Fence/Boundary issue

[lovethyneighbor]

I've name changed for this and posting on behalf of my mum.

Several years ago people moved in to the adjoining (attached) property and replaced the original fence in the back garden. The fence had become damaged on one or two panels by a wisteria plant in my mum's garden that had been there about 10 years. The fence is 5 or 6 panels in total. So the new neighbours replaced the fence themselves with little consultation about it but all fine. The wisteria died and was not replaced. Fast forward a few years and there's now a clematis growing next to the fence that needs supporting. Mum's gardener has attached a wire support to the mum's side of the fence for the clematis. The wire support does not protrude above the top of the fence so the neighbours can't actually see it. When the gardener was doing this the neighbour came out of the house and started shouting and being aggressive about it and was deeply unpleasant. They were reassured that the plant would not damage the fence because the support would mean it doesn't grow through the fence and the gardener would be maintaining it. The neighbour kept coming out ranting and raving saying mum and me had attitudes and accusing me of blanking her in the street and slamming the door despite the reassurances. Until that day I wouldn't have known her if I had passed her in the street anyway.

The following day the neighbour stopped at the top of mum's drive and glared down it making mum feel uncomfortable.

Today mum has had a letter through the door demanding the support be taken down and saying they don't give permission for a large plant to be be grown against the fence. It's a clematis, it's not a large plant. They have claimed they tried to be reasonable and discuss the matter but the incident the other day was the first we knew of any issues and they came out of the house shouting and being aggressive in that manner.

They have threatened legal action and my mum is really upset. She's disabled and elderly and now feeling very anxious and intimidated by the neighbours.

I haven't told her but they also have one of those blink type cameras pointing into her garden. All they'll see is washing being hung out so I've no idea what they have done that for.

Any advice much appreciated.

What’s unreasonable about not wanting people to damage your property that u have paid for
Why would you let someone damage your property then have to pay for it and not say anything

the reason I put my fence on my side of the boundary it it stops any disputes and make life easier when it come to repairs and painting it it my fence my problem my responsibility zero disputes
my neighbours get the benefit of a maintained fence without any expense or responsibility

Still wrong.

What matters is where the fence was placed. Consideration needs to be goven to who owned the original fence. It was one of 3 possibilities:

1. The neighbour.
2. OP's mother.
3. It was jointly owned (because it straddled the boundary).

If there is no evidence who owned it then the default is that it was jountly owned.

Then evidence of where the new fence was built relative to the old needs to be considered.

This link may help OP.

https://www.boundary-problems.co.uk/boundary-problems/fences.html#Replacement%20fence%20leads%20to%20confusion

The link literally says:

In theory it is perfectly possible for one landowner to erect a fence upon a second landowner's land, but for ownership of the fence to remain with the first landowner. In principle, a similar situation occurs when Mr A parks his car on Mr B's land: the car remains Mr A's property.

So if I buy a fence, no matter where I put it, it’s my fence.

The OP does not suggest the fence has moved the boundary into her garden, and so I assume it is still on the boundary. Therefore in the absence of a gift of the fence, then the fence still belongs to the person who paid for it.

If it had moved the boundary, then that’s a boundary dispute and I still don’t think OP is entitled to vandalise or damage someone else’s property while that is resolved.

ETA: the link shows how you would establish ownership of the fence if the properties had since been sold, as this does add more confusion as they
might not sell the fence as part of the property sale. But while the person who paid for the fence owns the land, there isn’t any ambiguity, it’s their fence.

@TeacherPlease You need to read the whole of the link I posted, in particular the bit at the end.

The scenario you quote refers to a fence being built that does not replace an exisiting fence. Completey different to OP's situation.

Imagine you know that a fence is jointly owned. It is built stradding the boundary. It falls in to disrepair.

In the normal course of events both owbers will share the cost of a replacement. However neither can be compelled to do so.

If only one wants to replace it they can do so. If they build it hard against the old fence it stands wholly on thier land and they own it. If they build it exactly where the old fence was it remains a jointly owned fence. It's the law. this is MN Legal.

The fence is where the old one was. The original plant damaged one panel out of 6 but the neighbours decided to replace the whole lot and pay for it.

The new fence is not being vandalised fgs! It's a clematis not a fence gobbling plant demon. The plant has not damaged the new fence. A support was put in place to prevent any damage to the fence from the plant winding its way through the panels.

Other neighbours believe the boundaries are all shared and the fences shared.

Do you mean this bit?? Because it’s not relevant in the OP’s scenario.

Let us now move the scenario forward to a time when both properties have been sold. The successors in title have encountered confusion as to the exact position of the boundary, but their investigations uncover the facts of what happened when the pensioner's fence was replaced by the kindly neighbour.

The fence does not change ownership of the BOUNDARY, but the boundary is not the fence.

So in your example, the BOUNDARY remains jointly owned but the fence does not. In successive ownerships, it may indeed be jointly owned (by agreement) but not under current ownership.

There is absolutely no law that states that something I pay for becomes someone else’s property without my express consent. If I park my car on your drive, it NEVER becomes your car. This is the same logic. There is no law I can point to as I can’t prove a negative, but can you prove your point? The link you’ve shared disagrees with the point you’re making so I’m struggling to follow your legal argument.

The plant may not have damaged the new fence (yet) but the fence has been damaged by a plant support being attached to it without permission being sought or granted.

The clematis needs relocating and the plant support needs removing.

