Who pays for new fence if I'm giving back land?

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Bobcat
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Who pays for new fence if I'm giving back land?

Post by Bobcat » Fri May 18, 2018 5:14 pm

Hi,
I have lived in my property for 12 years & never even questioned why the garden fence is wonky.
A new guy bought the top floor flat next door & is converting it to rent out. It turns out all my garden doesn't belong to me as shown on the deeds, and my neighbour the other side who has lived there 40 years said a previous owner in my property stole a bit of the neighbours garden by putting the fence in the wrong place

First I heard of this was a month or 2 ago when the new neighbour asked why. Anyway...I'm happy to have the boundary corrected & give him back the few square metres but do I have to split the cost? The fence IS my responsibility but in my opinion doesn't need replacing. He's telling me it should be my cost and that he's being good offering to split.

I have a shed and patio on the land in question which is how it was in 2006 when I bought it. I feel i'm restoring the land & he should rebuild the fence/boundary as his part of it. He's offered to build me a new shed base as the old shed won't survive the move but again. ..should he contribute to my new shed?
Would be so grateful to get advice as his solicitor has said it's all down to me to pay for which doesn't seem fair as I'm willingly giving up part of the garden I've owned for 12 years.
Help please! Trying to sort amicably without expensive solicitor fees. Thanks Vicki

Collaborate
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Re: Who pays for new fence if I'm giving back land?

Post by Collaborate » Fri May 18, 2018 11:51 pm

Well, you could start by pointing out to him that you have adverse possession of the extra land now. You are entitled to insist that the fence remains where it is.

On the other hand in exchange for you giving up that land he can agree to pay for the new fence.

Bobcat
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Re: Who pays for new fence if I'm giving back land?

Post by Bobcat » Sat May 19, 2018 7:28 am

Thanks, but I read that adverse possession laws had changed & I haven't made a claim on that land & if I claim now he will object. I don't mind giving the land back but don't want to pay for fence plus need a new shed as old one too fragile to move. I'm wondering whether to just hang back on it all but am worried if he starts getting his solicitor to make contact that we then won't be able to go back to amicable discussions & sorting it out between ourselves.
Appreciate the response... thanks :)

Collaborate
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Re: Who pays for new fence if I'm giving back land?

Post by Collaborate » Sat May 19, 2018 8:39 am

Well, there is still a process your neighbour has to undergo to object to any claim for AP that you make.

You would have to show that it would be unconscionable because of an equity for you to be dispossessed ,and that the circumstances are such that you ought to be registered as the proprietor.

As an example, if a squatter built on land owned by A, and over the next ten years, A made no objection at all, but nevertheless knew that it was the owner of the land, the squatter could argue that it would be unconscionable for A then to take possession proceedings.

If you can prove 10 years occupation, your claim could still be defeated if you could not prove one of 3 things, the most relevant one for you being reasonable mistake on boundaries. This is what Practical Law has to say about it:
The squatter must establish each of the four elements to this condition:
The land to which the squatter's application relates (the disputed land) must be adjacent to other land that belongs to the squatter (squatter's own land).
There must not have been any determination of the exact boundary line between the disputed land and the squatter's own land under section 60 of the LRA 2002 and under any rules made under section 60.
The squatter (and any predecessor in title) must have reasonably believed that they owned the disputed land for at least ten years of the period of adverse possession ending on the date of the application (or the day before the date of the squatter's eviction if the squatter's application is made under paragraph 1(2) of Schedule 6). In IAM Group plc v Chowdrey [2012] EWCA Civ 505, the Court of Appeal held that in determining if the squatter's belief is reasonable, the squatter should not be imputed with an agent's knowledge. See Legal update, Adverse possession: belief of an agent not relevant (Court of Appeal)
The disputed land must have been registered more than one year before the date of the application.
The last element is important to give protection to the landowner who has applied to register its title at a time when a squatter has already been
As an alternative you can also point out that the LR plan does not accurately record the boundary to the inch, and boundaries can and do move over time.

MacadamB53
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Re: Who pays for new fence if I'm giving back land?

Post by MacadamB53 » Sat May 19, 2018 9:55 am

Hi Bobcat,

ultimately, unless you are the original owner of your property - and we know you’re not - you are NOT responsible for maintaining a fence.

this is because positive covenants - which is what this is - are not passed on when land changes hands.

your neighbour needs this fact explaining to them and a better appreciation of reality - if you left the boundary “open plan” he’d have four options: 1. do nothing, 2. install a boundary feature himself, 3. find the original owner of your property (or their heirs) and try and enforce the covenant, or 4. grow up and negotiate with you.

kind regards, Mac

arborlad
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Re: Who pays for new fence if I'm giving back land?

