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garden party fence - the painting of

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beryl hough | 21:50 Sat 04th Sep 2004 | Home & Garden
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My neighbour has replaced the original boundary fence put in by the builders with a lower panel and cement post fence between our two properties. I originally had a clematic trained up the original fence (for 15 years) which was carefully to allow the fence to be replaced. I have now put the clematic back against the fence tied onto nails with string. When I was out today my neighbour has removed each panel of fencing (6 in total) and pained them a dark brown, consequently ripping off the clematic which is now damaged and on my pathway alongside the fence. What my legal position regarding the removal of the clematis, the painting of my side of the fence against my wishes, and him entering my property to place posts which were against the fence onto my path please.

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Hello, beryl. I will deal with your question in 2 parts, firstly fencing then secondly (later on) trespass. Could you most kindly unscramble the fencing for me, please. If the plan with your Land Certificate shows a T in your neighbours garden with the head of the T against the fence, then the fence is your neighbours (always, of course, with the proviso that it is within his boundary and that it carries no obligation to actually provide and maintain a fence). However, this is in direct conflict with your statement that all fences in the deeds (Land Certificate?) are deemed to be joint. Could you post this exact wording in your Land Certificate for me to consider, please. Also, are you on an estate where all wording in the Land Certificates is likely to be the same?
The comment by Anniekon now inserted was not there when I posted the above. Because of it I have decided not to debate the matter further. Therefore please disregard my posting.
Beryl, I suggest you check your house insurance as sometimes there is legal cover which enables you to get legal advice; or if you live in the London area you could write to the Homes & Property section of the Evening Standard (every wed.), there is a weekly column in which a lawyer answers questions such as yours. You could also ask your local authority whether they have some kind of conciliation service for neighbours. What I know is the following. If it was your neighbour's fence he does have some rights, under the Party Wall Act, to enter your property to maintain and repair his property. If it was not his fence then he probably has trespassed (civil tort) and maybe even committed criminal damage (criminal offence). So yes, you should find out your rights from a lawyer. That said, you have to weigh up the pros and cons of taking or not taking any action - for ex. you might get a small amount of damages but have an unpleasant fallout with your neighbour or even lose out when you come to sell (because if you are in a dispute with your neighbour you must disclose it when you sell and then you might find nobody wants to buy your house).
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Maud, I really do thank you for your interest and here is the exact wording on the title deeds to my property, which is freehold, and is on a estate which was built 18 years ago, so all the title deeds will be the same. In the third schedule number 1 'To keep the fence and or wall on the side or sides of the property as indicated by a T (if any) on the said plan within the boundary of the property in good and substantial repair and condition it being agreed that all other fences and walls (if any) dividing the property from adjoining premises in the estate shall be deemed to be party fences and walls'. There is a T showing on the neighbours side against the fence. I realise that this area of fencing and disputes with neighbours is a minefield, and will get sucked into litigation with this particular man regarding ownership, the measuring of boundary lines etc. So I have decided to erect my own fence within my own land and loose approximately 6 inches of my garden, rather than as you say a lot of money, anxiety and stress, which I am in danger of surcoming to. I realise too that with certain types of people they have to have the controlling hand, and will bow out of this one quickly as it is obviously a personality thing also. So nice to be able to chat about these things though. Just reading through my reply I suppose the words 'within the boundary of the property' means that he considers the fence is within his own land anyway!! As always thanks to everyone for replying. Beryl
Beryl, the T shows its his fence and as long as he put the replacement fence on the same line I think it's safe to assume it is on his land. That means you were wrong to attach anything to it. He may well have wronged you but I think your course is the right one, life is too short to make any more out of it
Beryl, are those words repeated in your Land Certificate could you tell me, please? (if different please post}. Also, is the developer referred to on the Land Certificate? If so, in what context? (or post words and I will sort it out for myself). What sort of fence was there previously (6'0" timber post and panel, concrete post, close boarded, concrete panels, etc)? Did it need replacing (in your opinion)? What exactly has he replaced it with? (please describe with a bit of detail). Is it in the same place as the original, in your opinion?
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Maud, The words are the same in the Land Registry document, and the developer isn't referred to by name, just stating who owned the land and sold it in 1979 to the New Town Development corpn. As regards the original fencing the height was 6 ft, and was lapped board solid fencing with wooden support posts which in the fence in question were on his side. It has been replaced with cement and panel fencing exactly in the same position as the original fence with the height now reduced to 5 ft on my side. The fence was desparately in need of repair, and until recently he denied that it was his responsibility, and got things checked out with the Land Registry people. But please Maud I do not wish to get sucked into a legal battle with him, so have decided that I shall block him out mentally and physically with my own fence which I shall erect in my own land and to the regulation height of 6 ft. Thanks to you and everyone for their help.
OK beryl, I will not continue other than to say whatever you do do not close the ends of your new fence up to your neighbours fence. Leave the ends open, most important. I wish you well, and if you need me post a heading of Maud and your question and I will reply. 'Bye.

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