Boundary fence

Boundary fence

Postby Andrew scott » Sat Mar 15, 2008 6:44 pm

I purchased my house off the council 5 years ago. upon reading my deeds i noticed even though the fence that adjoins both properties is staked on my side it states clearly it is a party fence for which both owners are responsible for. My neighbour has fastened various bits of frame work to their side of the fence leaving screws sticking through my side. Can i request these be removed as no request was made by my neighbour for permission to attach things to the fence. The neighbours house is still currently council and will this have a bearing on the outcome.

Kind regards Andy
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Re: Boundary fence

Postby TrevR » Sat Mar 15, 2008 9:51 pm

Not sure if how you'd get on with asking them to remove the stuff, but they definitely should've asked if it's a party fence.

Anyway, the screws sticking through sounds ropey, so I'd mention that to them.
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Postby tryingnottobeafool » Wed Mar 19, 2008 8:19 pm

you could hammer the end of the screw down, just like a nail ?
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Postby Conveyancer » Thu Mar 20, 2008 9:14 am

I am having difficulty believing that anyone, let alone a council, has made a fence a party structure.
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Postby teeny » Thu Mar 20, 2008 3:34 pm

Conveyancer

I am having difficulty believing that anyone, let alone a council, has made a fence a party structure.[/quote]

Just out of interest why do you say this!
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Postby Conveyancer » Fri Mar 21, 2008 11:01 am

First, I should make it clear that there is a distinction between:

A. A declaration in a deed that a structure is a party structure

and

B. A provision in a deed imposing reciprocal obligations to repair a structure.

As to A, section 38 of the Law of Property Act 1925 provides that the ownership of a party structure is severed vertically. This is fine for a wall, but nonsense for a fence.

As to B, it is far more practical to make an owner wholly responsible for the fence on one side.
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Postby teeny » Fri Mar 21, 2008 9:19 pm

Conveyancer

As to A, section 38 of the Law of Property Act 1925 provides that the ownership of a party structure is severed vertically. This is fine for a wall, but nonsense for a fence.

As to B, it is far more practical to make an owner wholly responsible for the fence on one side.[/quote]

:D So where does that leave us in relation to fences where the deeds state that they are party fences. Do we assume that the boundary line is down the middle of the fence or what. I am confused now!!

cheers
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Postby Rowan » Fri Mar 21, 2008 9:30 pm

Perhaps it might be more understandable if the description used was 'joint' fences - both responsible for upkeep, repair and replacement

Everything to do with the fence has to be by mutual agreement
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Postby teeny » Fri Mar 21, 2008 9:36 pm

[quote="Rowan"]Perhaps it might be more understandable if the description used was 'joint' fences - both responsible for upkeep, repair and replacement

Everything to do with the fence has to be by mutual agreement[/quote]

:D But on who's land would a joint fence sit (50/50).

cheers
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Postby arborlad » Fri Mar 21, 2008 9:45 pm

[quote="teeny"][

:D But on who's land would a joint fence sit (50/50).

cheers[/quote]

Yes, half the structure would be on one owners land, and the other half will be on the adjoining owners land.
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smile...it confuses people
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Postby teeny » Fri Mar 21, 2008 9:58 pm

arborlad

Thanks for that arborlad. Is there no legislation stating this or is it just the done thing (referring to conveyancer's post).
cheers
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Postby andrew54 » Fri Mar 21, 2008 10:24 pm

[quote="Rowan"]Perhaps it might be more understandable if the description used was 'joint' fences ....[/quote]

Yes, but teeny was refering to where the documents say 'party fences'. And Conveyancer has made it clear that "the ownership of a party structure is severed vertically".

If we change things it might make more sense, but if it says party fences then they are party fences.
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Postby arborlad » Sat Mar 22, 2008 1:19 pm

[quote="teeny"]arborlad

Thanks for that arborlad. Is there no legislation stating this or is it just the done thing (referring to conveyancer's post).
cheers[/quote]

Just common sense I think, if you own half of something, then half of it will be on your land.
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Postby teeny » Sun Mar 23, 2008 11:16 am

Conveyancer

Are you able to clarify your initial statement.

cheers
Teeny
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Postby Conveyancer » Sun Mar 23, 2008 12:35 pm

The text of Section 38 (1) of the Law of Property Act 1925 reads as follows:

Where under a disposition or other arrangement which, if a holding in undivided shares had been permissible, would have created a tenancy in common, a wall or other structure is or is expressed to be made a party wall or structure, that structure shall be and remain severed vertically as between the respective owners, and the owner of each part shall have such rights to support and user over the rest of the structure as may be requisite for conferring rights corresponding to those which would have subsisted if a valid tenancy in common had been created.

If we take out the bits we are not interested in we get:

Where under a disposition a wall or other structure is or is expressed to be made a party wall or structure, that structure shall be and remain severed vertically as between the respective owners.

The words refer only to the structure, but I think it has to follow that in the absence of any express wording in the disposition and in a normal situation, once you have determined the mid-line of a structure which does not form part of a building, that that line extended up and down is the boundary between the two properties.

Whilst accepting that walls can be poorly constructed and that fences may be solidly constructed, on the whole walls tend to be longer lasting than fences. Accordingly if a wall is declared to be a party structure there is some certainty as to the position of the boundary so long as the wall that was there at the time the dispostion was made remains in place. Fences, however, tend to lean. It cannot be the case that the boundary changes every time the wind blows, but if the fence has been declared to be a party structure it will still be the case that each owner will own one half of the fence.

If a party wall is replaced by a new wall in the same position, the new wall will be a party wall, not because of the declaration made in the disposition, but because it is built half on one owner's land and half on another's, the position of the boundary having been fixed by the the fact that the old wall was declared to be a party wall.

If a party fence is replaced by a new fence its position has to be exact to make it a party fence. If it has been sited one side or other of the boundary, the position of which was fixed by the position of the old fence, then (in the absence of agreement) it cannot be a party fence since it is the rule that what is planted in the land belongs to the land.

Further, walls tend to be more expensive to repair and replace than fences. That is why garden walls are often made party walls. When it comes to fences it is far more sensible to make the fence the responsiblilty of one owner. This is the norm on most estates, though it often leads to the owner at one end being responsible for fences on two sides.

I do not think that the draftsman of the 1925 Act had fences in mind. It is a bit of a nonsense for the ownership of a wooden panel to be severed vertically and even more absurd in the case of a strand of wire in a post and wire fence.
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