Am I obliged to pay for the repair of a fence.

Re: Am I obliged to pay for the repair of a fence.

Postby MacadamB53 » Wed Jul 16, 2014 2:42 pm

haspden wrote:Hi there

Just been on to the advisers listed by RICS and was told by two separate surveyors that in boundary disputes he who paid for the fence owns it. I should offer to pay if I cause any damage to it but it is down to them to fix.

haspden

Hi haspden,

can you tell us what question(s) you asked and what replies you got - you mention they referred to "boundary disputes"

Kind regards, Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 

Re: Am I obliged to pay for the repair of a fence.

Postby MacadamB53 » Wed Jul 16, 2014 2:45 pm

Hi Realaledrinker,

Though our deeds say the neighbours are responsible for the boundary feature....so i think original question is valid , who owns the panel i put in ?

that is not what you were asking at all.

if you replace a panel in a fence stood on your neighbour's land then you've gifted him a panel.

your neighbour's fence doesn't straddle the boundary.

Kind regards, Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Re: Am I obliged to pay for the repair of a fence.

Postby Realaledrinker » Wed Jul 16, 2014 2:54 pm

Thanks Mac
Realaledrinker
 
Posts: 54
Joined: Wed Jul 02, 2014 1:19 pm

Re: Am I obliged to pay for the repair of a fence.

Postby haspden » Wed Jul 16, 2014 5:49 pm

MacadamB53 wrote:
haspden wrote:Hi there

Just been on to the advisers listed by RICS and was told by two separate surveyors that in boundary disputes he who paid for the fence owns it. I should offer to pay if I cause any damage to it but it is down to them to fix.

haspden

Hi haspden,

can you tell us what question(s) you asked and what replies you got - you mention they referred to "boundary disputes"

Kind regards, Mac


Hi again

Sorry it was fence dispute not boundary dispute. Like people have already mentioned he said that a boundary is an invisible line etc. However he was adamant that he who bought the fence owns it, unless it was gifted to me and if it was on my land (which it isn't) it is still his no matter where it is.

Howard
haspden
 
Posts: 16
Joined: Tue Jul 08, 2014 2:03 pm

Re: Am I obliged to pay for the repair of a fence.

Postby MacadamB53 » Wed Jul 16, 2014 7:43 pm

Hi Howard,

did the RICS adviser confirm that if A erects a fence on B's land it belongs to A whilst it is attached to B's land? (rather than the materials should be returned to A if B detaches it)

Kind regards, Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Re: Am I obliged to pay for the repair of a fence.

Postby haspden » Wed Jul 16, 2014 7:50 pm

MacadamB53 wrote:Hi Howard,

did the RICS adviser confirm that if A erects a fence on B's land it belongs to A whilst it is attached to B's land? (rather than the materials should be returned to A if B detaches it)

Kind regards, Mac


Something like that. If A erects fence on B's land A's an idiot! B has the right to take it down but must give it back as it belongs to A. B might not bother and leave it there but it belongs to A. Just because you plunge a hole in the ground it doesn't mean you have given someone something.

Howard
haspden
 
Posts: 16
Joined: Tue Jul 08, 2014 2:03 pm

Re: Am I obliged to pay for the repair of a fence.

Postby MacadamB53 » Wed Jul 16, 2014 8:20 pm

haspden wrote:
MacadamB53 wrote:Hi Howard,

did the RICS adviser confirm that if A erects a fence on B's land it belongs to A whilst it is attached to B's land? (rather than the materials should be returned to A if B detaches it)

Kind regards, Mac


Something like that. If A erects fence on B's land A's an idiot! B has the right to take it down but must give it back as it belongs to A. B might not bother and leave it there but it belongs to A. Just because you plunge a hole in the ground it doesn't mean you have given someone something.

Howard

Hi Howard,

not quite - because whilst ever it is in B's land (or attached to something in B's land) it is considered part of the land - known as a "fixture" in law.
houses are fixtures.
so the fence would be part of B's property until it is detached and A would have NO legal rights over it - can't treat it, paint it, attach things, grow plants up it, stack/pile/lean things against it, etc, and certainly not remove it without permission from B.

in all probability A wouldn't want the materials back +15 years later...

Kind regards, Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Re: Am I obliged to pay for the repair of a fence.

