T marks disagree with neighbour's

T marks disagree with neighbour's

Postby Farquar » Sat Sep 24, 2016 1:24 pm

Probably a common problem, but first time I've had to think about it, and can't find clear answers.

The issue - normal boring housing estate built in 1960's, houses all owned freehold, and our neighbourhood built by two different developers, Wimpy and AN Other. Our row and the one backing onto our gardens both built by Wimpy, and the transfer deed plan shows all fence 'responsibilities' (not ownership, but repair and maintenance) clearly marked over the whole development. Our left hand fence, a very substantial concrete and wood affair, shows T marks on the 'other' side, ie not ours, but facing what would have then been empty land zoned for housing. The houses that were eventually built on that side of the fence c 2 yrs later were built by a different developer, who I believe bought the land from Wimpy.
The plan for that development shows no T marks on the overall plan, but each individual plot with a hand drawn line round it and one T mark on the inside of one side boundary line. The net effect in respect of two of my neighbours and I is that my left hand fence (it just happens to be an expensive one, now 50 years old and starting to break) is shown as allocated to no-one. One neighbour is the original owner of his house, I and the other neighbour are about fourth owners of ours in succession.

My conclusions so far. There appears to be no clear legal way to resolve responsibility for the fence, so it's a matter of sorting out amicably with the neighbour and sharing the expenses. But raises the more general issue of the actual legal status of the T marks and associated wording in the original sale deed. As far as I can see, they appear to amount to a constructive covenant ('to repair and maintain') in a contract between two parties, the developer and the first purchaser. So what effect do they have as soon as one or both of these parties have moved on? The developer has no further interest as soon as he has sold the house, and as I understand it constructive covenants do not pass with the land, so would not bind a successor purchaser. So they don't really seem to be legally enforceable at all, but rather a handy way of dividing up fence responsibilities, as long as they are consistent as between neighbours. The problems arise when they are not consistent......

Grateful for any views on whether I have got this right.
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Re: T marks disagree with neighbour's

Postby mr sheen » Sat Sep 24, 2016 2:20 pm

He who wants a fence, pays for it.
It is well-nigh impossible to enforce a positive covenant or force someone to pay out money for a fence if they don't want to.

You can try to sort it amicably and if both parties wish to split the cost that is great. There is no legal obligation to have a fence at all if you don't want it. If one party does not want to split the cost, the other party has the choice of leave as is or pay solely for a new fence.
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Re: T marks disagree with neighbour's

Postby arborlad » Sat Sep 24, 2016 2:28 pm

Farquar wrote: Our left hand fence, a very substantial concrete and wood affair,.....



If this is a featheredge fence, which side are the rails?
arborlad

smile...it confuses people
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Re: T marks disagree with neighbour's

Postby Farquar » Sat Sep 24, 2016 10:00 pm

Arborlad

It is what I understand as a featheredge fence with three arris rails. The rails are on the neighbour's side. I've seen other queries on here saying that this is conventionally taken as indicating the 'owners' side, but that this has no actual legal or other indicative force.
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Re: T marks disagree with neighbour's

Postby despair » Sat Sep 24, 2016 10:19 pm

If the fence is of serious age i would suspect its been installed under convention and that it beelongs to the neighbour

its only recent years where he who pays the piper calls the tune
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Re: T marks disagree with neighbour's

Postby MacadamB53 » Sat Sep 24, 2016 11:28 pm

Hi Farquar,

what effect do they have as soon as one or both of these parties have moved on?

no effect - simple.

do you want a fence? then build a fence.
would you prefer a wall? then build a wall.
hedge? plant a hedge.
nothing? leave things as they are.

if your neighbour wants the same as you they could either build a separate like-for-like (never a good idea), build nothing and just pay towards yours (that would be generous), ask you to build nothing but rather pay towards theirs (generous of you), or agree to build just one - sharing the cost - and that this structure will be straddling the boundary so is shared (another very bad idea).

Kind regards, Mac
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Re: T marks disagree with neighbour's

Postby Farquar » Mon Sep 26, 2016 8:33 am

Many thanks for the replies - useful to have my own thoughts confirmed.
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Re: T marks disagree with neighbour's

Postby arborlad » Mon Sep 26, 2016 11:28 am

Farquar wrote:Arborlad

It is what I understand as a featheredge fence with three arris rails. The rails are on the neighbour's side. I've seen other queries on here saying that this is conventionally taken as indicating the 'owners' side, but that this has no actual legal or other indicative force.




The convention of rails on the owners side has a couple of centuries of best practice to support it.

No legal force is correct, a fence built like that in the 1960s is far more likely to be indicative of ownership, less so in this decade!

How does the fence line up with any other boundary features of known ownership?

How accessible was the open land before the other houses were built?
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smile...it confuses people
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Re: T marks disagree with neighbour's

Postby jonahinoz » Mon Sep 26, 2016 7:52 pm

Hi,

There is a strip of land, probably 4" wide between consecutive fence post. The fence panels may be biased one way or the other between the posts, or slap bang on the centre line. It would be sensible if the owner of that strip had it next to the rest of his property .... eg: with the fence posts his side. ???

I'd guess that the first house to be built erected a fence before the next house was built ... the original builders would have done that.

602
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Re: T marks disagree with neighbour's

Postby Farquar » Tue Sep 27, 2016 12:51 pm

Jonah/Arborlad

There is no doubt that the fence in question was built by the developers who built my house, on the left hand side of our plot looking down the garden, and both our house and this fence were built before the neighbouring houses on the left hand side. The T marks on our original transfer deed clearly point outside our plot, so when that was drawn they were indicating that the fence was not covered by our deeds, even though it was constructed by our builder - the T marks were effectively on a piece of empty land when they were drawn. On the plans for the four houses eventually built on the land a couple of years later there are no T marks at all on the relevant fence.

Hence the issue.
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Re: T marks disagree with neighbour's

Postby MacadamB53 » Tue Sep 27, 2016 8:40 pm

Hi Farquar,

are these 'T' marks made reference to in the register?

if not, forget about them because they're meaningless.

anyway, build a fence if you want one, or else don't.

Kind regards, Mac
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