Homeowners often want to know who owns which of the fences or other boundaries round their property. But Conveyancing Solicitors often find it difficult to give a definite answer.
There is no common law requirement for a property owner to fence their property. Likewise there is no rule of general law preventing an owner from erecting fences, walls or hedges within their own property boundaries – although there may be restrictions in planning law.
Unclear boundary ownership on title plans
Buyers may expect to find the answer in the land registry title. However their title plans do not show ownership of property boundaries, so they are generally of no help.
Sometimes an earlier title deed, which might be referred to in the registered title, will help determine ownership. It is quite common when a house is first sold for the Conveyance or Transfer to contain a covenant by the buyer to maintain the fences on the boundaries marked on the accompanying plan.
By convention such boundaries are usually marked with a ‘T’ mark facing inward. Sometimes the deed will refer to points marked on the plan, e.g. requiring the buyer to maintain fences between points marked A-B, when a fence is not required along a complete length of boundary.
Alternatively a deed may contain a declaration that boundary walls are party walls. While such declarations often only apply to the walls separating houses or other buildings, they may also apply to walls separating gardens or courtyards. The exact interpretation will require careful reading of the wording in the original document.
In the absence of any clear evidence in the title deeds there are no hard-and-fast ways of determining who owns a fence. There are a number of presumptions that may help, but these cannot be relied on to provide a definite answer.
The academic's view
For instance there is the ancient ‘hedge and ditch’ presumption, beloved of academic lawyers. This says that if a landowner digs a ditch along the edge of his property it will have to be within his own legal boundary or otherwise the neighbouring owner would object. The spoil from the ditch would be thrown onto the owner’s own land, thus forming a bank. It would then be convenient to plant a hedge along the top of the bank. In this scenario the hedge belongs entirely to the first owner, and does not mark the position of the legal boundary, which will lie on the far side of the ditch.
Of course this is rarely of much help with modern residential properties. If one boundary of a garden follows an old field boundary, it could help decide who a hedge belongs to. But the chances are that any original ditch will have long since been filled in, so it would be difficult to say whether the presumption could be applied.
Boundary ownership in practice
Some people consider that a fence will belong to the owner on whose side the fence-posts are located. The rationale for this is that you will have to put the posts in your own land, so the fence itself will run along the legal boundary. This may help with a traditional type of fence, but with modern fences the panels are often fixed or slotted between the centre of the posts, so there is no indication that the posts are on one side or the other of the legal boundary.
Even when a title deed contains a covenant and plan making one owner responsible for maintaining a boundary fence, it cannot automatically be assumed that an actual fence or wall belongs to that owner. If a property has been in existence for many years, the original fence may have fallen into disrepair. When this happens the adjoining owner may have decided to erect their own fence, which will then belong to their property.
Property owners also sometimes want to erect a better quality fence than that originally provided, or need a fence that will keep pets in their own garden. In these circumstances fences are quite often put up by the owner who is not actually responsible for maintain the fence on that boundary.
Of course it does not always help if you find that the deeds show that your neighbour is responsible for maintaining a fence, but he will not repair it. In that case, you could take legal action – which might take years, will probably be expensive, will not necessarily achieve the desired result and will almost certainly result in an on-going feud with your neighbour (if you do not already have one. )
Your neighbour might be prepared to split the costs with you, but if that does not work you can always put up your own fence – but this must be on your own side of the legal boundary. Determining precisely where this lies can be as problematic as working out who owns a fence.