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Stuart J
Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 19594
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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we are putting a fence up between our neighboring property,we

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we are putting a fence up between our neighboring property,we have a shared drinve with them with our fence in place they can still garage there carare we in our rights to put the fence up well on our side of the boundry line
Submitted: 10 months ago via InBrief.
Category: UK Law
Expert:  Stuart J replied 10 months ago.
Thank you for your question here on Just answer. It is my pleasure to try and assist you with this today. Please bear with me if I need to ask for any further information from you in order for me to be able to advise you fully. My name isXXXXX and I am a practising solicitor. I have been an expert on this website in UK law since 2008. During that time, as you appreciate, I have answered thousands of questions from satisfied users on a variety of subjects.

Because we are all in practice with clients and court and other users, I might not always respond in minutes, particularly evenings and weekends. Please bear with me in that case. I will be online and off-line all day most weekdays and weekends.

Do you have a specific question?
Customer: replied 10 months ago.

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

Customer: replied 10 months ago.

YES WE NEED TO KNOW ARE WE WITHIN OUR RIGHT TO PLACE A NEW FENCE ON OURSIDE OF THE BOUNDARYWELL WITHIN OUR BOUNDRY LINE

Customer: replied 10 months ago.

Please can you let us know as soon as possible as we really need to get this new fence in place

Customer: replied 10 months ago.

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??

Customer: replied 10 months ago.

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

Expert:  Stuart J replied 10 months ago.




Please explain the shared drive.
Is it a drive where you each own half of it would each of you have the consent
to go on the other half?

It appears that the was fence
which was removed at some stage. When was that?



Is this just replacing that
fence? Have they objected to this fence down the centre of the drive?



What exactly do the deeds say
about your rights and their rights over the drive?



Please bear with me this evening
because I am online and off-line



Customer: replied 10 months ago.

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

Expert:  Stuart J replied 10 months ago.


I am not going to be able to give you a definitive answer to this
and when I explain the law, you will know why.

The original fence must have been in place for 20 years in breach
of the easement before it can stay in place. The fence however was removed some
time ago but I don't know when.



So, if the court looked upon this as being a replacement fence
because one was coming out and the other one was going in, could probably put
it up depending on how long the original fence had been in place. However it
would have to go up in the same place and there is an argument to be had as to
whether it is a new fence or a replacement fence and that would depend on the
gap in between the old fence and the new fence. There is no case law on this
and I think a 12 month gap would probably be sufficient to say that it was a
new fence.



There are then two issues with regard the fence which you propose
and in that respect it doesn't matter whether it's on the original boundary
line or setback.



The first thing I will mention however is that if it is going on
the 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 fence
there, the neighbour has no right to object. However if they do object, you are
faced with a court application.



Assuming this is not a replacement fence is a new fence, it doesn't
matter whether it is setback 50 mm to put it just on your side or 300 mm, the
legal test, if they are allowed to grow over the whole of this area is as to
whether 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 into
their garage, what matters is whether the interference is substantial.



For example, a wheelie bin placed on a 24' wide drive is not a
substantial interference. It may be a nuisance but it is not substantial
interference.



Placed on a 10 foot wide drive it would be a substantial
interference.



So it would be necessary to look at everything in detail and even
then it would be for the court to decide whether your fence was indeed a
substantial interference.



There is another issue which you are creating by putting the fence
where you are putting it and that is in respect of the piece of land which you
are in effect losing by moving the fence over.



After 10 years the owner on the other side of the fence is
probably able to apply for adverse possession of that piece of land if you no
longer have access to it but he does and in that respect, you are creating a
problem with regard to any future sale.



By all means go ahead put the fence up because at least now you
are aware of the law. If the neighbour doesn't like it he is faced with taking
you to court for obstructing his right-of-way.



If it is an area, where you are putting the fence up, but he does
not have any need to ever go over ever and has never been over it ever it is
unlikely that this would be a substantial construction



Does that answer the question? Can I assist further or answer any
specific queries?



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Regards.



PS Experts on here are online and off-line all day each day and
weekends so please bear with me if I do not get back to you immediately.

Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 19594
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
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