Postby ukmicky » Wed Jul 16, 2014 9:30 pm

IRealaledrinker

In answer to your question. If its a shared boundary feature and it is replaced so it remains sitting astride the boundary it will remain in joint ownership no matter who paid for it.
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4544
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Am I obliged to pay for the repair of a fence.

Postby ukmicky » Wed Jul 16, 2014 10:47 pm

MacadamB53 wrote:
haspden wrote:
MacadamB53 wrote:Hi Howard,

did the RICS adviser confirm that if A erects a fence on B's land it belongs to A whilst it is attached to B's land? (rather than the materials should be returned to A if B detaches it)

Kind regards, Mac


Something like that. If A erects fence on B's land A's an idiot! B has the right to take it down but must give it back as it belongs to A. B might not bother and leave it there but it belongs to A. Just because you plunge a hole in the ground it doesn't mean you have given someone something.

Howard

Hi Howard,

not quite - because whilst ever it is in B's land (or attached to something in B's land) it is considered part of the land - known as a "fixture" in law.
houses are fixtures.
so the fence would be part of B's property until it is detached and A would have NO legal rights over it - can't treat it, paint it, attach things, grow plants up it, stack/pile/lean things against it, etc, and certainly not remove it without permission from B.

in all probability A wouldn't want the materials back +15 years later...

Kind regards, Mac

I shouldnt do this because life is to busy at the moment to get into a discusion over it.

quicquid plantatuer solo cedit - Whats attached to the land belongs to the land . (i may have spelt the latin part wrong ) However lets add some confusion to the subject to show it is far from as simple as its attached to my land so its my property when there is no landlord and tenant , mortgagor and mortgage company.


Many people read those words and think it covers all situations but as with everything legal you cant just read the words and expect them to cover all situations because the courts have to decide first what is meant by the wording and what situations any legal doctrine can be used . It came specifically to prevent property from being pulled apart and destroyed by heirs battling over the property and has evoled through the courts to cover situtions like that with landlord and tenant , mortgagor and mortgage companys. It hasnt as of yet evolved to cover every situation out there .

Most of the modern case law that survives (actually it could be all of it) on chattels and fixtures has come about due to cases to do with the transfer of land and not in a situation when someone fixes his fence to a neighbours land. Can we automatically use the judgements of these cases to decide on what is a fixture or chattel in a situation where a neighbour places his fence on his neighbours land ,Absolutly not.

No court as far as i am aware has never ruled on the chattel or fixture situation like this and until a court does its a case of it may or may not cover a situation like this .

If it were brougfht before a court i feel it would be classed as a chattel under the 2 tests because to be a fixture you would need to show it was installed with the intention to annex to the neighbours land and it was installed principally to benifit the neighbours land .

A few situations that also dont fit in with the doctrine follow

if the owner of my house placed a fence on my boundary 10 years ago and it just came to my attention that it was placed 3 foot into my neighbours property . The law allows me to claim adverse possesion of my neighbours land even if he objects, if i can show for the last 10 years i had the mistaken belief the land was mine . How if i win do i get the 3 foot of land which includes the fence and the land directly underneath the fence if it being attached to my neighbours land and due to quicquid plantatuer solo cedit its my neighbours fence and i havent owned it from the moment i erected it on my neighbours land.

Also easements can not only be aquired allowing me to walk over someones land or overhang their land they have also been gained allowing someone to keep fixture like oil tanks attached to someones land , im sure we can all think of other examples. How is it possible to gain an easement if it being attached to the land means its owned by the land and wasnt mine the moment i affixed it my neighbours land.
Last edited by ukmicky on Wed Jul 16, 2014 11:07 pm, edited 2 times in total.
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4544
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Am I obliged to pay for the repair of a fence.

Postby haspden » Wed Jul 16, 2014 11:01 pm

ukmicky wrote:IRealaledrinker

In answer to your question. If its a shared boundary feature and it is replaced so it remains sitting astride the boundary it will remain in joint ownership no matter who paid for it.


Hi there and thanks for the great advice. One question…what if one party objected to the replacement of the shared boundary feature because of the change in size of the new feature and the other party went ahead anyway?

