Neighbour has replaced our boundary fence

[magicroundabouts]

Could really do with some advice and I hope someone can help.

Basically our neighbour informed us they were replacing the boundary fence between our properties assuming it was theirs as it runs to the left of their property. We were happy enough for them to do this and agreed verbally. They didn't mention any change to fence height, but found out when it was being constructed that they were installing a 6ft fence, which we didn't want. We wanted a like for like replacement, but ok it is their fence and they are entitled to do this. However, before going round for a chat checked title deeds & it is not their fence it is ours.

Had a chat with neighbour and fence has been finished to our spec (well as much as possible) and we have offered to pay for it. Neighbour hasn't come back with costs yet and I think they may not want us to pay.

So my questions are: if we don't pay / they refuse to accept payment is maintenance/ownership of fence still ours? Can we force them to accept payment?

I feel we need to put something in writing to clear this all up, but not sure what to say. Really annoyed with myself, as this is something I would normally check & I didn't 😡

[MrsSteptoe]

Lurking on your thread, OP, as we're about to buy a house with garden and associated fences, and I shall be interested to see replies!

[Collaborate]

Just write to them (keep a copy) thanking them for replacing your fence for you.

[magicroundabouts]

The thing is though if we just say thank you for the new fence, they still own it. We lose the right to paint fence, add trellis etc as they own it even though it sits on our boundary/land. Want to avoid this if possible.

[magicroundabouts]

I suppose what I am asking is can we say we are not willing for them to pay to replace our fence? Would they legally have to accept our position?

[wowfudge]

This is a prime example why no one should ever make assumptions about who owns boundary structures. What is on the other boundary OP? Could you pay to replace that for them and call it quits. It's their own fault, but I would have said, 'we need to check whose fence it is before you do anything'.

Is the fence totally on your side of the boundary or does it run along the boundary?

The pp who said to write and thank them for replacing your fence is right - what else can you do if you can't find another way of resolving things?

[wowfudge]

OP - the point you are missing is that they removed your original fence. Yes there was a misunderstanding, but they didn't have the right to take your original fence.

[magicroundabouts]

It is a boundary between our gardens and there is nothing to replace their side as far as I am aware (plants etc). The new fence has been erected in the same position as the original. The fence they took down was the original from when the houses were built. There is a covenant in our Title Deeds that states we are responsible for its maintenance. "T" marks on the plan also indicate that the boundary is ours. I am assuming the boundary line therefore runs on their side of the fence and the fence itself is located on our land.

[wowfudge]

Please don't assume anything! If the houses are more modern and the plans reasonably up to date it might be reasonably easy to see where the boundary line is in relation to the buildings. They won't gain ownership by doing what they've done - it's very nice of them as they have made a mistake, but do offer them the money for the new fence. I was going to suggest you pay for a new fence on the other side to even things up, but if there isn't one to replace you can't.

If they refuse your offer to pay that's their look out.

[NNalreadyinuse]

I cant really see the problem. The fence is in exactly the same place, so they are not encroaching upon your land. It was a mistake, but you get a nice new fence. If you want to grow plants up it, go ahead. They can hardly complain if you have offered to pay for the fence.

[KaraokeQueenOfTheNorth]

It's your fence. Even if they don't take money, legally it is your fence. They took your original fence away, so the new fence is a replacement of that - it is the right thing morally for you to give them money, but legally they replaced YOUR fence so it belongs to you. Like a gift :) you can paint it, move it, take it down, whatever you like. It is their fault for not checking it was their boundary.

Enjoy your new fence!

[LandRegRep1862]

These types of things can occur and it is important to consider a few points before taking any action etc
Responsibility for a fence/wall/boundary is quite separate from ownership of the materials used for example
A legal boundary is in essence an invisible line - in most cases a physical feature such as a fence/hedge/wall will be put up to denote that line but these things can be moved/changed as in this case but the legal boundary does not just move with them
There is no left/right legal assumption

So the key things to consider are that deciding what goes where and how is a matter for neighbours to discuss and agree upon. Information to take into account includes your own knowledge of how the fence has been erected/maintained/moved, what your seller told you when you bought and any details contained in the deeds/registered title - the same applies to your neighbor as well of course.

We maintain the registered details and in most cases the title will not refer to the covenants you mention and 'T' marks. Where they do this can help you to understand how the responsibility for the fences was arranged at the time of that deed and between the parties as named.

However such a covenant is unlikely to be legally binding if the properties have changed hands a few times since. They can be if on each and every sale/purchase the new owner agrees to observe it but that rarely happens.

So add all of the above into the mix, share understanding with the neighbor and agree a way forward. If you want to formalize the agreement then you can but remember 'our fence' may only apply if you bought the materials and had it erected.

Such things can often be resolved although you tend to only read or hear about those that lead to a disagreement or dispute - such disagreements/disputes should always be avoided as at some stage you or your neighbor may wish to move on and such matters can be an issue for buyers of course.

[Collaborate]

The key question is: who owned the original fence?

OP clearly states that they own it. LandRegRep correctly states that the covenant (promise) given by the first owner of the property will not bind subsequent owners (that's a positive covenant, and they do not survive the first sale of the property).

So, imagine the neighbour replaced OP's garage door. They wouldn't then own the door. The new door will still belong to OP, whatever state it was in before it was replaced.

The same applies to the fence. It's important though to have a record in writing of the fact that the fence belongs to you, OP, in case of any future disputes.

[magicroundabouts]

Thanks so much for all the replies. It has really helped clarify the situation.

I checked our documents and the positive covenant to maintain the fence was included in the Title Deeds transfer for the previous owner. When we bought our home our solicitor confirmed that there had been no breach of any covenants affecting the property.

I spoke with our neighbour this afternoon and we came to an agreement. We will pay for the fence and retain ownership, responsibilities for repair etc. Glad it is all agreed and everything will be put in writing. Still can't believe we didn't discuss this properly before work commenced. Ah, well at least we achieved the outcome we wanted, but lesson definitely learnt