Fences- where do you draw the line?
Next up in our series of neighbour themed articles we discuss all things fences, from ownership to maintenance. This article will run through some common issues that arise when it comes to boundary fences.
The first and perhaps most important issue is ownership. Who owns the dividing fence? The legal answer is simple. The fence belongs to the person who bought it and installed it or their successors in the title if the property has since been sold. If the fence is very old, then determining this question can be difficult. There are some legal presumptions that might help resolve this question if the position is not clear and you should take further advice if this is an issue for you.
The next issue is the question of maintenance. There may be a ‘T’ marked on the title plan to indicate who is responsible for the maintenance of a boundary fence or other feature or alternatively, if there is a ‘T’ marked on both sides of a boundary this suggests both you and your neighbour are jointly responsible for the maintenance of a fence or other boundary feature. The question would then arise as to whether anyone has assumed responsibility for the fence’s maintenance by an act such as placing the fence in position or maintaining it. If one party has assumed responsibility, they will remain legally responsible for the fence’s maintenance. Similarly, it is possible for a party to become legally responsible for a fence that the title deeds show as the responsibility of the other party through their actions.
It is a common misconception that the way a fence is constructed indicates ownership. Just because a fence is constructed in a person’s garden, this does not necessarily mean they own the fence. Furthermore, many people believe a property owner owns the boundary on the left-hand side of their property (as you look from the street). Once more, this is not necessarily the case.
Generally, you do not have any rights in relation to a fence that is the property of your neighbour. Therefore, you should not do anything to your side of the fence such as painting it or attaching nails to it, without your neighbours’ permission. Doing so could well amount to criminal damage and expose you to the risk of a civil claim. As a general rule, if you have any uncertainty as to the ownership of fences, you should discuss any maintenance work with your neighbours prior to carrying it out.
Finally, it is unusual for title deeds to contain a provision requiring the owner of a boundary to maintain it. If there is no such provision, as is usually the case, the owner of the boundary has no legal obligation to keep it in good repair. However, if a fence or other boundary feature becomes dangerous then that may constitute a nuisance and the owner can be compelled to make it safe. Similarly, the owner may be liable for any damage caused by a boundary falling into disrepair.