boundry upkeep

[susantolley]

our house is 6 feet above our neighbours. On the house deeds they are responsable for the maintainace of the boundry. This constitues a fence (that can be seen from both properties) and a wall which can be seen from thier side which retains the earth from our drive. Are they resposable for the fence and wall or just the wall?

[zmudge]

So that an answer which you may find useful can be given would you please say (1) in whose deeds do these words appear (yours, your neighbours, both) (2) can you please post the exact words and (3) are you and your neighbour in houses on an estate developed by the same developer. 

[zmudge]

Just to add a little, a covenant that someone is "responsible for the maintainance of the boundary" is a somewhat unusual, that is why I need to know the exact wording before replying. You may not be aware, but all deeds have been done away with now and the only thing that counts is your Registration at the Land Registry. To see this click here and follow the instructions. You only need to see the Register, and the relevant wording will be there. If you could then copy the wording here I will be happy to comment further if you would like.

[susantolley]

The registration for our property says "The purchaser shall for ever maintain good and sufficient fences on all boundaries of the property marked T inwards on the said plan the sites of all existing fences on all such boundaries to be the property of the purchaser provided that the obligation hereunder shall not become operative in respect of any such fence so long as the purchaser shall continue in occupation of the company's land adjoining thereto"

The T is inwards on the neighbours property.

The houses were not built by the same developer. neighbours house is 5-10 years older.

T

[zmudge]

susan. Would you please be so good as to confirm/clarify

(1) the wording you give is in your registration (not your neighbours) ?

(2) do the words after "provided" make sense to you ?

(3) are there any inward "T"'s shown anywhere at all on your property?

Depending upon your replies I will give my opinion in the next posting.

[susantolley]

I can confirm

1) The wording is in my registration

2) No the words do not make sense to me

3) There is an inward T at the front boundry of our property

[susantolley]

Futher information to help with your answer.

Neighbours register states 1929 No bounderies marked with a T

1933 (6 years before our property was registered)

a) The Purchasers should within one month from the date of the assurance to them of the land thereby conveyed erect and for ever thereafter maintain good and sufficient boundry fences within the boundaries of the land thereby conveyed marked 'T' inwards on the plan to the above-written conveyance in manner following that is to say:-

1) Within the north-eastern boundaries of the land next adjoining the Oxford Southern By-Pass Road and within those parts of the north-western land coloured brown on the said plan to which any dwellinghouses intend to be erected by the purchasers on the land should front oak close boarded fences on brick foundations or concrete wall block walls on brick foundations not exceeding in each case in height 4 feet from level of the ground.

2)Within the remaining parts of the north-western and south-eastern boundaries of the land next adjoining the said strip of land coloured brown on the said plan on which any dwellinghouse intend to be erected by the purchasers on the land facing the said By-pass Road should abut 5' close boarded fences on brick foundations

3) Within the south-western and north-western boundaries of the land adjoining the remaining property of the Vendor 5' iron post and 6 strand wire fences the 2nd and the 4th from the top of such strands of wire only to be barbed.

All fences should be so constructed as to prevent all animals escaping from adjoining property of the vendor into the land thereby conveyed. In case the Purchasers should make default in erecting or maintaining  such fences the vendor should be at liberty to erect repair or renew the same at the expense of the Purchasers the amount whereof should be paid on demand made.

.

[zmudge]

OK. My view is:-
(1) the land upon which your house is built once formed part of a larger estate which has been divided up for development
(2) the covenant in your Registration makes sense only in relation to the original larger estate. It is now just words that someone has copied into your documentation without understanding them. This is not at all uncommon
(3) your solicitors at the time you purchased were negligent in allowing these words into your Registration. They should have been spotted as nonsense and tidied up before you completed
(4) the retaining wall and the fence on top are entirely your property, your boundary is the  neighbour's side face of the retaining wall and you alone are responsible for maintaining the wall and the fence. For the avoidance of doubt I state that your neighbour's have no liability to anyone in any way whatsoever for the retaining wall and fence on top
(5) there may be a few inches of retaining wall foundation projecting underground into your neighbour's property. This is quite normal and does not alter (4) above in any way. The retaining wall is for the benefit of both sides
(6) the inward T's on your neighbour's side relate to an old fence at the lower level which was removed to permit the building of the retaining wall. The face of the retaining wall replaced that fence. The T's should be removed from your Plan if you update your Registration
(7) with regard to your other fences, the T's indicate that the front fence is yours, the retaining wall fence I have dealt with, and all other fences belong to whoever put them there
(

[zmudge]

(8) you would not want the retaining wall and fence to be anything other than as I have stated. There is no law that regulates the condition of boundaries, and owners/neighbours are really under no obligation to keep up repairs. Even if the covenant made sense and was repeated in the Registration of each property it would be next to impossible for you to enforce it. In the ordinary course of events there is no contract between adjacent freeholders (this is a very important point and should be remembered).
Really you should now update your Registration by deleting the existing covenant and replacing it with words and a Plan that accurately reflect the situation as existing, otherwise one day you may have difficulty, not least if you want to sell. This is quite easy to do through a solicitor at a cost of around �200 plus �40 Land Registry fee.

[zmudge]

The above reply was prepared before I saw your second post, but it stands unaltered. The clauses you have posted relate to sellers and developers of long, long ago and have no meaning in the present day. There is nothing that you can enforce, there is nothing that can be enforced against you. It was a contract made long ago between people who no longer exist, the contract is long stone dead, the matters referred to are nothing to do with you and should never have been included in your documentation/Registration. You really need to employ a solicitor as I have said to remove all this old irrelevant stuff from your Registration and replace it with words and a Plan accurately reflecting the position today.

[susantolley]

Thank you for your help. We will get on to it.