New fence erected whilst I was away on Holiday!

New fence erected whilst I was away on Holiday!

Postby GreenThumbNot » Fri Sep 18, 2015 11:25 am

Hi all,

It's my first post on this very informative forum, I could do with some advice as I've been reading up on garden law & it doesn't always seem straightforward.

Please bear with me as I'm trying to understand the implications of my situation.

To my surprise, I returned from holiday to find my neighbour had erected a new fence on the boundary line, not on their side as previously agreed.

As we understood from both our deeds, the T's face me so this fence is my responsibility to erect & maintain.

Q1. Is my understanding of the deeds correct?
Q2. Should I have a say in the design of the fence if it is indeed my responsibility & placed on the boundary line?
Q3. Who owns this fence as I didn't erect it?
Q4. Who's responsibility is it to maintain now?
Q5. Is there any implications for when I sell the house?

Out of courtesy I discussed with my neighbour almost a couple of years ago that I wanted to plant a willow hedge as I wanted a softer greener view than a wooden fence. They wanted a 3 foot white picket fence instead, so to be neighbourly, I agreed to their request to plant the willow on my side of the boundary & they agreed to erect their picket fence on their side leaving a small gap so as to not affect the roots of the willow. I have from the start offered & always maintained the hedge, in fact they have helped me reweave in the new shoots that strayed to their side back to mine.

In the process of erecting a 5 foot overlapping close board fence they have trimmed the entire side & over 100 rods from the top of my hedge. They have not trimmed back to the boundary but back to the main rods of the hedge across on my side.

Additionally a section is now turning yellow & I suspect is dying where they have dug out & snapped one of my willows to place a post & left it dangling out of the ground.

As this willow is still establishing I needed the new growth to finish weaving the top of the hedge & planned to use the rods they prematurely cut to plant another hedge & a teepee for my daughter.

When I asked for the cuttings back, they only admitted to cutting a hand few not the entire side or top, of which they had already disposed.

Q6. What is my position regarding the damage & loss of rods from my hedge?

Q7. Is there anything else I should be aware, as I'm still trying to understand where I stand?

Thanks in advance.
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Re: New fence erected whilst I was away on Holiday!

Postby Collaborate » Fri Sep 18, 2015 12:24 pm

1. The Ts in themselves mean nothing. The deeds may explicitly state the ownership of those fences marked in a certain way, but if they are silent, it is meaningless. You only have a responsibility (subject to what I mention below) to maintain the fence if the deeds explicitly say you do. This kind of clause is known as a positive covenant (that compels you to do something), as opposed to a restrictive covenant (which restricts what you can do).

Unless you are the first person to own that plot of land after the deed was created then the positive covenant is unenforceable against you other than your neighbour suing the original party to the deed for damages and there then being an unbreakable chain of indemnities between the original owner and you.

2. If it is on the boundary line it can only be placed there with your agreement.

3. I suspect your neighbour owns it. You could always ask them whether they erected it as a gift to you, and it is now yours, whether it is jointly owned, or whether they retain ownership. If the latter, and it has strayed on to your land, you can ask them to move it back but this would likely be only a few centimetres.

4. See my answer at 1 above.

5. Not really, although if it becomes a boundary dispute you'd have to declare it.

6. They can always cut back anything that grows on their side of the boundary, but must offer you back the cuttings. They are not entitled to cut back beyond the boundary line. In theory you could claim damages from them. They are entitled to cut in to the earth on their side of the boundary, even if your hedge is taking root there.

7. You should be aware that if you ask them to move the fence back, they can get away with moving it to the boundary line. In a fence that has 4 inch posts that means moving it back by 2 inches. Damages to your hedge are likely to be very small. If you take it to court you'd get bollocked by the judge. Judges would not be impressed with a case being brought to move a hedge back 2 inches and get compensation for a few strands of hedge being cut.
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Re: New fence erected whilst I was away on Holiday!

Postby mr sheen » Fri Sep 18, 2015 12:28 pm

It's very nice if both sides can come to agreements about boundary features but this is often difficult since both want different things, as in your case. You wanted a willow hedge and got it....he wanted a fence but didn't get it and when your home is your castle you want it as you want it and not as your neighbour wants it.

Both neighbours have the right to erect the boundary feature that they want, so he had the right to erect a fence as his boundary feature, irrespective of T marks on the deeds.
There is no responsibility to ensure that the neighbour likes a boundary feature.
The fence is his property and he has to maintain it.
Willow is a growing boundary feature that grows in all directions including into the land or airspace not owned by the person planting it if it is planted on or near a boundary. He has the right to cut back the willow right up to the boundary without giving notice. He does not have to accept the encroachment from your boundary feature. He should not cut it back beyond the boundary but identifying where the boundary actually is can be difficult and disputed, so there is little you can do about him having cut it back. Also willow is fast growing and will continue to grow and encroach on his land so he may be using the fence to prevent this or make it clear where the limit of the willow can grow is. If your willow damages his fence, you will be liable to repair it.
Unless you can prove in a court exactly where the boundary is, that he cut your hedge beyond it in a negligent manner and that as a direct result you have suffered actual financial losses....which will be difficult and may be costly, it's best to just accept that he has cut back your hedge in order to erect his fence and that the hedge will continue to grow.
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Re: New fence erected whilst I was away on Holiday!

Postby MacadamB53 » Fri Sep 18, 2015 1:15 pm

Hi GreenThumbNot,

here are my answers:

A1 you have not divulged an interpretation of your deeds - you've mentioned there being some symbols on a plan (which mean nothing if not referenced in your deeds...)

A2 yes - if by "on the boundary" you mean it stands partly on your property - (not sure how you're going to prove that, given you've planted a hedge to define the extent of your property...)

A3 unless I've misunderstood the layout I'd say the fence stands on your neigbbour's property - so it belongs to your neighbour

A4 nobody has to maintain it

A5 you need to inform prospective purchasers of what they're buying - and that means being clear about which boundary features stand on your property and which don't (this would be the same anyway regardless of what has happened...)

A6 ask them for some compensation or else take them to court (the latter would be considered petty...)

A7 your neighbour might pursue you when your maturing hedge inevitably damages his fence

Kind regards, Mac
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Re: New fence erected whilst I was away on Holiday!

Postby arborlad » Sat Sep 19, 2015 11:20 am

GreenThumbNot wrote:To my surprise, I returned from holiday to find my neighbour had erected a new fence on the boundary line, not on their side as previously agreed..



Abut or astride are more accurate terms to use in these circumstances.

How old are your properties and what was there as a boundary feature before any changes were made.

Ownership and responsibility are usually one and the same in this context, with the Ts reflected on both title plans and both you and the neighbour are in agreement on this, the Ts are not as meaningless as some would suggest.

Willow hedges are great and have a very small 'footprint' compared to others, but they make a very poor boundary feature.
arborlad

smile...it confuses people
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