Building over a previously fenced boundary

Building over a previously fenced boundary

Postby echo » Tue May 31, 2016 11:24 pm

Hi Everyone,

I live in a mid-terrace that has the, presumably, fairly standard access path layout around my neighbours' garden (across the rear and part way back down the far side, leading on to their side path).

When the properties were built the access path was separated by a fence and gate from their garden. Prior to my purchase of the property they had removed the fence and gate, paved up and over where it was placed and also built a wooden structure completely over where the fence was at the rear. I had planned to re-fence the part that had only been paved over, and the neighbour was made aware (although it never specifically acknowledged), however, they now want to built a conservatory which will also be over where the fence used to be.

Although it was around what is now my land, I am unsure which property the fence/gate actually 'belonged' to.

So, my questions are...

1) Does this mid-terrace access path layout typically indicate that the fence/gate would 'belong' to the mid-terrace?
2) If the fence/gate 'belonged' to my neighbour, am I still entitled to re-fence/re-gate?
3) Can you lawfully build over a previously fenced boundary?
4) Is this type of boundary any different to the more usual garden/fence/garden boundaries?
5) How close can you build to a boundary - is the rule simply that as long as nothing over hangs someone else's land you can build as close as you like?
5) As the conservatory would be right up against my access path, for a couple of metres, could that be deemed as restricting my movement?

I have more questions, but let's just make a start with those!

Any help appreciated.
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Re: Building over a previously fenced boundary

Postby Collaborate » Wed Jun 01, 2016 6:31 am

Firstly, if what you have is a ROW over your neighbour's property in order for you to access your back garden, you cannot fence in that path. It is not yours to fence in. All you have a right to do is to ensure it is free of obstructions, and a right to remedy any defect in the surface that impedes your use.

As for the boundary between your garden and theirs, you need to look at the deeds, that might contain mention of who the boundary belongs to. Whoever it belongs to, there is nothing to stop you erecting a fence and gate that stands wholly on your side of the boundary, so you always have that to fall back on.
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Re: Building over a previously fenced boundary

Postby echo » Wed Jun 01, 2016 8:22 am

Collaborate wrote:Firstly, if what you have is a ROW over your neighbour's property in order for you to access your back garden, you cannot fence in that path. It is not yours to fence in. All you have a right to do is to ensure it is free of obstructions, and a right to remedy any defect in the surface that impedes your use..


Apologies if I was unclear, the access path around my neighbour's garden does belong to me, it is shown on my deeds and it was originally fenced. There is no mention on the deeds of who that boundary belongs to. I will later post an image to show the layout of the land.
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Re: Building over a previously fenced boundary

Postby echo » Wed Jun 01, 2016 9:31 am

I understand that I have to make 3 posts before I can attach an image, so please excuse this 'padding' post.

I will edit this post later to add an image.
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Re: Building over a previously fenced boundary

Postby echo » Wed Jun 01, 2016 11:37 am

Image

Hopefully this will make the layout clearer.

The purple arrows show the route from the rear garden of my property, onto my access path that runs across and down the side of the neighbouring garden - this access path is on my deeds and does belong to me.

The first plan shows the original layout when the properties were built - the dotted black line shows where there was a fence and gate between my access path and the neighbour's garden.
The second plan shows the current layout where the neighbour has removed the fence and paved up and over where it was. A wood playhouse structure was also built at the rear of their garden, again over where the fence was.
The third plan shows where the proposed conservatory will go.

If the conservatory is built out from rear following the line of the house, it will partly cover where the original fence was and make it difficult to re-fence/gate.

You will note that building this conservatory would mean that the neighbour would have to use my access path to get to their back garden - although I would obviously dispute that they have any right to.

Hopefully that makes things clearer, I would appreciate any answers or advice.
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Re: Building over a previously fenced boundary

Postby cleo5 » Wed Jun 01, 2016 7:35 pm

Erect a 5 ft fence and a gate quickly. Any sort- . You have already lost a few inches of land where the fence has been removed and paving has been laid where a fence once was.
Are there any measurements of original path on your deeds?
To save any more of your path being taken put your post in as close to the paving as possible.

If challenged you can say that it is your land and you are fencing it off as per original deeds.

