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when we purchased the property there was a dividing fence down the drive,which was removed due too poor repair.It is a shared driveway and we wish to enclose our garden,which still allows access for our neighbor to get to and have use of her garage am I within my rights placing a fence on my side of our property
YES WE NEED TO KNOW ARE WE WITHIN OUR RIGHT TO PLACE A NEW FENCE ON OURSIDE OF THE BOUNDARYWELL WITHIN OUR BOUNDRY LINE
Please can you let us know as soon as possible as we really need to get this new fence in place
are we within our rights to put a new fence up where the old one was still allowing access to the garage of our neighbor??
Am I within my rights to erect a new fence,which will be on our side of the shared drive which still allows her access to her garage
Please explain the shared drive.Is it a drive where you each own half of it would each of you have the consentto go on the other half?
It appears that the was fencewhich was removed at some stage. When was that?
Is this just replacing thatfence? Have they objected to this fence down the centre of the drive?
What exactly do the deeds sayabout your rights and their rights over the drive?
Please bear with me this eveningbecause I am online and off-line
We both have use of the drive,which gives access to both garages. t,he fence was erected about 10 years ago.When we bought the property our neighbors asked us o take the fence down as it was in bad repair.The house has now been sold and we decided to put the original fence back in placeWe have moved the fence 12inchback onto our property so our neighbors could have no complaint to the fence going back up..Our neighbors still have access to the garage
I am not going to be able to give you a definitive answer to thisand when I explain the law, you will know why.
The original fence must have been in place for 20 years in breachof the easement before it can stay in place. The fence however was removed sometime ago but I don't know when.
So, if the court looked upon this as being a replacement fencebecause one was coming out and the other one was going in, could probably putit up depending on how long the original fence had been in place. However itwould have to go up in the same place and there is an argument to be had as towhether it is a new fence or a replacement fence and that would depend on thegap in between the old fence and the new fence. There is no case law on thisand I think a 12 month gap would probably be sufficient to say that it was anew fence.
There are then two issues with regard the fence which you proposeand in that respect it doesn't matter whether it's on the original boundaryline or setback.
The first thing I will mention however is that if it is going onthe original boundary line, you can only do it with consent although, if,referring back to what I said earlier, you have the right to put the fencethere, the neighbour has no right to object. However if they do object, you arefaced with a court application.
Assuming this is not a replacement fence is a new fence, it doesn'tmatter whether it is setback 50 mm to put it just on your side or 300 mm, thelegal test, if they are allowed to grow over the whole of this area is as towhether this friend causes a substantial interference with their right-of-way.
It doesn't matter that they are able to get past and get back intotheir garage, what matters is whether the interference is substantial.
For example, a wheelie bin placed on a 24' wide drive is not asubstantial interference. It may be a nuisance but it is not substantialinterference.
Placed on a 10 foot wide drive it would be a substantialinterference.
So it would be necessary to look at everything in detail and eventhen it would be for the court to decide whether your fence was indeed asubstantial interference.
There is another issue which you are creating by putting the fencewhere you are putting it and that is in respect of the piece of land which youare in effect losing by moving the fence over.
After 10 years the owner on the other side of the fence isprobably able to apply for adverse possession of that piece of land if you nolonger have access to it but he does and in that respect, you are creating aproblem with regard to any future sale.
By all means go ahead put the fence up because at least now youare aware of the law. If the neighbour doesn't like it he is faced with takingyou to court for obstructing his right-of-way.
If it is an area, where you are putting the fence up, but he doesnot have any need to ever go over ever and has never been over it ever it isunlikely that this would be a substantial construction
Does that answer the question? Can I assist further or answer anyspecific queries?
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