"There is a dilapidated fence between my garden and my neighbour’s garden. How do I find out who owns the fence, and who is responsible for repairing it?"
As a general rule, fences will be owned by the person who installed the fence. There is also a general common law presumption that, if the fence panels face away from you, then the fence is yours. It is, however, important to note that this can be contested and disproved with evidence to the contrary.
When it comes to fences, the historical background of the land and property will need to be considered. A good starting point will be to check the deeds, Official Copy of Register of Title and the Title Plans for your property. You may already have copies of these documents from when you purchased the property. If not, you can check online with HM Land Registry (“HMLR”) and you may be able to download electronic copies. A quick search on this link will give you some summary information about your property and your neighbour’s property. If documents are available, you will be redirected to HMLR’s website to download them.
The Official Copy of Register of Title for the property might refer to fence responsibilities and reference markings on the Title Plan. Quite often, title plans will be marked with a ‘T’ to indicate ownership of a boundary feature, such as a fence. If there is a ‘T’ marked, then the top of the T will be pointing toward the owner. An example clause found in an Official Copy of Register of Title is as follows:
‘The Purchaser shall, within three months from the date thereof, erect and forever thereafter maintain an open pale boundary fence not less than four feet nor exceeding six feet in height enclosing the said land on the South side thereof, marked “T” on the said plan.’
It is important to remember that there may have been changes on the land or replacements of features, so this is not always determinative - but it is a good starting point.
Whilst investigating further, or if the documents for the property are not marked or make no reference to the fences, it can be helpful to check other documents you received when you purchased your property. Speak to your conveyancing solicitor to review your conveyancing file.
In particular, the Law Society Property Information Form, which would have been completed by the seller when you bought your property, could be useful. There is a section on boundaries which asks the seller to set out who owns or accepts responsibility to maintain and repair the boundary features. This can give you a key insight into the fences around your property.
If you cannot locate this, or the answers are unhelpful for any reason, it could be useful to speak to your neighbours directly, to enquire who has responsibility for the fences on the boundaries between your properties. This may be particularly useful if your neighbours have been residing in their property longer than you and/or have lived in the property for a long period of time.
It is also important to note that you and your neighbours can come to a separate arrangement as to the repair and maintenance of fences. For example, you may wish to agree to split the costs or make a different arrangement, which suits your specific situation. Any agreement should be put in writing to avoid issues or confusion later down the line.
Neighbour encroachment - boundary dispute
"Whilst I was on holiday, my neighbour put up a new fence. The only problem is that he has come over into my garden and has taken a strip of my land about 30cm wide into his garden. What can I do about it?"
It is likely that there has been a trespass over the boundary, as your neighbour should not have encroached onto your land. It might be the case that the neighbouring owner is not aware of the encroachment. This can often be the case when contractors have been instructed to carry out work on an owner’s behalf.
In the first instance, you could raise the issue with the neighbour and attempt to resolve the matter amicably. If this does not have the desired outcome or if, for any reason, you do not feel comfortable speaking with your neighbour, a letter explaining that they have encroached onto your land and setting out your position in terms of possible resolutions could be sent. The letter should include a reasonable period of time (14 – 21 days might be appropriate, depending on the circumstances) for a response or for rectification.
If your neighbour refuses to rectify the fence placement, or does not engage at all, you may have a viable claim for trespass against the neighbour and you could consider bringing a court claim. It is important to note that boundary disputes can be costly and time consuming, and litigation with your neighbour can make things uncomfortable and awkward for some months - even after a resolution is reached.
Before jumping into a legal dispute, it is useful to consider alternative dispute resolution - in particular, mediation. This can be a quicker, cheaper and overall smoother process to resolving an issue. However, both parties need to agree to mediation.
If mediation is not a viable option and the matter remains unresolved, a trespass claim can be brought. You should also consider reviewing the Protocol for Disputes between Neighbours about the Location of their Boundary (“The Boundary Disputes Protocol”), which can be found here. This protocol has not been formally adopted into the Civil Procedure Rules. However, property lawyers and judges alike will be familiar with the protocol and are generally very welcoming of it. It sets out a timetable for matters to proceed.
Boundary disputes can be complicated and will, more often than not, require expert reports. Seeking legal advice from the outset is advisable and we can provide the help and advice you need.