Contact a fencer who is not afraid of confrontation and who can do the job straight away.. If cost is holding you back think how it will be once the conservatory goes up and possibly guttering overhanging your path.
And where is he going to put the foundation or wall for this conservatory? On a bit of your path no doubt.

It is your land, your path and on your deeds.
People will encroach all they want unless stopped.
I don't think the few inches he has already taken are worth the hassle. Health and peace of mind come first.
No need for any disagreement with neighbour but just get on and fence it.

Do it yourself if need be and age/ time/ health permit and get any friends/relations to help.

Why will fence and gate be awkward to do if he builds his conservatory?
If your fence and gate are already in place he will have to adapt his plan a little.

Mind you you could always chip off a bit of his slabs where you want to put your fence posts! But you might crack them and it's not worth the aggro.
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Re: Building over a previously fenced boundary

Postby span » Wed Jun 01, 2016 7:55 pm

echo wrote:The purple arrows show the route from the rear garden of my property, onto my access path that runs across and down the side of the neighbouring garden - this access path is on my deeds and does belong to me.


Just to clarify - do you know the difference in law between owning the land and owning a right of way over the land? Just checking, like. Your statement may conceal a pretty important assumption.
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Re: Building over a previously fenced boundary

Postby echo » Wed Jun 01, 2016 8:15 pm

Thank you for the replies.

Am I to assume then that if/when the council considers the proposal, they won't care about the removal of fence and paving over?

cleo5 wrote:Are there any measurements of original path on your deeds?


Unfortunately not.

cleo5 wrote:Mind you you could always chip off a bit of his slabs where you want to put your fence posts! But you might crack them and it's not worth the aggro.


Luckily, the paving where the fence was, for the first couple of metres, is very loose and can be taken up quite easily, so I could re-fence it partially at least. It'd look a bit odd though!

span wrote:
echo wrote:The purple arrows show the route from the rear garden of my property, onto my access path that runs across and down the side of the neighbouring garden - this access path is on my deeds and does belong to me.


Just to clarify - do you know the difference in law between owning the land and owning a right of way over the land? Just checking, like. Your statement may conceal a pretty important assumption.


Yes, the purple arrows are definitely my land, as shown on my deeds. I also have a ROW over their side path that it leads on to, and out to the front of the properties.
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Re: Building over a previously fenced boundary

Postby span » Wed Jun 01, 2016 9:12 pm

echo wrote:
span wrote:
echo wrote:The purple arrows show the route from the rear garden of my property, onto my access path that runs across and down the side of the neighbouring garden - this access path is on my deeds and does belong to me.


Just to clarify - do you know the difference in law between owning the land and owning a right of way over the land? Just checking, like. Your statement may conceal a pretty important assumption.


Yes, the purple arrows are definitely my land, as shown on my deeds. I also have a ROW over their side path that it leads on to, and out to the front of the properties.


Well alrighty then. Would you post up the wording in your deeds about your ROW over their land? Just for completeness and because there's often a devil hiding in the detail.

Otherwise, just fence off your land. Your land, your decision.

What has your neighbor said about all this when you talked about it?
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Re: Building over a previously fenced boundary

Postby echo » Wed Jun 01, 2016 9:55 pm

span wrote:Well alrighty then. Would you post up the wording in your deeds about your ROW over their land? Just for completeness and because there's often a devil hiding in the detail.

Otherwise, just fence off your land. Your land, your decision.

What has your neighbor said about all this when you talked about it?


Can't remember the exact wording, it wasn't particularly extensive, but my Solicitor was pretty confident that any court would interpret it as a legal right of way. And importantly, my neighbour's Solicitor has acknowledged that I have legal rights.

There is a bit of history here, and this rear conservatory is essentially 'Plan B' for them as they initially intended to extend out the front/side, which would have completely blocked me gaining access to my path and therefore the rear of my property. Many months and several Solicitor letters later, they finally seem to have accepted that they can't do that.

I don't actually object in principle to them having a conservatory, so long as it doesn't impact me in any way, but I just don't trust them because a conservatory is not really adequate 'living accommodation', which is what really want/need to build.

I think I will have to get a fence put in, at least in part, before they can start to build - I'm just not sure where exactly it was placed originally.

