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The wind has blown the fence down!

In the two week count down to Christmas a surprising number of people choose to move house. Every year we do all we can to make this happen. Some factors, however, are beyond our control, the weather being one of them. Last year we had snow and freezing conditions to contend with. This week the forecast is worrying with high winds forecast. Having seen the pictures from Scotland we can only hope conditions will not be as severe.

After high winds we usually have a flurry of telephone calls from clients asking, who owns the fences at their property, who is responsible for putting them back up or replacing them, and can we please check their ‘deeds’ for the answer? This may seem simple enough, but the answer is in fact rarely straight forward.

Anyone when they buy a property will usually receive from us a copy of the Land Registry title, any documents referred to in the title, the Land Registry title plan, and a property information form completed by the seller. The title may contain information as to boundary ownership, but commonly it does not. The seller, in the property information form, may indicate which boundaries they think they may own or have maintained or may reply ‘unknown’.

There is a distinction anyway between ‘boundaries’ and ‘boundary features’. The Land Registry title plan will show the property extent edged with a red line. It is only to a small scale and will not show boundary features such as fences and walls. The red line on the title plan shows only the general position of the boundary, and is not exact. You could not, for example, by increasing the scale of the plan, demonstrate where the actual boundary is. So the Land Registry title plan will not help.

The title does not have to contain boundary information, and in many cases there will be nothing at all. If this is to be found it is most commonly where property has been sold by developers. Usually then the developers plan will use ‘T’ markings which indicate that the boundary with the ‘T’ marking faced inwardly belongs to that property. This would usually be combined with an obligation to maintain that boundary. Otherwise a declaration may be contained to say that certain boundaries are considered to be owned jointly between neighbours.

So, we may be able to advise that the title contains a deed which refers to a plan with ‘T’ markings on it. Is that then enough? It may be, but not necessarily, for even if the deed contains an obligation, in strict law the obligation does not bind anyone except the original first buyer. So if you think it’s down to your neighbour to replace or repair the fence as it should be theirs, in practice there may be nothing you can do to make them take any action.

Also the position may have changed over time. Owners and new owners and their neighbours may not have continued to follow the position set out in the title when the property was first sold. They may not have even thought about what the ‘deeds’ may say, or may have just reached their own agreement. So, if a fence was erected and owned by No1 Jones Avenue but the fence blew down or fell into disrepair and the two adjoining owners got together and agreed to share the cost of a new fence, regardless as to what is in the title, that fence would be theirs jointly. Or if the owner of No1 Jones Avenue refuses to do anything or pay for anything and the adjoining owner put up a new fence (for a quiet life), then this fence clearly belongs to them.

Sometimes the exact boundary position can be obscured by owners, for example, by adding in other features such as a hedge on one side of an original fence, or putting up another fence on their side of the original one.

Apart from the title, then what about the sellers property information form? Can this help? The sellers’ replies may well be a good source of information. The question in the form however is quite broad and without any further detailed written information may be unclear, or it may be that the seller has unintentionally given incorrect information anyway.

So the answer is to always check the title, and also any information provided by the original seller, but not to be surprised if this is still inconclusive. Ultimately, it is a good idea to consult/negotiate with the neighbours affected and agree an outcome.

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