Advice requested on lease/freehold neighbour issue with fence

[Cutandpaste]

I'd really appreciate some advice on a neighbour issue. We live in the upper flat of a house split into two flats. We own the freehold. We have the back half of the garden which we access via a right of way path that runs down the side of their garden. The path belongs to the downstairs neighbours.

This path has a fence separating it from the downstairs garden. The owners downstairs have removed this fence without notice or agreement so we now have to walk past their open garden to get to our section of the garden.

As the freeholders, I've looked through the lease to see if they can do this but as it is actually their land is there anything we can do? It's massively affected our privacy, we have their children constantly running into our garden, they often have friends round so have to walk past their social gatherings.

We have asked them to reinstate the fence because of the privacy issue but they are being very difficult about it. We are not friends so the whole situation is quite stressful.

I have a few screengrabs from their lease and I'd like to check if they are applicable here?

some screengrabs from their lease

another screengrab

Is your section of the garden and their separated by a fence still?

I do have a land law person to speak to about this but they've just gone on holiday and as this is causing quite a lot of stress I'd like to try and resolve as soon as possible. TIA.

Hi Praying, yes the two gardens are still separated.

Can't you just put a fence and gate on your property so they can't get on? I don't really understand why not having the path fenced in means you have no privacy in your half of the garden.

If your garden is fenced off how are their children running into your garden? Are the parents allowing them to let themselves in?

Yes the parents are letting the children in. There is a gate there but I've seen the parents actually take their children to our garden and leave them there. I have spoken to them about this but they are not the easiest to get on with and I think they still do it when we aren't here. We would never go into their garden without their permission.

When we moved in 6 years ago there was a five foot fence along the path. They have recently removed this with no discussion and I use my garden a lot, so I'm passing their garden maybe 10/20 times a day, past people who are very difficult to get on with. It makes me feel uncomfortable and it means I sometimes don't go to my garden if they have a load of people in there.

My question really is whether the screengrabs of the lease are applicable in this instance, not whether I should be upset or not.

Wow that's really rude!!!

I would get a padlock and lock your gate!

I don't know the answer, but someone else might. Anyway it seems to me that the "right of way" path to OP's section of the garden was fenced, now other neighbour has removed it, so OP and family must walk through neighbours wide open garden to access hers.

Surely that is more of an issue for neighbour than you? How could they enjoy you and family traipsing alongside their now open garden? I just don't get it. Unless it is some sort of bullying issue.

I would re instate the fence and let THEM take action and do all the legwork. Owning the freehold gives you rights over the property surely as the Landlord, and your first screengrab says that actually.

But before you do anything, get a gate and lock on the fence separating both gardens.

Sorry am just thinking out loud here as things come into my head.

Do they definitely own the path? If so then you probably have no rights over the fence on their land, they can remove it if they want. Your only right is likely to be a right of access. You do have the right to lock your garden gate though - put a padlock on it.

Yes I've been thinking about a higher gate and padlock but it does make me a bit sad I have to lock my garden!

They honestly don't care that we are walking past constantly and I do think there is an element of them sort of staking their claim. They ignore us as we walk past and then all their guest are a bit wtf, as are we! They are the WORST

Here are some examples:
They have two cars on a street where there is very little on-road parking for those who don't have a driveway. They have a driveway (of course they do!). When they go on holiday they leave their second car on the road and the driveway empty.

They once called up a company that we were getting flooring from, described our flat perfectly and tried to get info from the company about what flooring we were getting. We know this because the company immediately called me and said they had just spoken to someone who had described our flat and it was impossible for them to have two orders that matched so precisely.

We had a leak during some building work. Instead of contacting us or knocking on the door to alert the builders they waited until the builders went out for lunch and then the wife went into our flat and started taking photos. Unfortunately for her there was still one builder in the flat who asked what she was doing.

I once heard their nanny screaming at their children, I mean it was awful. I called the mum and told her and instead of sorting it out with the nanny or nanny agency they set up a spy camera, then made up an excuse and fired her.

They are sneaky and untrustworthy. I really really hope we can make them put the fence back up.

Does the garden, which they own, count as a common area though?They own it and you only have a right of way (easement?) over the path. Who owns the main entrance and hallway for example, or the front garden/path?

I'm sure one of the legal people who know what they're talking about will pop up eventually!

They own all of the ground floor apart from our garden. In the lease the right of way areas are called Common Parts and they are not allowed to make any changes to the Common Parts. I suppose my question is whether the fence is part of the Common Parts?

If it isn’t, can we as the Landlord settle this dispute by saying they need to reinstate the fence?

I think the info is there in the lease, I’m not sure exactly what the Legal terminology means.

I haven’t read all the replies but the screen grabs aren’t relevant to the issue. It’s not a “common part” - which are parts for use by everyone.

Is there anything that talks about boundaries?

Monkeytrap - just going through the lease again.

Would the screengrab about the landlord settling disputes be relevant?

That’s only relevant if the lease is silent on the issue of fencing/boundaries etc. They will usually include the obligation to erect and maintain a fence so that the fences etc don’t fall into disrepair and become unsightly.

I can't find anything about the boundaries, just something that says they need to maintain the boundaries marked 't' but I don't have the plan to see what 't' is - is there a way to get hold of the plan?

There are a couple of mentions of the Flat but I'm assuming that means the actual building rather than the garden as well?

I think the fence marked 't' is likely to be the main fence with the neighbours rather than on their own land as that must be standard on a lease?

When I asked them about reinstating the fence they told me to check the lease. Could I now go back to them and say there isn't any provision in the lease but there is the section about the landlord settling disputes? We are only asking them to reinstate the fence to the original height and not make any extra changes. Is this a reasonable request?

From what you've said you don't own the access path or the land the path is on, so if they don't want a fence then that's up to them. The issue you need to address is them or their guests accessing your garden without permission. As they are ignoring your requests then I would consider having a solicitor draw up a letter to send asking them to desist from accessing your garden.

@hardassnails Doesn't the freeholder own the building and land? We have the freehold to the whole building which is why I was asking whether the section about the freeholder settling disputes was relevant.

is there a way to get hold of the plan?

I think you can download them from the Land Registry website for a small fee.

Maintaining a boundary doesn't mean they have to have a fence though.

Maybe ask on garden law forum lots of knowledgeable people there.

Need to post a few times before you can upload pictures.

@collaborate is really good too with advice