We haven't really talked that much, and I don't think it would help. They were informed previously that I intended to re-fence the path, and they made no acknowledgement or objection to that.
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Re: Building over a previously fenced boundary

Postby COGGY » Wed Jun 01, 2016 10:12 pm

Hi

I am rather confused by your statement

Can't remember the exact wording, it wasn't particularly extensive, but my Solicitor was pretty confident that any court would interpret it as a legal right of way. And importantly, my neighbour's Solicitor has acknowledged that I have legal rights.


Either it is a right of way or it is not a right of way. Why did your solicitor consider what a court would interpret? How long have you owned the property? Did your solicitor provide you with a copy of the Conveyance/Transfer to you? Have you checked this for the wording? Coggy
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Re: Building over a previously fenced boundary

Postby echo » Wed Jun 01, 2016 10:39 pm

COGGY wrote:I am rather confused by your statement

Either it is a right of way or it is not a right of way. Why did your solicitor consider what a court would interpret?


The wording did not explicitly state 'X path is a right of way', however, it did state 'the property is granted a right of way over any driveway or footpath that serves, but does not form part of, the property'. I was also advised that the existence and location of my path around their garden demonstrated that there was clearly an intended right of way.
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Re: Building over a previously fenced boundary

Postby span » Wed Jun 01, 2016 10:47 pm

echo wrote:I think I will have to get a fence put in, at least in part, before they can start to build - I'm just not sure where exactly it was placed originally.


don't get too hung up on where exactly it was before - you're entitled to place it anywhere you like on your own land, and ideally at the furthest limits of your land to demark the extent of your land. Just don't put it on their land.

echo wrote:We haven't really talked that much, and I don't think it would help. They were informed previously that I intended to re-fence the path, and they made no acknowledgement or objection to that.


Talking is good. You've nothing to lose at this point, and possibly good intel to gain. If you tell them you're about to fence off your land, and would they care to visit the site with you so you both can see where exactly the fence will be going up - that could be an informative discussion.
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Re: Building over a previously fenced boundary

Postby echo » Wed Jun 01, 2016 10:56 pm

span wrote:don't get too hung up on where exactly it was before - you're entitled to place it anywhere you like on your own land, and ideally at the furthest limits of your land to demark the extent of your land. Just don't put it on their land.


That's the problem though, as the boundary has now been blurred I'm not exactly sure where my land stops. The paving slabs over it are the standard square-foot sized, so I don't know if the fence was at the near edge or the far edge - I suspect it was somewhere in the middle. I'm hopefully going to contact the previous owner to see if they can help.

span wrote:Talking is good. You've nothing to lose at this point, and possibly good intel to gain. If you tell them you're about to fence off your land, and would they care to visit the site with you so you both can see where exactly the fence will be going up - that could be an informative discussion.


I will be courteous, and I will tell them before I do it. I just need to decide when that is in relation to when I leave my comments online on the planning consultation.
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Re: Building over a previously fenced boundary

Postby jonahinoz » Thu Jun 02, 2016 9:09 am

Hi,

Do you have copies of the Land Register, for both your property, and your neighbour's. He probably has copies of yours.

Your register will have a map with a red line around your house and garden. Your neighbour's register will have a red line around his house and garden. Which of the two maps includes the path that you believe is yours? I can't be both, so it must be one or the other ... or neither.

If it is yours, you cannot have a ROW over it ... it is, well ... er ... YOURS. You can fence it up to the boundary, or not fence it if you don't want to. Deciding on the location of the boundary should be by discussion with your neighbour, as legal arguments over boundaries can cost many tens of thousands of pounds. Do not be bloody minded over a few inches.

If the path belongs to your neighbour, it seems you do have a ROW over it. (I wonder if the ROW was originally across the back of your neighbours house, and there was a mutual agreement to move it to the back boundary. What do other similar houses have? Unless the change was documented, you might have the existing ROW, which will block your neighbour's plans, PLUS a prescriptive easement to use the existing path. :roll: That could get interesting). Your neighbour can fence the path if he wishes, provided he leaves it wide enough. Or he can leave it as part of his garden, and you free to wander.

If neither of you own the path, your neighbour has no rights, but can fence it from his garden, or not. You cannot fence it, but should have prescriptive rights of access. You should try to trace the history of the respective properties.

Where are the drains, and which way do they flow?

John W
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