A boundary divides two pieces of land and may be physical, such as a wall or legal and identified in legal documents. If the latter is the case, it is rare that the boundaries will be identified precisely.
A physical boundary may not follow exactly the same line as the legal boundary. It is possible for owners of two adjacent pieces of land to fix a boundary by agreement between them or a boundary may be fixed by statute or by legal presumption.
Owners of properties should look to the title to their properties which if registered, will be held by the Land Registry, and if unregistered will be contained in the Deeds. Frequently Deeds and title information contain details of any obligations to erect a boundary structure on the legal boundary between two parcels of land.
There are some occasions where it will be necessary to erect a boundary structure such as the customary duty, which is enforceable at law to fence land containing cattle. There is a statutory requirement for the Highways Authority to erect such rails and fences, as they consider necessary for the purpose of maintaining people’s safety.
In the absence of any statutory or common law requirement and where the Deeds to the property are silent as to the fencing of boundaries, there is no obligation on any individual to erect a boundary structure to denote the boundary of their land.
Common sense often dictates that a boundary structure should be erected, such as where a person has a dog or other domestic pet, which needs to be contained within the boundaries of the property. Any failure to keep the domestic pet within the boundaries of the property may result in a claim for damages under the Animals Act or for trespass and/or nuisance against the owner by a neighbouring landowner.
There is a difference between ownership of a fence and an obligation to erect a boundary structure. Often “T” marks are used on plans that accompany transfers of property to indicate ownership of a boundary feature or the liability to maintain or repair a boundary feature. The ‘T’ will be drawn on the land of the party that owns the boundary feature with the base of the ‘T’ touching the line that represents the feature.
Whilst the presence of a ‘T’ mark on a plan may be taken as an indication that the fence along that boundary line belongs to the property with the responsibility to erect a boundary, if there is evidence to show that in fact the boundary structure was erected by the neighbouring property, then the neighbouring property will retain ownership of that fence even though the Title Deeds to the property will indicate that it was not their responsibility to fence the boundary.
Occasionally, plans may show a ‘H’ mark. This essentially shows two ‘T’ marks mirrored on a boundary line and is the symbol that is used if the responsibility for the boundary is shared between the neighbouring properties. If there is no information contained in the Deeds as to who is responsible for erecting a boundary structure, then home owners should initially look at any information contained in the sellers Property Information Form that was given to them when they purchased the property and speak to their neighbours.
In the absence of any useful evidence then any property owner is entitled to erect a boundary structure on their land. However, in order to avoid the risk of being accused of having trespassed on their neighbour’s land they should take care to ensure that the boundary structure is erected entirely on their side of the legal boundary.
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Anna Golding. |
Gullands Solicitors
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