At least they left the fence posts

Re: At least they left the fence posts

Postby takeafence » Wed May 18, 2016 2:51 pm

Thanks again for all of your responses.

Probably no surprise to hear that I favour arborlad’s Quicquid plantatur solo, solo cedit argument. I am of course grateful that my dispute is fully resolved. This thread is now just running as a discussion.

My limited understanding of case law, even though the panels have only been slid in between the concrete posts (and in my case they are also sat on top of the concrete base panels), they have become part of the structure of the fence.
Holland v Hodgson (1872) LR 7 CP 328 http://e-lawresources.co.uk/Land/Holland-v-Hodgson.php

The owner of the posts and base panels might therefore immediately claim ownership of the new panels.

If you were feeling particularly vexed about your neighbours actions, might you also claim that the old panels once removed have become chattels. The chattels do not belong to the neighbour, so the neighbour could be billed a compensatory amount for them if they have been destroyed. I am thinking it might be best to fix some arborlad security brackets before sending that letter to them though.

From the opposing point of view, if you are looking to replace your neighbour’s fence and take ownership, might it be better to ensure you remove everything rather than leaving the posts behind?
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Re: At least they left the fence posts

Postby Collaborate » Wed May 18, 2016 4:02 pm

You're right that this is a purely academic exercise.

In the case you refer to the machines were nailed to the floor. With a standard panel fence the panels are not fixed with nails, glue or anything else save for gravity. That might make a difference, although would the fact that they are a part of the fence, part of which is attached to the earth, swing the argument back the other way? I think it's arguable at least.

It would be a good idea to attach the brackets. One alternative would be to attach trellis to the panels, so as to overlap the posts. This would make it virtually impossible for the panels to be removed, and also perhaps help preserve them if you plant something up them.
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Re: At least they left the fence posts

Postby arborlad » Thu May 19, 2016 10:56 am

takeafence wrote:Thanks again for all of your responses.

Probably no surprise to hear that I favour arborlad’s Quicquid plantatur solo, solo cedit argument.



Thanks, various discussions have given this a Biblical origin - so certainly something that has stood the test of time :)



My limited understanding of case law, even though the panels have only been slid in between the concrete posts (and in my case they are also sat on top of the concrete base panels), they have become part of the structure of the fence.



You are correct, your land - your fence..........you could play with words like sat on or in between, but it wont change the basic fact that it is your fence. Concrete base panels=gravel boards.



I am thinking it might be best to fix some arborlad security brackets....



:) :) Lots of different designs, manufacturers and suppliers out there, but quite happy to have my name used for them, a wooden clothes peg with the spring removed and the two halves opposed to each other in the gap between panel and post also works well.



...... before sending that letter to them though.



Letters are normally seen as an escalation of a dispute, as yours seems to have been amicably resolved without resort to the legal process, is it wise to leave a paper-trail?



From the opposing point of view, if you are looking to replace your neighbour’s fence and take ownership, might it be better to ensure you remove everything rather than leaving the posts behind?



There is a thread with similarities to yours where this happened, but much more contentious and it escalated to the courts.
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Re: At least they left the fence posts

Postby arborlad » Thu May 19, 2016 3:07 pm

Collaborate wrote:nothingtodowithme posted
There is vast case summary relating to "what is attached to the soil belongs to the soil".

To apply the phrase to a fence or posts for that matter is too simplistic and incorrect.



Indeed she did and completely without validation. If you believe she is correct, then fences and posts become chattels and everyone takes their chattels with them...........a prospect simply too ludicrous to even contemplate.
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Re: At least they left the fence posts

Postby Collaborate » Thu May 19, 2016 4:49 pm

I'm far from impressed with your own efforts at validation. Beyond "I can't be bothered to look at the authorities", I'm not sure what you contributed to the debate.
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Re: At least they left the fence posts

Postby arborlad » Fri May 20, 2016 9:59 am

Collaborate wrote:The difference is too subtle for you to understand, clearly.

The rule says that if you sell a plot of land, you are selling any building upon it (subject to interpretation).

That rule does not necessarily apply to OP's situation.

In any event, removable panels in a fence may or may not be fixtures.



