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?

You should be able to get a copy of their plan from the land registry. It costs £3

Looking at it from their point of view (and playing devil's advocate!) the path is part of their garden which they own and you want them to fence it in so they can't use it. You also plan on using your position as landlord to "resolve disputes" which in practice means "make them do what you want".

The removal of this fence hasn't affected your privacy, your own lack of a gate/fence preventing access to your garden has.

If you look at it from both sides, it's a tricky one!

Cut you've said the path is in their garden which belongs to them, you only have right of way, which would usually mean, unless the deeds say otherwise, that they can do what they like as long as your access isn't restricted. I think you are focusing on the wrong thing here. The only problem you've described is them letting people into your garden.

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.

How the hell are they getting into your flat?! It sounds like the garden is the least of your problems here.....

Why not just send a letter stating they are continually trespassing onto your property and they must stop doing so. If they continue to do so you will have to consider legal action under private nuisance and or breach of their obligations under the lease and they will be responsible for any legal costs incurred. The next time they go into your garden stand there and take photos. It is your property and if you own the freehold you have the right and obligation to enforce the terms of the lease. And, just because they don't speak to you, you can and should say morning, evening etc. Be better than them

Looking at the lease, it is very clear the leaseholder may not make any alterations. The estate is as it says, all including the landscaped areas, garden and fences. They must remedy their breach. I.e. reinstate the fence.

They must remedy their breach. I.e. reinstate the fence.

That depends on whether erecting the fence was already a breach.

@SoupDragon no I don't think that's right. The fence was there and when you take on a property you take it on as it is because there is no way of knowing whether the fence was put up with or without permission by previous freeholders or leaseholders as there is often a lack of detail in the paperwork. Op has made no mention of the l/holder breaching the contract by putting up a fence. I believe once the fence is in situ the l/holder would need permission to remove the fence even if they put the fence up themselves, because that is what the lease says is their contractual obligation.

But was the fence originally there when the house was split and the lease written? Maybe the OP wasn't the owner then.

The leasehold plan should be within the lease? That will show who owns what.

@SoupDragon it doesn't matter. If the fence was there before current freeholder and or leaseholder the lease still says permission is required for alterations, if the current leaseholder put it up with permission, they still require the freeholders permission to remove it.

What if they put it up without permission?

According to Op they didn't.

The previous owner of the two flats rented them both out. The neighbours used to rent their flat, they bought it about 10 years ago. We moved in 7 years ago when we bought the upper flat.

The fence was already there when we moved in so put up either by the neighbours or the original owner, I don’t know.

They suddenly decided to take it down with no discussion with us which would have been neighbourly at the very least. This is why I’m asking whether freeholder can settle this dispute between the two flats?

The path down the side is maintained by us, we paid for it to be paved (with their permission) as it was just a mud track. It doesn’t add any extra space to their garden as it has to be kept clear.

The plan shows the common areas only and doesn’t show the fence but this is on our lease. We don’t seem to have the plans for their lease so I’ll get them from the land registry.

You won’t have the plan for their lease, that will be within their lease. The LR plan will likely only show the redline boundary for your property, the lease plan will show the finer detail.

I agree with soupdragon, it sounds like you have right of access and it doesn’t sound like they’re stopping that.

You'll need a full copy of their lease to get the plan.
Does the boundary fall within the blue Estate line or is it definitely a Common Part?

@minniemountain the boundary falls within the common parts, it’s not the estate line.

Will try to get the full plans, we didn’t realise we don’t have them until now as we’ve not had to look at them before. All the paperwork we have at the moment was supplied by the solicitors when we bought our property so assumed it was complete.

You have all the paperwork for your property, you’ll have had the land reg plans at the beginning of your purchase - these don’t change. It isn’t normal practice to supply neighbouring properties plans.

@monkeytrap we hold the freehold to the whole building so our flat and their flat. This is why we have a copy of their lease.

What does the description of their flat say in their lease? Does it include the fences/boundaries?
It's tricky to advise without seeing the whole of their lease.
IF they shouldn't have done it, you can use your power as the landlord of their flat to tell them to correct it.