Next door's garden fence has fallen down and the property manager is ignoring me - what can I do?

I help my mother manage her home, as she is disabled. The property management company for the building next door has allowed the fence to fall down in some places and rot away in others. The gaps are big enough that people can walk through them.

The building next door is a block of 14 flats and the residents are apparently paying high fees to this company for maintenance. 

I am afraid of people looking at the fence wreckage, deciding that the property is unoccupied and breaking in. 

It appears that the company has been ignoring their responsibilities for years. 

Although they admitted responsibility for the fence to me four months ago, they have stated that its ‘too expensive’ to fix it and have been stonewalling me ever since. 

What can I do? Gael from Uxbridge.

Bad neighbour: The management company for a block of flats has allowed the fence to fall down, and this is bothering the people next door

Ed Magnus of This is Money replies: You’re certainly not the first reader to alert us of a garden fence dispute.

We have had emails about a neighbour stealing someone’s garden. Another person asked if they could put up a tall fence to stop their neighbours overlooking them.

Stonewalled: In four months Gael has seen a great deal of deterioration with the fence which has led to a partial collapse into her property

And one reader emailed in about their neighbour’s dog jumping up at their fence so relentlessly that it was in danger of knocking it down.

One hopes their neighbours will always be decent and reasonable human beings, who will take responsibility when issues arise that impact your peace and security.

Unfortunately, people can often behave badly in these situations – particularly when money is at stake.

Your case Gael is slightly different, however, in that you’re dealing with a company rather than an individual.

You would hope this might make things easier – removing the chance of a personal vendetta developing.

But it appears this management company is making things harder, by avoiding both responsibility and communications over this particular matter.

To get some expert advice, we spoke to two legal experts, Mike Hansom, a consultant for property litigation at BLB Solicitors, and Chun Wong, a partner at Hodge Jones & Allen.

Who is responsible for a garden fence? 

Mike Hansom replies: You say you think the management company is responsible for the fence, but this is worth checking.

I am frequently asked who is responsible for repairing a boundary feature, such as a fence.

People are often surprised that it’s common for property deeds to say nothing about whose obligation it is to repair a fence or who owns it.

Mike Hansom a consultant for property litigation at BLB Solicitors says it’s common for property deeds to say nothing about whose obligation it is to repair a fence or who owns it

There is also a common misconception that each neighbour along a street must repair the fence or other feature on one side of their garden, with their neighbour responsible for the other. This is a myth.

Another potential problem is that even where the deeds obligate one owner to repair, you might not have the legal ability to force your neighbour to comply with that obligation.

This is because of a quirk of English law that means positive obligations (or ‘covenants’) imposed in freehold deeds do not automatically bind new owners when the land changes hands.

So, even where the deeds state the obligations will be binding on all future owners, they still won’t be.

That’s unless each time the freehold is transferred, the new owner signs a deed of covenant obligating them to comply. Although this happens in new-build estates, it’s unlikely in other situations.

What should they do? 

Chun Wong replies: The first issue is to establish who owns the fence and is liable for its maintenance – you say that the company have agreed responsibility which should ideally be obtained in writing.

They should be warned in writing about the potential damage to your mother’s property, and that they are liable for consequential loss as a result of their failure to keep the fence in repair.

Chun Wong, a partner at Hodge Jones & Allen, suggests they consider using the Boundary Disputes Mediation Service

You may wish to consider using the Boundary Disputes Mediation Service, which has been set up by the Royal Institute of Chartered Surveyors and the Property Litigation Association ‘to help neighbours resolve disputes about boundary lines and related issues.’

It provides a quicker, cheaper and more informal approach than litigation, while helping neighbours deal with issues that are at the heart of their dispute in a positive and proactive way.

The residents of the flats may separately have their own action against the management company if it is failing in its duty, given the service charges that are paid by the residents to keep the building in good repair and maintenance.

You may need to inform your mother’s building insurers, but also check if there is any form of legal expense insurance she may have that could pay for legal costs.

As a final and last resort you could bring a claim in court to make the company do the repairs or pay for any losses.

Is it a ‘legal nuisance’? 

Mike Hansom replies: I have assumed your property is freehold, not leasehold, and it’s not part of the neighbouring estate.

The first thing to do is to check your deeds, but I am not confident you will find any obligation on which you can rely to force your neighbour to act.

However, if the fence has collapsed onto your land, this introduces the potential for a compensation claim for legal nuisance.

You might also succeed in obtaining an injunction forcing your neighbour to remove the remains of the fence from your land, having deprived you of its use while in situ.

But to do so, you must prove the fence belongs to your neighbour rather than you.

Also, remember that this will not result in your neighbour having to replace the fence.

Regrettably, in many situations, it’s often cheaper and far less hassle to pay to repair a boundary fence than to enter a legal wrangle. Disputes are frequently inconvenient and costly.

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