Can I fence my front garden, deeds say no, but my heat says yes!!

[pipsy76]

Hoping to pick your legal brains as the garden law website is too tricky for me and I can understand the language of mumsnetters!

Basically I have a sunny large front garden and a small dark back garden around my 1960s detached bungalow in a close. I would like to put some fencing around my front garden to stop my kids and dogs running into the road so it can be a nice useable area.

My deeds state I can not hedge or fence the boundary of the front garden but I was wondering if I could fence 1 meter inwards of the boundary, as I don't need to fence the full area anyway?

I would like 4ft picket fencing but I have read on-line no more than 1m high if near public highway, again if it's 1m inwards from our boundary and there is a footpath between our garden and the road of our cul-de-sac could this be ok?

Many Thanks!!

[YesMaam]

What do other properties in the area have? Is anyone likely to complain if you do fence it in?

I expect you have a restrictive covenant preventing the erection of fence/hedging, need to keep it open etc. for the benefit of the neighbours on the estate and whilst these can be enforced by others who benefit (neighbours etc) if the character of the area has changed such that there really isn't any need/point in enforcing you may be able to break it with no consequence. So if other neighbours have hedges/fences etc you may be ok.

As for heights near highways - yes, max is 1m adjacent to highway/footpath/pavement etc, unless you apply for planning permission for a higher fence.
1m from the boundary it can be up to 2ms high.

HTH

[pipsy76]

HI thanks for the reply, one neighbour has a high hedge. Other front gardens mostly lawn and there are certainly some who are likely to complain just because they can! Only boundary fencing is specifically mentioned on deeds so I don't know if in from the boundary would be ok. Also someone said the covenant only applies to the original people affected by the agreement in the 60's. I guess I might need to see a property solicitor?

[BackforGood]

Some estates have restricted covenant - strict rules on what you can / can't do in order to preserve the 'ambiance' of the whole area. Seemingly petty and annoying if there's one restricting what you want to do, but near here the area of land like that is a much sort after area and houses sell for a big premium over those that aren't on it.
So, the one near us has rules stating you can't have walls / boundaries / fences / hedges at the front of your house, and it is very strictly enforced.
Difficult to know about where you live - have a look up and down the street to see what anyone else has done, but I'd read that as 'no walls / fences / hedges in the front garden rather than specifically along the boundary. I suspect that word is there as they didn't think anyone would want to put a fence half way down their garden.

[YesMaam]

Unless worded particularly unusually the covenant will bind all owners of the land (the original purchasers and their predecessessors in title).

Also the purpose of the covenant is probably to give the estate a light and airy feel without significant boundaries between properties, so simply moving a fence/wall/hedge 1m+ awa from the boundary may not work.

Can you type out exactly what the covenant says?

[sneezecakesmum]

We all had a covenant that lasted so many years. Everyone ignored it anyway and no one complained as our neighbours are generally nice.

I always wondered if someone objected who would enforce it. Certainly not the builders..... civil court??

[BackforGood]

The leaseholders, surely ?

[Collaborate]

The neighbours will have the benefit of the covenants in most instances.

[Iwantcandy]

Depending on the circumstances the neighbours or management company (if applicable) could enforce it through the civil courts. If that happened you could simply take down the fence

Without seeing the precise wording of the deed it us impossible to say whether a court would require you to remove s fence or hedge from within your property ie not on the boundary. However i would worry that unless your boundary is set out very clearly in your title deeds that over time people would treat your fence as the boundary to your property and you could effectively lose part of your land

[SaveTheEmpire]

I don't know enough to advise you but my parents were no longer bound by some covenants on their property after they bought the freehold. Is this an option? Maybe someone more knowledgable then me can advise if this would help.

[Collaborate]

You could always plant shrubs on the boundary. That will act in the same way as a hedge, but not actually be a hedge, IYSWIM.

[sneezecakesmum]

I think savetheempire's answer is what applies to us as we own the freehold now....in fact we own the bloody house!

People over the road have a 7ft leylandii hedge facing the road, no one gives a monkeys! All the fences seem about a 1m high though. Guess we are pretty laid back here.

Would the local council planning department be able to give you some advice OP? Would a pretty flowing shrub hedge along the boundary and a small fence within the boundary work? (preventing the LOs crawling through)

[pipsy76]

Thank you all for your replies and combined knowledge, basically there are 2 retired persons within our close who will certainly point out if I have breached any regulations, they will point out anything else for that matter!! I basically want a nice smart fence to look nice for everyone but would be gutted if ive gone to that expense but then are forced to remove it.

I will stop being lazy and type out the exact wording now-

For the benefit and protection of the remainder of the vendors said estate at xxxx aforesaid and to bind as so far as pracitcable the land hereby jointly and severally covenant with the vendor that the purchasers and those deriving title under them will at all times hereafter observe and perform the stipulations contained in the first schedule hereto but so the purchasers shall not be liable for any breach of covenant after they shall have parted with all interest in the land hereby conveyed-

This document is from 1967 I take it it still applies and means that we as future purchasers are bound? I take it the neighbours are the beneficaries here

The purchasers shall not permit any fences or hedge to be erected or remain on any of the boundaries of the land lying between the said dwellinghouse and the footpath-

Can I twist the wording here it does specifically state ON the boundary? Is my fence inside OK?

