Moving the Position of Rear Garden Fence

Moving the Position of Rear Garden Fence

Postby kevkdg » Tue Apr 12, 2005 1:26 pm

Hi,

My garden backs onto a footpath used communally by residents of flats which are owned by a housing association (on a leasehold basis from the council).

My fence at the foot of my garden is presently at a steep angle and not at 90 degrees to my side fences. I have checked my title deeds and title plan, and written to the Land Registry who have confirmed that there is land beyond my rear fence which belongs to my title. To correctly re-position the fence I would need to move it out at about 7 feet on one side and 2 feet on the other, this would also square it up nicely with both my side fences. The bulk of this triangular area beyond my fence is a mound of earth with a tree, however, some of my land does fall onto the footpath belonging to the flats which is made up of paving slabs (albeit only a foot or two - It is a wide footpath).

Until recently, (about two years ago when I replaced it with a fence panel), there was a gate at the bottom of my garden allowing access to this area, also, I could and still can simply walk around and down the flats footpath to gain access to this area. There are no gates etc preventing me from doing so.

What I would like to know is whether or not when I re-position my fence the housing association can attempt to claim possessory title by adverse possession, and if so are they likely to succeed?

I have written to them out of politeness letting them know that I intend to reposition my fence to follow my title boundary, and asking them to inform their resident caretaker so as to avoid any confrontation. In the letter I made no mention of re-claiming land, and was sure to mention the fact that I had access to this land via the gate etc. I sent it out of courtesy to a lady who I have previously contacted there, offering to meet with them to discuss my plans and show them any title plans ect should they be interested.

In my title deeds there is the following restrictive covenent:

"4. TO properly maintain the timber fences erected by the Vendor which
separate the open areas from the private domestic areas and the rear
garden from the road abutting thereon and not in any way to alter pull
down or deface the type of fence erected or erect any fence in
substitution or addition without the written consent of the Vendor first
had and obtained"

Where the vendor is the original building/developer company from 1976 who no longer exist. Can anyone tell me whether this affects my plans for my fence, whether it is enforceable, and if so who might be able to enforce it other than the original vendors?

I moved into the house in 2001, and the fence was in its present position, although I have replaced all the panels, and the old gate with a panel about two years ago. Looking at the original Title Plan before the Land Reg updated it for me onto a new Ordnance Survey Map, the position of the fence in 1976 is similar to its present incorrect position. But it may have been moved many times over the years, who knows!?

Any help/advice would be appreciated.

I look forward to your replies.

Cheers
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Postby Angelisle » Tue Apr 12, 2005 3:05 pm

Kevkdg,
Where the vendor is the original building/developer company from 1976 who no longer exist. Can anyone tell me whether this affects my plans for my fence, whether it is enforceable, and if so who might be able to enforce it other than the original vendors?


A covenant is enforceable only for as long as the two parties to it can be identified and as long as one of those parties wishes it to remain in force.
However, if the covenant was put into the original conveyance because it was a matter of local planning policy, and you enclose the extra area with new fencing, then the local council planning department may object. This area could have been left open plan as an access strip for utilities such as cables and drains. It seems that you are doing the right thing by keeping them up to date with your plans.
I hope this helps.
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Postby kevkdg » Tue Apr 12, 2005 3:21 pm

Cheers, no mention in my deeds about local planning laws for fences. I'm not sure if it counts, but over the years all my neighbours have straightened out their rear fences along the side of this path, so maybe a precedent has been set? Not sure why all the fences zig-zagged in the first place, especially as the title deeds shows the boundaries as a straight line along the edge of the path.

I'm more worried about whether the housing association will attempt to gain title to the land by adverse possession. Even though it is my fence that is not along the boundary as indicated on the title deeds, and they themselves haven't fenced it in, and I can easily get access to the area beyond my fence anyway.

I do wonder what the position might be should I wish to remove some paving stones along the side of the flats path that crosses over into my title (path changes direction slightly at back of my garden!). The path has been down a long time. Might have to compromise, and say only move my fence as much as to incorporate the mound of earth and tree and forego possibly approx two feet of garden space as this would involve lifting some of their pathway? Any ideas
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Postby Angelisle » Tue Apr 12, 2005 5:16 pm

Kevkdg,
no mention in my deeds about local planning laws for fences

IMHO, These regulations would be included within the original builders specifications and plans of the entire proposed estate. As such your deeds only need to contain a breakdown as required of any general or restrictive covenants.
I'm not sure if it counts, but over the years all my neighbours have straightened out their rear fences along the side of this path, so maybe a precedent has been set? Not sure why all the fences zig-zagged in the first place, especially as the title deeds shows the boundaries as a straight line along the edge of the path.