If they are as awful as you say I don't know why your mum is persisting in giving them opportunities to contact her.

If I replace your porch I don't become the owner of it. Under your analysis I would.

@TeacherPlease Lawsplaining to a lawyer on a legal board? Brave or foolhardy?

You would own the materials that built it, but not the land underneath it, and you couldn’t use the land without trespassing (as you did to build it).

In the same way if I extended my house onto your land, it’s my house still - you can’t start letting yourself in and using that part, nor can you demolish it yourself - you have to get a court involved to instruct a remedy.

https://www.standard.co.uk/homesandproperty/property-news/property-boundaries-what-can-i-do-about-a-garage-built-on-part-of-my-land-without-permission-a135891.html#:~:text=If%20it%20is%20confirmed%20that,you%20for%20any%20loss%20suffered.

A lawyer lawsplaining to a lawyer. I’m qualified to do this.

Maybe @Collaborate you’re thinking of Party Wall Act and the fence as a Party Fence Wall. Now, I’ll admit, I’ve assumed it’s a wooden fence, which is not covered by the Act.

https://www.gov.uk/government/publications/preventing-and-resolving-disputes-in-relation-to-party-walls/the-party-wall-etc-act-1996-explanatory-booklet

Please tell me what law says the fence is not the neighbours.

Me building you a porch would be a gift, as it clearly is intended to be a part of your house, unlike an encroaching extension.

Something clearly intended to replace a jointly owned structure is still a jointly owned structure.

There is the case of Burns and another v Morton [1999] 3 All ER 646

The summary says:

COURT OF APPEAL, CIVIL DIVISION
SWINTON THOMAS AND TUCKEY LJJ
27 MAY 1999
Boundary — Conveyance — Dividing wall — Conveyances providing that division or dividing wall or fence would be party wall or fence — Fence being erected on boundary line between properties — Defendant replacing fence with wall a few inches to his side of boundary line — Whether boundary demarcated by wall or old fence.
The parties were in dispute over the boundary between their properties, numbers 4 and 5. The properties had been owned by the same person until 1965 when number 5 was conveyed to the predecessor in title of the claimants. The conveyance provided that 'the division garden walls or fences (if any)' on the north and south sides of the land conveyed 'shall be party walls or fences'. In 1967 number 4 was conveyed to the defendant's predecessor in title, and the conveyance similarly provided that 'the dividing garden wall or fence (if any)' on the north side of the property 'shall be' a party wall or fence. By the time the defendant purchased the property in 1977 a fence had been erected along the northern boundary line, but in 1979 he replaced the fence with a wall erected a few inches to his side of the boundary as demarcated by the old fence. The claimants, who acquired number 5 in 1990, commenced proceedings for trespass against the defendant when he clipped a hedge which their predecessors had planted near to the wall. The defendant contended that the boundary lay along the line of the old fence and that the hedge had been encroaching on his property. That contention was rejected by the judge who held that the wall erected in 1979 had replaced the previous boundary between the properties, marked by the fence. The judge therefore upheld the claim and awarded damages against the defendant. He appealed, contending that the building of a wall within his own property was not capable of transferring to his neighbour title to a strip of land between the centre of the wall and the line marked by the old fence.
Held – On the true construction of the conveyances, the references to a division or dividing wall clearly indicated an intention that the wall should demarcate the boundaries between the properties. If that were not so, it would be impossible to know where the true boundary lay since the plans were insufficiently detailed to demarcate the boundaries with any exactitude. Moreover, there had been an implied agreement between the owners of the properties in 1979 that the new dividing wall should mark the boundary between the two properties. That agreement, allied to the wording of the conveyances, had operated to convey the small additional strip from number 4 to number 5, and the wall built in 1979 therefore became a dividing wall and a party wall. Accordingly the judge had been right to conclude that the wall demarcated the boundary between the properties, and the appeal would therefore be dismissed (see p 651 d to j, post).

How about just defusing the situation put in a couple or a row of posts away from the fence and attach trellis along the top.
it doesn’t need to be a major structure as long as you aren’t growing a heavy Montana type clematis or you could even use an obelisk or two.
they would stop worrying about the fence and your mum would get some extra privacy.

This refers to where the boundary lies and not the ownership of the wall (which would be covered as a party fence wall by the Party Wall Act, and so is different to wooden fence in any event).

The case I quoted is exaclty the situation OP is in. In fact it states that even if the fence is built within the boundary of the neighbour it remains a party fence as it replaces a party fence.

We have a very vigorous clematis, I can understand why the neighbours would not be happy at the prospect of perhaps paying for another fence. You can not legally attach anything to a fence not owned by you.

There may be T marks on the plans, that would generally be taken as designating who is responsible for the fence. I wouldnt trust neighbours views of who owns a fence, IME that is frequently wrong.

Regardless of the law the sensible thing is for your mum to erect her own support for her plants. You dont necessarily need fence posts but if you do you could have a wooden trellis between them. Or you can erect metal posts with a metal grid between them - you can buy 6 foot by 3 foot rigid metal grids. Think about how the gardener is going to cut behind the support to stop the plant encroaching on the neighbours.

A camera pointing into your property is illegal. Your mum should apologise over the fence, say what she has done about it and then point out the camera is not legal and needs to be redirected.

And as for the linked guidance - adverse possession is now more difficult to claim. The court case was also unusual in referring to a wall or fence, had it not had that wording or there not have been implied agreement to make the wall the boundary the outcome might have been different.