1. The vendor reserves the right to release or vary at anytime any of the aforesaid stipulations so that nothing shall operate to impose any restictions on the manner in which the vendor or its successors in title may deal with the whole or any part of the said estate-
   

Does this mean it could have changed or expired? It's all so confusing!

[Collaborate]

Looks clear enough to me. you can't site a fence on the boundary, but you can if it's off the boundary.

[pipsy76]

Thanks collaborate, that was the answer I was hoping for!!

[sneezecakesmum]

'at all times hereafter' seems to be the clincher as to whether there is a time limit.

Presumably the boundary is little more than a few inches in width, would a fence 10cm inwards be OK then? Perhaps with a few flowers on the actual boundary to placate the neighbours? Good luck anyway - white picket fence sounds lovely.

[Iwantcandy]

You might have neighbours who moan and complain but would they want to go to the expense of taking you to court? Is your property on an estate with a management company, residents association or similar type of organisation who might sue you? If not I think in practical terms the risk of you being sued is minimal

Also do you live in a conservation area? If so you might need planning permission

I'm sorry but I disagree with collaborate's interpretation of the covenant. On a strictly literal interpretation the covenant restricts you from building on the boundary. However courts nowadays often take a purposive approach where they look at the purpose of the restriction and say well the purpose is to prevent people fencing in their front gardens so you can't just build a fence in from the boundary a little. It's not easy to predict which approach a court would take, therefore I think you need to look in practical terms what is actually the risk of anyone suing you

[Lexilicious]

Sorry but I think "on any of the boundaries of the land lying between the said dwellinghouse and the footpath" means no fence anywhere between your house and the path. You might find if it's a scorcher of a summer that a cool shady back yard is actually better!

[Collaborate]

The middle of the garden is not the boundary. I am only a divorce/family solicitor, so take what I say with a pinch of salt. I can see the sense in what Iwantcandy posts.

[mistlethrush]

On a front garden, or certainly in front of the front wall of the house - I wouldn't be advocating a boundary of more than a metre high which is what you would have permitted development rights for. I've had a client who had to take down a brick wall and reposition it in a similar sort of circumstance.

[BackforGood]

Where I used to live, it was a purpose built estate, managed by a trust. You would certainly not be allowed to interpret it like that, as the covanent was there, to maintain the 'open feel' of the estate wherever you wandered, and the trustees would deal with it, you wouldn't need an individual to want to take you to court. People paid quite a premium to live on the Trust land, and as such, maintaining the "ambience" was important, and strictly enforced.

I'm glad about what IwantCandy says, that the courts do sometimes use common sense and uphold what was intended, and not allow people to get round things by twisitng words.

[pipsy76]

Thanks for the further thoughts, there is no management company, the 2 residents who are likely to complain are on the community council so there is a chance they would take it further (however one has a caravan on her drive which is also not allowed under the deeds!)

[pipsy76]

I have sent a photo of our front garden to the planning department of the local council to get their opinion too

[Sneezecakesmama]

Our next door neighbour put up a cheap and flimsy fence initially and when no one objected under the terms of the covenant he replaced it with a nicer fence!

I can see what people are saying about the letter of the law and the spirit of the law, but I can also sympathise with needing a good sized sunny garden for children to play safely in. If you did decide to go ahead and the person with the caravan objected I would reciprocate! Vey difficult situation though :-(

[KayeKaye]

Hello, need some help regarding a front fence. I live at the bottom of a cul-de-sac, my house is the last property and has a large side garden, there was a six foot fence in place to add privacy but the kids on the cul-de-sac used it as goal to play football causing damage to the fence so I pulled down the fence and replaced with shurbs. Its been a number of years and I would like to build a similar fence as I would like to regain the privacy the old fence provided. Do I need to get planning permission for this? Some of the websites are confusing. Any help would be greatly appreciated. Thanks

[Lucysky2017]

I am afraid I am a lawyer going with the purposive effect too. Sticking it a bit in from the edge is sticking two fingers up to the terms and I doubt a court would like that. We have this issue a lot where I live for slightly different reasons - our conservation area rules (planning law) say no gates or fences anywhere (not just on the edge) without prior planning permission (a slightly diferent point but a similar aim to make it remain an estate of houses with open fronts. Now just about no one moving here wants an open front as they have small chidlren who might run on to the road or want naked sex parties in their garden or just don't want people looking in . I have the most over looked garden of all. People do stand and stare in when I am in my garden.
The Council allow only an open style of gate here like a farm gate not the private closed ones people want.

(KayeKaye on your point assuming you have checked the deeds and it says nothing and you are not in a conservation area (ours has an article 4 i think it is called "direction"), then if you are just putting back a fence that was there before and as long as you are on the same boundary line and it is not above a certain height you should be fine. I think it is very high fences which can be an issue but I am not a property lawyer. My sister who has awful neighbours put up some fairly large lovely almost mature trees which have helped and also a trellis on top of one fence. It has still not fully solved the issue but has helped but even there if trees grow too high (I am always worried about my leylandii hedge at the back being too tall) then it can be illegal too.