Who owns a newly erected fence?

Who owns a newly erected fence?

Postby treecol » Wed May 20, 2015 7:04 am

I'd always been told that by my solicitor, that once you erect a new fence on a customer's property, it becomes their property in law - even if they haven't paid anything towards the fence & will only be settling the bill once the job is completed. This obviously leaves things wide open for the householder to give some reason they aren't happy & withhold payment. The fencing contractor cannot remove said fence as it now belongs to householder - a good reason to ask for payment for materials in advance.
Any of you knowledgeable people know the law on this? Is what I've said correct?
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Re: Who owns a newly erected fence?

Postby MacadamB53 » Wed May 20, 2015 7:24 am

Hi treecol,

your solicitor is referring to the legal maxim "that which is fixed to the land becomes part of it" (Latin: "quicquid plantatur solo, solo cedit").

this is a tenet of English land law.

it means that, yes, once a fence has been constructed it becomes part of the land and therefore the property of the landowner.

not sure that necessarily means the person who constructed the fence cannot remove it, though, if eg the work was done to spec under contract and payment is being withheld.

Kind regards, Mac
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Re: Who owns a newly erected fence?

Postby mr sheen » Wed May 20, 2015 8:27 am

Arguing points of law is big business keeping thousands of lawyers in the manner to which they have become accustomed but it is founded on the principles of fairness and common sense and only gets to the complex arguments once in court.

The person commissioning a service/product has to pay for it otherwise you could buy a plot of land, commission builders to build a house and then claim you aren't paying since it already belongs to you...an absurd argument that wouldn't get past the basic principles of law. By commissioning works, you have entered into a contract to pay for that service and therefore you would be sued on the basis of contract law.

Arguments for ownership of a fence would be a civil dispute where the balance of probabilities applies and the person who paid for it is usually on a winner. If you try to counteract that evidence by claiming that the fence was put on your land it is unlikely that you would win since you cannot prove, with the same strength of physical proof, any ownership of the fence or the land since the boundary position can be disputed. Hence in a dispute where one has a paid receipt for the fence, that person owns the fence since there cannot be any greater proof of ownership that would tip the balance in their favour....unless they built it in the middle of your front garden in which case the court would've probably expected you to point out to the neighbour that if he doesn't remove it you will just to remove it and return it to him as its rightful owner.
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Re: Who owns a newly erected fence?

Postby Collaborate » Wed May 20, 2015 9:55 am

If you've not been paid I suggest you return to remove the fence. If they sue you for its return, you counter claim for the price of the job. They wouldn't dare. You could always take them to the small claims court for the loss of profit.
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Re: Who owns a newly erected fence?

Postby treecol » Wed May 20, 2015 7:32 pm

Thank you for helping out. I normally ask for payment for fencing materials when I actually deliver them to the customer. In this instance I was lax & didn't request payment & I suspected the customer may try to wriggle out of any payment at all as they were very critical of just about everything - yet when I asked them how they would like me to put it right, they couldn't say.
However the issue resolved itself today & they paid for everything they've had so far saying they are really happy. But I do appreciate your advice as I know how things stand for the future. Thank you.
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Re: Who owns a newly erected fence?

Postby Collaborate » Wed May 20, 2015 11:48 pm

In future, just make sure that a condition of the contract is that the fence remains your property until you are paid in full. You don't need to have standard T&Cs drawn up (though that would help) but so long as you have a record in writing of you having communicated that to them (e.g. in an email) you should have no problem lifting it up again if you're unpaid.
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Re: Who owns a newly erected fence?

Postby ukmicky » Sat May 23, 2015 11:11 pm

The maxim ''quicquid plantatur solo, solo cedit'' only applies on the conveyance of land.

You need a retention of title clause in a signed contract and it needs to be worded so as to allow you to enter onto the land to recover the goods. It needs to follow a few guide lines like timescales for payment or it may fall foul of the unfair terms and conditions Act .


Google 'retention of title clause' and you should find a few examples.


http://www.out-law.com/en/topics/commer ... e-clauses/
Last edited by ukmicky on Sat May 23, 2015 11:27 pm, edited 2 times in total.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Who owns a newly erected fence?

Postby MacadamB53 » Sat May 23, 2015 11:44 pm

Hi ukmicky,

The maxim ''quicquid plantatur solo, solo cedit'' only applies on the conveyance of land.

can you recommend a source on this?

Kind regards, Mac
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Re: Who owns a newly erected fence?

Postby ukmicky » Sun May 24, 2015 2:18 am

There lies the problem for anyone trying to use it under any other circumstance , its a common law rule so there is no act of parliament and written law defining under what situation the rule can be used.

The maxim actually came about centuries ago to stop fixtures being removed from land after the death of the owner by people tasked with looking after the land before it was transferred to the heirs .

Since then it has evolved through case law to cover situations when land has been sold so the vendor cant strip the land of its fixtures before its handed over .
Under foreclosure situations between mortgagor and a mortgagee to prevent the property destruction before the eviction.
When a property reverts back into the control of freeholder from a tenant.

Basically every single piece of case law has come from cases where land has transferred from one party to another and it purpose is to prevent destruction of land before the land is handed over to its new owner.

To be able to rely on a precedent your case needs to be very similar to the case that created the precedent your wish to rely on. No one has ever asked a court if the maxim can be used in any other circumstances other than on transference of land from one party to another so there is no case law to rely on and for it to cover any situation other than those which created the precedent a court would need to create a new precedent allowing it to be used under the new circumstance.


If it covered all situations any fixture a tenant placed on a property would automatically become the free holders property and you would never be able to remove or update the fixture. However currently under common law a fixture you place on the land after you take up the tenancy can be removed provided any damage caused on removal is rectified and the land is returned to its original state.
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