A misinterpretation of a covenant leading to dispute

A misinterpretation of a covenant leading to dispute

Postby timeonmyhands » Mon Oct 10, 2016 11:25 am

Hiya,

My first post here. I registered last week and would have posted my query, but (all being well) I appear to have solved it in the meantime. But since I've been granted access to the forum, I thought it might be useful to give a summary here just in case it's of help to someone else.

The story goes...

My neighbour passed me a quote for his fence on our (shared) boundary. Now, it is assumed shared because the deeds do not specifically indicate responsibility - no Ts or Hs. There's a 'left side is yours' agreement on my side of the street - before anyone points this out to be an urban myth, yes I have checked the Land Registry site, and yes I know there is nothing in the law aside from the fact that there is no law to this effect, however generally everyone on the street has an unofficial agreement that we look after the border on the left.

Now, my neighbour (whom I am on good terms with) informed me that he was in talks with his other neighbour and that they had come across a law which meant that legally both parties were obliged to split the cost 50/50 - he said words to the effect of 'some people could take you to court for that amount, but I'm not going to do this, etc, etc'. Now I don't like talk of courts and solicitors - it makes me paranoid - and I didn't want this all hanging over me.

After a bit of reading, and discovering that there is no obligation to pay for fences, etc, even though our fence is built almost exactly on the dividing line. And I discovered that there is a covenant in our deeds specifying equal responsibility for Party wall fences and fence walls.

Basically his other neighbour had blustered away about this covenant, not realising (or perhaps in full knowledge and just trying to pull a fast one) that the party fence wall act does not include wooden fences at all. Unfortunately he's already coughed up 50% for their fence, but knows better now.

Anyhow, thanks for all of your advice here that helped me to resolve this - you've created a fantastic resource here.
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Re: A misinterpretation of a covenant leading to dispute

Postby MacadamB53 » Mon Oct 10, 2016 12:30 pm

Hi timeonmyhands,

the agreement that the walls and fences are party walls and fences means just that - the walls and fences straddle the boundary - and has nothing whatsoever to do with the PWA.

your neighbour who paid 50/50 was correct.

Kind regards, Mac
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Re: A misinterpretation of a covenant leading to dispute

Postby span » Mon Oct 10, 2016 12:49 pm

MacadamB53 wrote:
your neighbour who paid 50/50 was correct.



Doing work and incurring expense without the agreement of other parties and then expecting those parties to cover 50% would tend to suggest he wasn't.
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Re: A misinterpretation of a covenant leading to dispute

Postby MacadamB53 » Mon Oct 10, 2016 1:11 pm

span wrote:
MacadamB53 wrote:
your neighbour who paid 50/50 was correct.



Doing work and incurring expense without the agreement of other parties and then expecting those parties to cover 50% would tend to suggest he wasn't.
I read that the shared costs were agreed prior to any work being done.
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Re: A misinterpretation of a covenant leading to dispute

Postby timeonmyhands » Mon Oct 10, 2016 1:35 pm

My point was that the party wall and fences act stipulated in the covenant does not refer to fences - only walls.
eg

[quote]What are party walls, party fence walls and party structures?

Examples of a party wall include:
A wall that stands on the boundary between the building owner and the adjoining owner’s land. The wall may be part of one building (such as a house wall that is also the boundary wall) or part of two separate buildings (such as the shared wall in a semi-detached house or a terraced row of houses).
A wall on the building owner’s land, where the adjoining owner has a building that is enclosed by that same wall (for example, the adjoining owner’s garage).
A party fence wall is a wall that stands on the boundary, but has no buildings attached to it. The classic example is a garden wall. However, wooden fences are not party fence walls.[/quote]

Seeing as the covenant didn't indicate wooden fences, only party walls and party fence walls, then my point was that the other neighbour should not have put any pressure on my neighbour to think that he was responsible for paying half of the cost. In the end they did make an agreement, but that agreement was based on a misreading of the act.
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Re: A misinterpretation of a covenant leading to dispute

Postby COGGY » Mon Oct 10, 2016 2:05 pm

I understand (from reading on this site) that there is no obligation to have a fence. If one person does not want a fence then they cannot be forced to contribute to one, notwithstanding any wording in their deeds. Read through some of the postings under Fences on here. Regards Coggy
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Re: A misinterpretation of a covenant leading to dispute

Postby timeonmyhands » Mon Oct 10, 2016 2:18 pm

COGGY wrote:I understand (from reading on this site) that there is no obligation to have a fence. If one person does not want a fence then they cannot be forced to contribute to one, notwithstanding any wording in their deeds. Read through some of the postings under Fences on here. Regards Coggy


That's why I initially questioned them, notwithstanding the wording of the deed. It all comes down the word 'fence' meaning different things in the context of the act.

