Fence dispute with Housing Association?

by Readers Question

16:18 PM, 23rd January 2017
About 4 years ago

Fence dispute with Housing Association?

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Fence dispute with Housing Association?

The fence between my property and the neighbours blew down near the start of last year.fence

The fence is believed to be a shared fence as the property deeds do not show a “T” on either side of the boundary and no evidence to dispute this has been found.

The neighbouring property is owned by a housing association, so I contacted them to discuss “us” getting it replaced with a new fence and sharing the cost.

They have informed me that it is their tenants responsibility to pay for their half of the costs as that is a term they put in their tenancy agreements and to discuss it with them.

Well, to start with this seems unfair as it’s the housing association’s property, but I guess if that’s how they operate then so be it.

However, the fence was down before the current tenant moved in, so as this fence was damaged between tenancies surely the housing association should pay their half in this case?

Spoke to the tenant regarding the situation and they said they could not afford to pay anything towards the cost at present. Housing association said they spoke with tenant and said that their tenant had told them they would try and save some money toward the cost but they did not know how long this would take.

After 6 months spoke with tenant again who said they still had no money to pay toward cost.

Spoke to housing association to inform them of tenants situation and they responded with the following – “As we previously told you it’s up to the tenant to pay for their half of the fence as stated in their tenancy agreement, however, we cannot enforce the tenant to repair or replace the fence”.

So, they cannot enforce that their tenant complies with the terms of their tenancy agreement!

It has now been close to a year and I still don’t have a fence! My tenants are an elderly couple and don’t really use the garden that much, however, out of principle I don’t see why the housing association should not pay for half the cost.

Anyone have any advice or thoughts?

Thanks

Lordship


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Comments

Luk Udav

13:00 PM, 24th January 2017
About 4 years ago

Party Wall etc Act 1996 is clear. The HA as owner is reposnsible. I had to deal recently with a very similar situation - the slum landlord who owns a property next to one of mine was of course reluctant to pay his share - but a read of https://www.gov.uk/.../Party_Wall_etc__Act_1996_-_Explanatory_Booklet.pdf makes it clear (as long as it IS a party wall of course)

terry sullivan

13:07 PM, 24th January 2017
About 4 years ago

is a fence a party wall? i think not but the party wall act is badly drafted

Sean Graveney

13:37 PM, 24th January 2017
About 4 years ago

Just checked and Party Wall Act does not include timber fences...

https://www.gov.uk/guidance/party-wall-etc-act-1996-guidance#what-is-a-party-wall

Lordship

13:49 PM, 24th January 2017
About 4 years ago

Thanks for your comments everyone.
I will be speaking with the HA again this week and will ask to speak to their legal department. I will let them know I intend to go to the small claims court if needed.

John Pettman

14:06 PM, 24th January 2017
About 4 years ago

I think you are missing the most important point . Even if there were an obligation to repair and maintain a fence this would be a positive covenant and distinct from a restrictive covenant . Restrictive covenants can be enforced but positive covenants are often unenforceable in a freehold estate , but we do not appear to even have any obligation to repair and maintain. In respect of who originally owned the boundary( as distinct from the fence) it is no good just looking at the Land registry filed plan . You need to examine the plan and conveyance that created the original sale of the individual properties , but as I have already stated even if you find out who owned the original boundary and even if there were an obligation on the other owner to repair and maintain you would be unlikely to enforce it . Thus the easiest way is for you to put your hand in your pocket and get it repaired yourself

John Pettman

yew tree

16:58 PM, 24th January 2017
About 4 years ago

there is no law that says you have to have a fence ( unless its to keep animals in)
so if you want a fence you pay, make sure if you do put YOUR fence up that its on the boundary of your property, tell the other party not to paint, fix or grow anything on what is your fence
your fence could be old pallets, just a wire, bit of string ,row of bricks,

Monty Bodkin

17:59 PM, 24th January 2017
About 4 years ago

Agree with John and Yew Tree.
Also see this link, I think that is what the HA are trying to say;

http://www.landlordlawblog.co.uk/2012/05/28/is-the-landlord-liable-through-not-repairing-the-fence/

"First – is the landlord actually liable to repair the fence? You need to look first at your tenancy agreement, although I expect it will probably be silent about garden fence panels.

In which case, my view is that it is not the landlords responsibility to do the repairs, as this does not come under the landlords statutory repairing covenants under s11 of the Landlord & Tenant Act 1985."

Seething Landlord

0:04 AM, 25th January 2017
About 4 years ago

Reply to the comment left by "Monty Bodkin" at "24/01/2017 - 17:59":

This is not a dispute between landlord and tenant but between owners of adjoining properties.

Monty Bodkin

11:03 AM, 25th January 2017
About 4 years ago

Reply to the comment left by "Seething Landlord" at "25/01/2017 - 00:04":

Agreed.
And it seems there is no legal responsibility for either of the owners to repair.
There is however a contractual responsibility between the HA and their tenant.
The O.P can't enforce this and the HA have no legal obligation to do so.
So the O.P can either leave it as it is, pay for it themselves or negotiate but they can't enforce anything.

Seething Landlord

12:51 PM, 25th January 2017
About 4 years ago

Reply to the comment left by "Monty Bodkin" at "25/01/2017 - 11:03":

Whether there is a legal responsibility to repair the fence cannot be determined without knowing the history of the properties and what if anything is included in the title deeds. If there is a covenant stipulating that owners of adjoining properties have shared responsibility to maintain and repair the fences I believe that if one owner carries out the work he would be able to recover half the cost from the other. This is different from forcing the other to do the work if it is his sole responsibility, which I agree would be problematic. In the absence of a covenant or any clear evidence to the contrary the presumption would be that the fence is jointly owned in which case costs should be shared equally. I find it difficult to believe that any reasonable owner would dispute this and that the courts would not uphold it.

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