When it comes to fencing and walls (and I've built all sorts) it's easy to get into a dispute with the neighbour. It's also easy to avoid a dispute, all it takes is a little common sense, courtesy and good communication.
This isn't a how-to, it's just a little advice based on my own experiences and those of friends.
Disclaimer: To cover my ar*e - This page is built from relevant anecdotal experiences of people I know. It should not be relied upon in court, or for legal challenges or anything whatsoever. Read at your own risk, use the advice at your own risk. This disclaimer is not limited to the reader, it extends to everyone in the universe, and it is the responsibility of the reader to spread this disclaimer message when referring to this post. Right then, I reckon that should cover it!
I reckon you'll get a lot of benefit from this page. If you're in a hurry, you can jump straight to...
LEGAL CONSIDERATIONS FOR REPLACING A BOUNDARY FENCE OR WALL
If you need to modify a boundary structure, there are a few important things to do beforehand that will avoid some pretty nasty pitfalls at a later date. I should point out that I'm no expert, certainly not qualified in law. This is just a bit on experiences of myself and others.
The position of boundaries in Britain is a contentious issue, we Brits are very protective over our land, and lawyers love it! I know a few people who have been caught up in arguments over the position and ownership of boundaries, sometimes ending up in court, otherwise ending up filling the pockets of some very expensive lawyers/barristers/solicitors.
First things first – check who owns and is responsible for the boundary. Most people assume that the “T” on a conveyancing plan automatically denotes who owns the boundary, with the person whose land the “T” points to as being the assumed owner. However, this has been contested in court and found to not be the case. Furthermore, don’t expect Land Registry to advise, they are well aware of the fact that it is ultimately the decision of a judge to decide who owns the boundary, not a “T” marked on a plan.
Here's an example of a "T" marked on a boundary in a conveyancing plan:
Here's an extract from HM Land Registry:
If the ‘T’ marks are expressly referred to in the deeds lodged for registration then we will reproduce them on the title plan and refer to them in the register. As an alternative, the boundaries affected by ‘T’ marks may only be described verbally in the register, for example “The ‘T’ mark referred to [in paragraph/clause…] affects the [north western] boundary of the land in this title”.
‘T’ marks on deed plans which are not referred to in the text of a deed have no special force or meaning in law and unless an applicant specifically requests that the ‘T’ marks be shown on the title plan, we will normally ignore them.
Therefore, prior to making any boundary alterations, I suggest speaking with your neighbour and making sure they are kept in the loop and are happy with your plans to build a fence, ideally in writing. As an absolute minimum, make a note of the conversation you have with them.
RECORDING THE POSITION OF EXISTING BOUNDARIES
It's important to record the position of the existing boundary, just in case your neighbour turns nasty, or decides to sell to a person who will turn nasty.
The more you can do to record the position of the boundary, the better. A friend of mine had pictures of a fence
Accurately measure the position of the existing boundary. To do this you can take measurements from an unmovable structure, such as your house, or the opposite boundary (if you don't have any plans to modify the opposite boundary that is!). Make a note of this and keep it safe.
Take pictures of the existing boundary. Ideally from afar so that the picture also includes other objects in relation to that boundary.
Lastly (and this is what I did), try to leave part of the existing fence in place, such as the post foundations, and cover them up with soil. This obviously means you’ll need to position the new posts differently to the old posts, but most of the time this is achievable and can be done along the same line of the old boundary. This leaves an indisputable record of the old fence.
You could go all out and film yourself making the new fence then put it on YouTube and your website…… maybe not, perhaps leave that one to me 😉
Often, there are measurements on the conveyancing plan, such as the one on the plan I gave above, here it is again, you can see the 35ft dimension on the left:
As with the "T" mark discussed above, this is an indication, not an exact measurement.
PLANNING AND BUILDING REGULATIONS
Yes, your local planning department also has rules about fences and walls, not surprising really!
Just for us Brit's, here's the exact text from the Planning Portal (at the time of writing). For anyone outside the UK, I don't know what permissions you may require:
"You will need to apply for planning permission if you wish to erect or add to a fence, wall or gate and:
- it would be over 1 metre high and next to a highway used by vehicles (or the footpath of such a highway);
- or over 2 metres high elsewhere; or
- your right to put up or alter fences, walls and gates is removed by an article 4 direction or a planning condition; or
- your house is a listed building or in the curtilage of a listed building.the fence, wall or gate, or any other boundary involved, forms a boundary with an neighbouring listed building or its curtilage"
If you’re still unsure, best to call your local planning department and check.
And here's what they say about Building Regulations:
- "Fences, walls and gates do not require building regulation approval.
- However, the structures must be structurally sound and maintained.
- If the garden wall is classes as a 'party fence wall' then you may have to notify the adjoining owner."
I'm not going to go into detail about the Party Wall Act, that's a minefield in itself!
PROTECTING YOUR NEIGHBOURS PLANTS AND TREES
Don't assume your neighbour will be happy with you trimming their tree in order to gain access to replace a fence. You never know, it might have sentimental value!
To some people, maybe yourself, a tree is a tree and a flower is a flower. As a full-time landscaper, I have come across a number of scenarios whereby clients have plants that have been passed down through the generations. Not surprisingly, they hold a very special place in their hearts.
I even had one client who made me state in the contract that a tree was to remain completely untouched, because a curse was apparently placed on the family hundreds of years ago that if that tree were to die, so would a family member, I kid you not, and he wasn't joking either!
Anyway, whether you believe in that or not is beside the point. The point is that you shouldn't even trim a twig from a plant on your neighbours side of the boundary, without first getting permission, out of courtesy and on legal grounds (in the UK).
In most cases it is easy enough to tie back a branch using rope. Simply lasso a length of rope around it and peg the ends in place, so that it is held back temporarily until the work is complete.
As for smaller plants that are rooted next to the fence, accept that some of them will be trampled on, despite your best intentions. So if you or your neighbour are precious about them, I would temporarily move them just before you're about to start.
I'll add to this post from time to time. If you have any personal experiences with boundary issues, let me know, I'd love to hear from you.
Thanks for taking the time to read through this page, I really appreciate it.