanks for the plan - it clearly shows what you've been describing.

unfortunately, though, I don't think it changes the situation - the plan accompanying the application to HMLR was for indicative purposes only and it indicated the transfer was to include the land between the fences.

my comments are based on the assumption that the dimensions of the parcel and the whereabouts of the boundaries were not mentioned in the deed.

Kind regards, Mac
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Re: New build house - boundary fence in incorrect position

Postby wtc » Wed Dec 02, 2015 5:29 pm

It would surprise me that a cock-up by a fence erecter ignoring the plans carries greater legal weight than a witnessed deed. Though if boundary resolution was easy, then this site wouldn't exist.

I'll recheck the wording tonight as to what was conveyed.
wtc
 
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Re: New build house - boundary fence in incorrect position

Postby MacadamB53 » Wed Dec 02, 2015 6:14 pm

Hi wtc,

what carries greater weight is, as you say, what was stated in the deed - specifically para4 of the TP1.

if you could post the wording (with any personal details redacted) we can take a look...

Kind regards, Mac
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Re: New build house - boundary fence in incorrect position

Postby MacadamB53 » Wed Dec 02, 2015 8:06 pm

MacadamB53 wrote:Hi wtc,

what carries greater weight is, as you say, what was stated in the deed - specifically para3 of the TP1.

if you could post the wording (with any personal details redacted) we can take a look...

Kind regards, Mac
just rectifying a typo
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Re: New build house - boundary fence in incorrect position

Postby jonahinoz » Wed Dec 02, 2015 9:13 pm

Hi wtc,

In a "discussion" I had with Land Registry, I was told that LR are required to work from OS maps.

Ordnance Survey told me that their maps show topographical features, not boundaries. They were unable to explain how a boundary fence with a dog-leg could become a straight fence between one issue of the map and the next, especially as the original dog-legged fence was still in place.

I suspect that an LA cartographer, (or clerk), had straightened the boundary of their LA property, during some other property changes, passed the plan to Land Registry, who updated their maps, and passed the update to Ordnance Survey. But I'm only guessing.

Whatever, LR had gifted a bit of land to my neighbour, who had erected a ramshackle shed on half his newly acquired patch, and built a chicken mesh fence around it, leaving the other half bare, unfenced, and no use to anybody. As it had been registered for the best part of 15 years, I was on a hiding to nothing, so I suggested that he might as well absorb the whole patch into his garden. Plot size was approx. 4.5m x 2m. He responded with alacrity.

In your case, LR have recorded a boundary which must have been provided by the developer. It would be interesting to see where/how OS acquired details of their topographical features.

I can appreciate that the thickness of a line on paper can be substantially larger on the ground, so boundaries will be vague. But the map you have provided, shows Point.B coinciding with an identifiable bend in your back fence. Surely that counts for something? I don't suppose that your neighbour is aquainted with .... Naw. That couldn't happen.

John W
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Re: New build house - boundary fence in incorrect position

Postby MacadamB53 » Wed Dec 02, 2015 9:19 pm

Hi John,

But the map you have provided, shows Point.B coinciding with an identifiable bend in your back fence.

that map is based on a design plan when no development was there at all and so you cannot say with any certainty where Point B is in the real world because you're assuming everything else was built to plan to perfection.

Kind regards, Mac
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Re: New build house - boundary fence in incorrect position

Postby jonahinoz » Thu Dec 03, 2015 6:54 am

<<< because you're assuming everything else was built to plan to perfection. >>>

Hi Mac,

Isn't that what this discussion is about?

The plan showed three straight fences all meeting at one point. It the real world, three straight fences should all meet at one point, although that meeting point may not be at the exact spot indicated by the map.

Surely a kink in a fence (topographical feature) ties WTC's fence to that kink, just as much as other topographical features ... the two houses ... tie the fence line to NOT inside the houses.

This discussion seems to suggest that buying off-plan is very "hit and miss". You contract to buy something that doesn't yet exist, and then have to accept what the developer produces. Sale of Goods Act? Not as described? Probably excludes property.

John W

John W
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