Boundary structures – who is responsible?
To find out whether you or your neighbour is responsible for repairing or replacing a wall or fence along the boundary between you, first check your own title documents – there may be an indication there, though it is very common for there not to be.
If your title documents are not conclusive, it is worth checking your neighbour’s.
For properties on housing estates, for instance, it is common practice for the plan attached to the first Transfer of a newly-built house to show (traditionally, by internal “T” marks) which of the boundaries belong to the property – external “T” marks indicate the boundary is the relevant neighbour’s responsibility while “H” marks (“T” marks on each side) indicate a shared boundary.
Even if the property is not on an estate, it is worth checking the title documents for any information.
However, this is not necessarily conclusive: it may be that an original fence has blown down and been replaced by someone who was not originally responsible for it – by doing so, they have become the owner of the new fence, so it is their prerogative to repair it – though, in the absence of a legal obligation, they cannot be forced to do so.
Similarly, adjoining owners may agree to share the cost of replacing a fence that was previously the responsibility of one of them alone – identifying what they did actually agree to goes a long way towards what responsibilities they also took on for future maintenance.
Where animals are involved, it is the animal-owner’s responsibility to fence their livestock in (Animals Act 1971) – this does not automatically prove the relevant fence is theirs, but it raises a supposition that it is.
If you cannot identify the factual position, there are some legal presumptions that take over –
- In the absence of ‘T’ marks or words confirming the position in the title documents, a wall is presumed to be jointly owned and its maintenance a joint responsibility.
- There is a rebuttable presumption that a person will have erected a fence (and therefore own it), if the posts and arris rails are on their side – with the “neat” side facing their neighbour owner’s side. However, neighbourliness being in short supply these days, it is at least as likely (in my view) that the owners of the fence will want to benefit from looking at the neat side, and there is some physical logic to this: a landowner would erect the upright posts on his side of the boundary, and nail the boards to the horizontal arris rails from his side (ie, standing on his land) – in which case, the neat side will face the owner of the fence. All-in-all, there seems to be no useful presumption from the way the fence faces.
- More usefully, at least where a fence or hedge is next to a ditch, the legal presumption is that the landowner, before erecting the fence or planting the hedge, would dig the ditch at the boundary, piling the spoil on his side of the ditch, and planting the hedge or erecting the fence on the mound that has been created – accordingly, both the ditch and the hedge would belong to that landowner.
There is no truth whatsoever in the urban myth that the boundary on the left (or right) of a property “always” belongs to that property – each case depends on its own facts.
If all else fails, just talk to your neighbour about who should repair or replace the fence, and be willing to put your hand in your pocket to pay (or contribute) yourself: while it may be true that “good fences make good neighbours”, there is no merit at all in falling out with a neighbour over who pays what for which fence or wall.