Nothing was agreed in writing or verbally.

haspden
haspden
 
Posts: 16
Joined: Tue Jul 08, 2014 2:03 pm

Re: Am I obliged to pay for the repair of a fence.

Postby MacadamB53 » Wed Jul 16, 2014 11:09 pm

haspden wrote:
ukmicky wrote:IRealaledrinker

In answer to your question. If its a shared boundary feature and it is replaced so it remains sitting astride the boundary it will remain in joint ownership no matter who paid for it.


Hi there and thanks for the great advice. One question…what if one party objected to the replacement of the shared boundary feature because of the change in size of the new feature and the other party went ahead anyway?

Nothing was agreed in writing or verbally.

haspden

Hi haspden,

make your mind up - I thought the fence your talking about isn't shared?

Kind regards, Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Re: Am I obliged to pay for the repair of a fence.

Postby ukmicky » Wed Jul 16, 2014 11:24 pm

Firstly no matter what ,if it is sitting astride the boundary and replaced a fenced sitting astride the boundary it will under all circumstances remain shared. I cant think of a situation where that would not be the case without going into weird scinarios . What do the property deeds say.

I dont have the case name any longer but there was a case that i read a kong time ago that said the joint owner of the shared fence had the right to increase its height to the legal maximum , which is normally 2 meters .

Which means basically if you objected to it because it is heigher than you like there is not much you can do unless its over 2 meters or you have the benifit of a covenant preventing a fence a fence of that height . Or

if the fence is to short for your likeing providing you are 100 percent sure its sitting astride the bouindary and therefore shared you can attach on your side to raise it to the maximum legal height of 2 meters provided no planning laws or covenants restrict its height
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4544
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Am I obliged to pay for the repair of a fence.

Postby MacadamB53 » Thu Jul 17, 2014 7:43 am

Hi all,

here's a link to the OP's other thread:

http://www.gardenlaw.co.uk/phpBB2/viewtopic.php?f=4&t=19486

Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Re: Am I obliged to pay for the repair of a fence.

Postby haspden » Thu Jul 17, 2014 11:44 am

ukmicky wrote:Firstly no matter what ,if it is sitting astride the boundary and replaced a fenced sitting astride the boundary it will under all circumstances remain shared. I cant think of a situation where that would not be the case without going into weird scinarios . What do the property deeds say.

I dont have the case name any longer but there was a case that i read a kong time ago that said the joint owner of the shared fence had the right to increase its height to the legal maximum , which is normally 2 meters .

Which means basically if you objected to it because it is heigher than you like there is not much you can do unless its over 2 meters or you have the benifit of a covenant preventing a fence a fence of that height . Or

if the fence is to short for your likeing providing you are 100 percent sure its sitting astride the bouindary and therefore shared you can attach on your side to raise it to the maximum legal height of 2 meters provided no planning laws or covenants restrict its height


And by that logic I could lower it later in the week??
haspden
 
Posts: 16
Joined: Tue Jul 08, 2014 2:03 pm

Re: Am I obliged to pay for the repair of a fence.

Postby MacadamB53 » Thu Jul 17, 2014 11:54 am

haspden wrote:
ukmicky wrote:Firstly no matter what ,if it is sitting astride the boundary and replaced a fenced sitting astride the boundary it will under all circumstances remain shared. I cant think of a situation where that would not be the case without going into weird scinarios . What do the property deeds say.

I dont have the case name any longer but there was a case that i read a kong time ago that said the joint owner of the shared fence had the right to increase its height to the legal maximum , which is normally 2 meters .

Which means basically if you objected to it because it is heigher than you like there is not much you can do unless its over 2 meters or you have the benifit of a covenant preventing a fence a fence of that height . Or

if the fence is to short for your likeing providing you are 100 percent sure its sitting astride the bouindary and therefore shared you can attach on your side to raise it to the maximum legal height of 2 meters provided no planning laws or covenants restrict its height


And by that logic I could lower it later in the week??

Hi haspden,

you cannot pick and choose whether it is shared to suit you.

does any of the fence stand on your land? (you mention differing levels between the gardens so it should be pretty obvious)

Kind regards, Mac
MacadamB53
 
Posts: 6030
Joined: Mon Dec 10, 2012 12:13 am

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 
PreviousNext

Return to Fences

Who is online

Users browsing this forum: No registered users and 4 guests