Boundaries and plans are notorious for sometimes appearing wrong and out of kilter check out www.boundary-problems.co.uk I may be wrong but I think in order for a precedent to exist a court first has to sanction it. I previously stated this space may have been left open to facilitate access to utilities, which if left open the said utilities would not have to keep asking for access to each resident inturn and have to pay compensation for damage to plants etc should the ground have to be lifted.
Just my thoughts, perhaps some other member will have a clearer view for you.
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Postby nigelrb » Tue Apr 12, 2005 11:01 pm

Hi Kev,
My interpretation from your posting is that you are quite entitled to restore your fences to their proper position as identified on your deeds.
With respect to 'precedent', Angelisle is quite correct in stating that can only come as a decision of a Court, most generally an 'appeal' or High Court. The fact that someone or something is wrong for a dozen years doesn't necessarily make it right. Of course there are exceptions to this - one being the 'adverse possession' you alluded to.

You have proceeded quite fairly and correctly in advising adjoining owners; just be certain your new location is absolutely correct (as no doubt you would). You would also be wise to check if any reference to fence ownership is made in your deeds or those of the adjoining owner. I note from the provisions of the 'restrictive covenent' you have published that you are charged with the responsibility to, 'maintain the timber fences,' etc., however, you make no reference to ownership.
Regards, Nigel
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Postby kevkdg » Wed Apr 13, 2005 10:15 am

Hi, Nigel and Angelisle, thanks for your replies, very helpful.

Regarding ownership of rear fence, according to solicitors title report when I bought my house it belongs to me. Also, it sits well within my boundary, and myself and the previous owners have maintained it.

Most of the area beyond my fence is a small mound of earth with a large tree, so no access problems here, although if I was to move the fence out to just within my legal boundary I would need to remove some paving slabs along the edge of the flats pathway, which has more than likely been in place for many years. The pathway does provide vehicular access, but only for occupants moving in or out of flats (Transit Vans etc) and for maintenance vehicles, other than that it is mainly used as a footpath. The access gate for vehicles is opposite the bottom of my fence, but by the presence of the tree, and the fact that the path is wide anyway, the earth mound provides no access and can't even be used as turning space (wouldn't need to be either). My deeds mention no rights of way. The only reason I can think of that mine and my neighbours fences did at one time all zig-zag along the edge of the flats pathway was so that the triangular pockets of earth beyond each neighbours fence could be used as flowerbeds or the like. Over the years all my neighbours have straightened out their fences.

What I would like to know is whether I am within my rights to remove the encroaching paving slabs along the side of the path, or whether I should compromise and move my fence to the edge of the earth mound and leave the path alone, however, that way I will still be two feet within my boundary! I will of course politelty liase with the housing association that own the flats at all stages and see how they react. Does the restrictive covenance require me to obtain written permission before I move the fence? Open to interpretation I guess.

Cheers
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Postby nigelrb » Wed Apr 13, 2005 11:06 am

Hi Kev. Perhaps the best strategy at this time is to await a response from the housing association to whom you wrote. Their reply may well determine your next move, which obviously hinges upon the removal/relocation of the paving slabs in question. That, I believe may well require legal opinion due to the time the area has been used by others as 'public space/access.

The layman's view, of course, is to take what is mine, move the bloody slabs and put the fence where it rightfully belongs! Unfortunately our laws seem to not favour those 'in the right!'
Regards, Nigel
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Postby kevkdg » Wed Apr 13, 2005 11:33 am

Cheers Nigel,

My letter didn't go as far as mentioning the removal of paving slabs, it concentrated more on the area of earth, as I can't imagine them being that bothered about that, let alone wanting to go down the legal route of claiming adverse possession for a mound of earth etc.

In my letter I have asked to meet with their housing officer to discuss my plans, point out the area in question, and go over my title plan and letter from the Land Registry should they wish. I thought the meeting, should it transpire will be a good point to demonstrate how the paving stones encroach upon on my land and see what they think. I would even be willing to make the edge of their path good by getting a contractor in to cut the paving stones so they butt up nicely against my border. But I guess it is all about a little compromise, as the path has probably been down for many years, and I don't want to start a legal battle over one to two feet of land. as long as they don't object to me moving my fence to incorporate the mound of earth I might be happy to leave my fence still inside my boundary. I guess I will guage from their response how they feel about it.

I'm not sure if they could claim adverse possession anyway, as firstly they have not fenced in this area of land themselves, secondly I and previous owners have had access to it by a gate at the bottom of my garden, or by walking around and down the flats pathway, so they have not excluded the rightful owner. I guess the ownus would be on them to prove they've had it exclusively for 12 years or more!
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Postby nigelrb » Wed Apr 13, 2005 10:42 pm

Ok. I guess all will hinge on the content of the (expected) response!
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