Posted on 23rd May 2018 at 11:56
When is a party fence not covered by the Party Wall etc. Act 1996?
I seem to be still getting a lot of calls and emails regarding party fences. Hopefully this blog will clear up the confusion of party fences.
Ignoring the complicated issue of where the boundary line is between the properties, wooden fences or wooden fences with concrete posts and gravel boards are NOT party fence walls (or even party fences) under the 1996 Act.
Many people refer to title deeds where it may state within those deeds that the fences along the boundaries are 'party fences'. What this means in most cases is that there is shared responsibility for its maintenance. It does not mean that that the fence is in any way connected with the Party Wall Act 1996. Indeed, it is most likely that the deeds preceded the Act and therefor must have a different meaning.
Section 20 of the Party Wall Act interprets the expressions used in the Act. Under s.20 a party fence wall means
a wall (not being part of a building) which stands on the lands of different owners and is used or constructed to be used for separating such adjoining lands, but does not include a wall constructed on the land of one owner...
"It is considered that a fence is not a wall and that the distinguishing attributes of a wall are solidarity and permanence. A boarded fence, for example, lacks these qualities and, it is thought, could not be regarded as a wall..." Bickford-Smith, Nicholls & Smith 2017 P 14&15 Party Walls Law and Practice Fourth Edition LexisNexis.
If you have a simple fence between you and your neighbour and the deeds are silent, you will have to rely on other sources such as the Sellers Property Information Form when you bought the house.
If you are unable to determine who owns the fence then it is a matter of agreeing to share the responsibility for its replacement or not. There is no law that states you must have a fence to separate you and your neighbours land (not unless you are obliged by some other Act of Parliament such as the Animals Act 1971). Likewise, you cannot make your neighbour pay towards the fence if you want to replace it.
What you can do is pay and erect the fence yourself, on your side of the boundary and maintain it at your own cost.
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