I'm aware that there's no obligation to have a fence. What got me worried was people arbitrarily quoting things as being the law.
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Re: A misinterpretation of a covenant leading to dispute

Postby MacadamB53 » Mon Oct 10, 2016 8:03 pm

Hi timeonmyhands,

the covenant has absolutely nothing to do with the PWA - it is a declaration by both parties that they recognised all extant boundary features on their mutual boundary as straddling said boundary.

one does not consult the PWA to find out who owns a fence or wall, one consults the title register and/or conveyance documents.

I repeat - your neighbours were right to share the cost of replacing their fence because the register shows the fence to be shared.

Kind regards, Mac
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Re: A misinterpretation of a covenant leading to dispute

Postby Collaborate » Mon Oct 10, 2016 10:21 pm

...although a covenant to pay for something is a positive covenant, and not enforceable against subsequent estate owners.
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Re: A misinterpretation of a covenant leading to dispute

Postby timeonmyhands » Tue Oct 11, 2016 2:15 pm

MacadamB53 wrote:Hi timeonmyhands,

the covenant has absolutely nothing to do with the PWA - it is a declaration by both parties that they recognised all extant boundary features on their mutual boundary as straddling said boundary.

one does not consult the PWA to find out who owns a fence or wall, one consults the title register and/or conveyance documents.

I repeat - your neighbours were right to share the cost of replacing their fence because the register shows the fence to be shared.

Kind regards, Mac


As I'm aware, the register shows the boundary to be shared. However the Land Registry indicates that a boundary feature is a separate thing.

In regards to the covenant - it mentions party walls and party fence walls and party wall fences

It does not mention fences

Therefore I will take the definition of what the covenant describes as NOT including wooden fences based on all guidance I've so far seen.


one does not consult the PWA to find out who owns a fence or wall, one consults the title register and/or conveyance documents.


I'm not consulting this. I'm aware of the following
1. The boundary is shared (not necessarily the boundary feature)
2. The title only describes responsibility for things mentioned in the PWA that do not exist on the boundary (they may have done once in the past).
Last edited by timeonmyhands on Tue Oct 11, 2016 2:33 pm, edited 1 time in total.
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Re: A misinterpretation of a covenant leading to dispute

Postby MacadamB53 » Tue Oct 11, 2016 2:31 pm

Hi timeonmyhands,

what guidance would that be? (please don't say PWA...)

Kind regards, Mac
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Re: A misinterpretation of a covenant leading to dispute

Postby timeonmyhands » Tue Oct 11, 2016 2:34 pm

MacadamB53 wrote:Hi timeonmyhands,

what guidance would that be? (please don't say PWA...)

Kind regards, Mac


The land registry a solicitor and a surveyor. Also see the edit made at the bottom of my last post.
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Re: A misinterpretation of a covenant leading to dispute

Postby timeonmyhands » Tue Oct 11, 2016 2:37 pm

Besides - what is the point of using specialised language in a covenant if those terms are not quantified by an official act?

Edit:

Genuine question. The covenant refers to "Party Fence Walls"

The PWA (yeah, I know) says...

"A wall is a "party fence wall" if it is not part of a building, and stands astride the boundary line between lands of different owners and is used to separate those lands (for example a masonry garden wall). This does not include such things as wooden fences or hedges."

So how else am I supposed to interpret this covenant???
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Re: A misinterpretation of a covenant leading to dispute

Postby MacadamB53 » Tue Oct 11, 2016 3:38 pm

Hi timeonmyhands,

I've tried to help you grasp that deeds have nothing to do with the PWA but it seems I've failed.

hopefully future readers of this thread will understand, though.

All the best, Mac
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Re: A misinterpretation of a covenant leading to dispute

Postby timeonmyhands » Tue Oct 11, 2016 4:06 pm

MacadamB53 wrote:Hi timeonmyhands,

I've tried to help you grasp that deeds have nothing to do with the PWA but it seems I've failed.

hopefully future readers of this thread will understand, though.

All the best, Mac


Okay, we're at cross-purposes. Perhaps my initial post was not clear. The deeds do not specifically mention fences. Why then are you persisting that there is a split responsibility for maintaining them!
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