Neighbour demanding we replace fence

Re: Neighbour demanding we replace fence

Postby Eliza » Wed Aug 24, 2016 2:29 pm

I think it needs to be clarified what the wording is re whether you can be expected to have the "burden" of the covenant of paying towards the fence - in view of the fact you arent getting any "benefit" of having the fence there by the sound of it.

Is this a similar thing to the fact that the law has, fairly recently, been changed as regards a ROW for instance - ie to effect of one doesnt have the "burden" of paying towards maintenance of it unless one has the "benefit" of it?

I guess someone like Pilman or Conveyancer could clarify whether the same sort of principle applies and what the wording is if so?
Apologies for not giving exact personal details in my posts - you never know who is reading....
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Re: Neighbour demanding we replace fence

Postby mr sheen » Wed Aug 24, 2016 2:54 pm

k1970 wrote:This is the bit in the Transfer that worries me though -

"THE TRANSFEREE HEREBY COVENANTS with the Transferor for the benefit of the remainder of the Land comprised in the estate or any part thereof and also as a separate covenant with every other person of any other part of the estate with Intent to bind the property hereby transferred into whosoever hands the same may come but not so as to render the transferee or the person deriving personally liable for any breach or omission after he or they shall have parted with all interest in the property that he the transferee and the persons deriving title under him will observe and perform the stipulations which are set out in the Fourth Schedule herto"
).


This allows all owners of the rest of the estate the right to seek to enforce the covenants.
Whether they will be successful is another matter as you have already been told before. it is difficult and potentially risky and expensive to seek to enforce a covenant. Enforcing a positive covenant is virtually impossible as already discussed but that does not stop a neighbour from trying and they may be relentless or they may accept that it is a pointless exercise....that is the chance you will have to take.

As outlined previously you are wasting effort bothering with this. It is virtually impossible to force someone else to pay for anything they don't want. You don't want a new fence so it will be an idiot who will pursue it against you....but your neighbour may be an idiot who knows?

Just in case they pursue it relentlessly you might want to follow civil procedure rules so that you keep yourself in a good light for the courts.
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Re: Neighbour demanding we replace fence

Postby arborlad » Wed Aug 24, 2016 3:01 pm

Eliza wrote:......in view of the fact you arent getting any "benefit" of having the fence there by the sound of it.




Can you explain what you mean by this please?





Eliza wrote:Is this a similar thing to the fact that the law has, fairly recently, been changed as regards a ROW for instance - ie to effect of one doesnt have the "burden" of paying towards maintenance of it unless one has the "benefit" of it?




I'm not aware of any changes in the law................I think what you might mean is: 'no benefit without burden'.
arborlad

smile...it confuses people
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Re: Neighbour demanding we replace fence

Postby k1970 » Wed Aug 24, 2016 3:04 pm

It's difficult for a lay person to get their head around it all. Thanks for everyone's input. I am sending a short and to the point letter to the solicitor just reiterating our stance and we'll have to take it from there.
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Re: Neighbour demanding we replace fence

Postby k1970 » Wed Aug 24, 2016 3:21 pm

mr sheen - but it's still a bit of a worry for people like us who have never had to deal with something like this. Thanks for explaining about who can enforce covenants. And yes, he's an idiot.

arborlad - it's behind a hedge so we don't see it.
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Re: Neighbour demanding we replace fence

Postby mr sheen » Wed Aug 24, 2016 4:28 pm

There are some people who think that they can get their own way by getting a solicitor to send a letter since they believe that people are afraid of solicitors letters.....they are living in the dark ages! We now live in a world of information at our fingertips.
I understand it is a worry but this issue is a long way from a court yet and if the solicitor keeps sending letters, keep sending one back very politely, since it will cost him lots of money.
His solicitor may advise him of the futility of his quest eventually or will just keep taking his money.

Worst case scenario for you ....he replaces the fence and takes you to small claims court. If you have followed the CPRules and outlined your position calmly and clearly in letters, you have a defence and he has everything to prove. His hurdles...to prove he has the right to enforce the covenant, prove what 'in repair' means in the covenant and prove a positive covenant is enforceable....don't rate his chances at proving all these!
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Re: Neighbour demanding we replace fence

Postby despair » Wed Aug 24, 2016 5:43 pm

DITTO +++++
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Re: Neighbour demanding we replace fence

Postby COGGY » Wed Aug 24, 2016 7:50 pm

Mr Sheen said

I understand it is a worry but this issue is a long way from a court yet and if the solicitor keeps sending letters, keep sending one back very politely, since it will cost him lots of money.


Agreed

Some solicitors will write almost anything requested of them. Coggy
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Re: Neighbour demanding we replace fence

Postby jonahinoz » Wed Aug 24, 2016 7:59 pm

Hi,

Does the fence, that you are required to repair, have to conform to any specification? If not, would running a single strand of wire, from end to end, suffice?

John W
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