Post by arborlad » Sat May 19, 2018 11:39 am

Bobcat wrote:
Fri May 18, 2018 5:14 pm
Hi,
I have lived in my property for 12 years & never even questioned why the garden fence is wonky.
A new guy bought the top floor flat next door & is converting it to rent out. It turns out all my garden doesn't belong to me as shown on the deeds, and my neighbour the other side who has lived there 40 years said a previous owner in my property stole a bit of the neighbours garden by putting the fence in the wrong place

First I heard of this was a month or 2 ago when the new neighbour asked why. Anyway...I'm happy to have the boundary corrected & give him back the few square metres but do I have to split the cost? The fence IS my responsibility but in my opinion doesn't need replacing. He's telling me it should be my cost and that he's being good offering to split.

I have a shed and patio on the land in question which is how it was in 2006 when I bought it. I feel i'm restoring the land & he should rebuild the fence/boundary as his part of it. He's offered to build me a new shed base as the old shed won't survive the move but again. ..should he contribute to my new shed?
Would be so grateful to get advice as his solicitor has said it's all down to me to pay for which doesn't seem fair as I'm willingly giving up part of the garden I've owned for 12 years.
Help please! Trying to sort amicably without expensive solicitor fees. Thanks Vicki



Your neighbour and solicitor are both wrong - 'you saw what you bought and bought what you saw', applies equally to both of you. If your neighbour thought there were any errors or omissions in the property he was buying, he should have addressed these with the vendor prior to purchase, it's now too late for any perceived discrepancies.
arborlad

smile...it confuses people

jdfi
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Re: Who pays for new fence if I'm giving back land?

Post by jdfi » Sun May 27, 2018 11:32 am

You can win this and keep the land provided you haven't already said anything stupid.

Morgan Sweet
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Re: Who pays for new fence if I'm giving back land?

Post by Morgan Sweet » Mon May 28, 2018 8:13 pm

You need to refer your case to a solicitor for your legal position to be clarified. Have you any free legal advise with a trade union, house insurance etc?

In my opinion (no legal qualifications whatsoever but practical experience in boundary disputes) the sentiment that you saw what you bought and bought what you saw is no defence if you are encroaching onto someone else's property. You also have no chance of gaining adverse possession as you have been made aware that you are encroaching. It is your responsibility to ensure that your fence is on your side of the legal boundary, however unless a covenant exists that makes you maintain the fence you need not replace the fence but just remove the encroaching element of it. (It all depends on how the covenant is worded as to your position.) If the fence is your responsibility to maintain then the fact that your neighbour has offered to help you with the expense is positive in that he is willing to negotiate. You should check your legal position and accept any negotiation/agreement and keep away from a law court.

arborlad
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Re: Who pays for new fence if I'm giving back land?

Post by arborlad » Mon May 28, 2018 10:37 pm

Morgan Sweet wrote:
Mon May 28, 2018 8:13 pm
............ the sentiment that you saw what you bought and bought what you saw..............


If the adjoining landowner raised no objections when the fence was erected and the current landowner purchased with it in that location - then it's a sentiment I stand by.
arborlad

smile...it confuses people

Morgan Sweet
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Re: Who pays for new fence if I'm giving back land?

Post by Morgan Sweet » Tue May 29, 2018 5:25 am

In that case aborland there would have to have been a boundary agreement at the time preferably (possibly now legally) in writing. This agreement about the boundary would then have to be disclosed to the new purchaser. My experience was that you buy what is shown on the legal title plan unless there is a formal agreement otherwise.
You can not just give land away without an official transfer registered with the Land Registry but you can agree a boundary line with a neighbour and this must be disclosed to any new purchaser.

arborlad
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Re: Who pays for new fence if I'm giving back land?

Post by arborlad » Tue May 29, 2018 7:15 am

Morgan Sweet wrote:
Tue May 29, 2018 5:25 am
............title plan ..........


That is not the purpose of the tile plan - it is intended to show which property you bought - not where on that property your boundary lies.
arborlad

smile...it confuses people

Morgan Sweet
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Re: Who pays for new fence if I'm giving back land?

Post by Morgan Sweet » Tue May 29, 2018 4:48 pm

My experience of boundary disputes regarding registered land with title deeds showing clearly where a boundary exists is that I do not think that you are legally correct in your assumption. If you can produce legal evidence to support your assumption that you buy what you see etc. with no regard to the Title Plan, I would be very interested.

arborlad
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Re: Who pays for new fence if I'm giving back land?

Post by arborlad » Tue May 29, 2018 5:32 pm

Morgan Sweet wrote:
Tue May 29, 2018 4:48 pm
My experience of boundary disputes regarding registered land with title deeds showing clearly where a boundary exists is that I do not think that you are legally correct in your assumption. If you can produce legal evidence to support your assumption that you buy what you see etc. with no regard to the Title Plan, I would be very interested.

We've been here before: https://www.gardenlaw.co.uk/phpBB2/view ... 2&start=15
arborlad

smile...it confuses people

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