To avoid any confusion, can you clarify exactly what you mean by the bit in blue?
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Re: At least they left the fence posts

Postby Collaborate » Fri May 20, 2016 10:55 am

Not quite sure what needs clarification, other than the bit about interpretation. The caselaw deals extensively with disputes about whether a thing is actually attached to the land as a fixture, or is a chattel. There are pages and pages of legal argument, which may lead to the conclusion that the law here can be sometimes a grey area.
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Re: At least they left the fence posts

Postby arborlad » Fri May 20, 2016 11:20 am

Collaborate wrote:Not quite sure what needs clarification,



What you appear to be saying is that when you sell (convey) a plot of land, only buildings are included in that conveyance (sale).........s62 Law of Property Act, quite clearly states otherwise.
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Re: At least they left the fence posts

Postby Collaborate » Fri May 20, 2016 12:28 pm

Simply referring to "building" rather than the far more catchy all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof has clearly been my downfall.



You challenged nothingtodowithme's very proper comment about the body of caselaw in this area that makes the law more complex than the way it has been stated in this thread. You leapt to the conclusion that the caselaw was irrelevant, without having considered it.

What s 62 actually states us this

A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.


s62 deals with what happens on a conveyance. Absent a conveyance s62 has no relevance. You need therefore to fall back on the case law, which is summarised in the link I posted.
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Re: At least they left the fence posts

Postby Conveyancer » Fri May 20, 2016 3:19 pm

The maxim Quicquid plantatur solo, solo cedit is absolute. What the cases are about is whether the thing in question is affixed to the land. If it is, it belongs to the land.

When I say that if you erect a fence on your neighbour's land it belongs to your neighbour there is an assumption that there is no doubt about where the neighbour's land is.

The maxim is not necessarily a lot of help in establishing where a boundary is because you have to establish where the boundary is before you can say who owns a fence.

Section 62 is a bit of a red herring because it only applies if the fence belongs to the grantor. You cannot convey what you do not own. Sub-section (5) confirms it:

This section shall not be construed as giving to any person a better title to any property, right, or thing in this section mentioned than the title which the conveyance gives to him to the land or manor expressed to be conveyed, or as conveying to him any property, right, or thing in this section mentioned, further or otherwise than as the same could have been conveyed to him by the conveying parties.
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Re: At least they left the fence posts

Postby Collaborate » Fri May 20, 2016 4:46 pm

I did wonder about s62(5), but the I found the wording difficult to follow.

Does that envisage then that there may be a fixture on the land, the title of which has not passed to the landowner? I think builders sometimes have liens over what they are building.

The thing is, if the fence lies outside the boundary, then it is not relevant to the conveyance. 62(5) would only have effect if it lies within the boundary.
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Re: At least they left the fence posts

Postby Conveyancer » Fri May 20, 2016 5:03 pm

Collaborate wrote:Does that envisage then that there may be a fixture on the land, the title of which has not passed to the landowner?


Not really, no. The section is a word-saving provision. The section is read into a conveyance except to the extent that the conveyance provides to the contrary.

Collaborate wrote:I think builders sometimes have liens over what they are building.


If a builder is, say, putting up a conservatory he can reserve the right to remove it if not paid. This no different a concept from, say, selling the bricks in a wall on your property to someone. The right is given to sever the thing and, once it is severed, it is no longer land. However, until severed, the thing is part of the land. "Lien" is not quite the right word as you cannot have a lien over land.

Collaborate wrote:The thing is, if the fence lies outside the boundary, then it is not relevant to the conveyance. 62(5) would only have effect if it lies within the boundary.


Correct.
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Re: At least they left the fence posts

Postby MacadamB53 » Sat May 21, 2016 8:17 am

Hi all,

remember this?

The fence is marked as ours on the deeds and the neighbour does not dispute the ownership.

if ownership is undisputed it follows that the fence stands on the OP's land.

Kind regards, Mac
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Re: At least they left the fence posts

Postby arborlad » Sat May 21, 2016 10:13 am

nothingtodowithme wrote:Anyone else want to add further comments to this thread please feel free. :roll:



This: Quicquid plantatur solo, solo cedit has operated as it should, always has and will continue to do so.

If I were to place a contentious post on here and cited the existence of various evidence to support that claim, contained within that first post would be at least one example of that evidence.

I do not need your permission to post on this forum.
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Re: At least they left the fence posts

Postby arborlad » Sat May 21, 2016 12:07 pm

Collaborate wrote:In any event, removable panels in a fence may or may not be fixtures.



To answer that properly, you would also need to look at the intention of the fence owner.

When a panel is placed between two concrete slotted posts, the intention is that it stays there - permanently, or until it has reached the end of its life when it is replaced.

Capable of being removed is not the same as removable, gloves and sunglasses are removable, there when you need them, not there when you don't.

If the addition of a 50p bracket and a couple of screws changes it from a chattel to a fixture - what next?
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