How can I tell who owns the fence on each side?

[hamandpease]

Hi everyone

I understand that the property which owns a fence (rather than responsibility if a border) is whoever has bought that fence. Or whoever now owns the property where a previous owner has bought the fence.

The fence I'm wondering about has been up a long time before we owned the house though (and I suspect before our neighbours did too).

I'd like to try and avoid asking the neighbours and they're going to be resistant to me changing it (or putting up another next it if it turns out we don't own) and are generally rather difficult people.

(So as not to drip feed they've lived here for years and years during which time our house was owned by a BTL landlord and it seems they've been used to bossing previous occupants around re the garden. Finding one of them in my garden moving stuff around and chopping stuff down recently has seriously annoyed me, things are falsely cordial from my side and I'm trying to keep it that way despite the crazy over stepping the mark behaviour.....)

Thanks

@Foxmuffin
Positive covenants are enforceable provided you have an indemnity in each subsequent transfer binding successors and that chain of indemnity remains unbroken

I've read the article in the link you gave and this extract

. "In respect of covenants, for them to be enforceable, both the benefit and burden must run in common law or both must run in equity. So if the benefit runs in common law but the burden only runs in equity (or vice versa) the covenant will not be enforceable.

"In order for the benefit of a covenant to pass at common law, four requirements must be satisfied

1. The covenant must “touch and concern” the land of the covenantee. This means that the covenant must be capable of benefiting any owner of the land and not just be a personal benefit to the current owner.

1. The covenantee must own the legal estate in the land to be benefited when the covenant is made. In other words, the original covenantee must have actually owned the land that benefits when the covenant was made – if for example he had only contracted to buy the land then it will not be enforceable. Usually new covenants are contained in the same deed that transfers ownership to the covenantee which deals with this condition.

1. The successor of the covenantee must have a legal estate. This just means that a future owner looking to take the benefit of a covenant must be the legal owner of the land which benefits.

4.The original parties must have intended that the covenant should run with the covenantee’s land. Not all covenants are intended to benefit future owners, some are purely personal. The intentions of the parties can usually be ascertained from the words used to create a covenant, for example words such as “the covenantor covenants with the covenantee his successors in title and those deriving title under him” confirm that it is intended that the benefit should run. Section 78(1) of the Law of Property Act 1925 implies similar words into any covenant created after the act came into force on 1 Januarym1926 with the effect that it is deemed that the benefit was intended to run. So pre-1926 a covenant has to explicitly say that it is intended to benefit future owners whereas from 1926 onward this is implied unless the wording of the covenant expressly states that it should not, for example by stating that the operation of s78(1) is excluded."

seems to me to suggest that if 4 conditions apply then a positive covenant is enforceable even without a chain of indemnities .

but I've probably got the wrong end of the stick , a skill of mine !

what do you think ?

@peridito

That’s true of restrictive, but not positive covenants.

@Foxmuffin thank you !

Trust me - wrong end of stick !

So ,can I also check ( IYO ,wouldn't hold you to it ) would a covenant saying
" each purchaser is forewith to make and afterwards to maintain the boundary fences on his lot next to the road and on the sides marked T within the boundary "
be a positive covenant ?

Apologies and feel free ti ignore me if I'm dragging you back to a work situation on a sunny bank holiday .

Yes that’s a positive covenant.