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The storms may have passed, but the news remains full of images of the damage caused and the ongoing flooding problems faced by large parts of the country, with estimates for total insurance claims deriving from storm Ciara alone ranging from £200m to £425m.
By comparison the issue of wind damage to trees or fences and how boundary responsibilities dictate who foots the bill for that damage may seem somewhat trivial, but it’s likely to impact an increasing number of people in the years ahead.
If climate change continues to increase the regularity of extreme weather events, then more householders will wake up to blown over fence panels, fallen trees and flood water on their property, whilst wondering exactly where the responsibility lies.
When purchasing a property, the documentation for the property should indicate who owns any fences adjoining the property. If this information is missing, research into the pre-registration documentation should be able to settle the issue of ownership.
Title plans point the way
When looking at Land Registry Title Plans, the boundary outline is marked in red and any buildings in place when registration originally took place, will be outlined in black.
If responsibility for a particular boundary – and thus for anything built along that boundary – has previously been decided then the plans will have a ‘T’ marked on the boundary, with the party owning the land at the flat top edge of the ‘T’ being responsible for the boundary.
Even in cases where responsibility has not previously been decided, then the existence of boundary demarcations of this kind will make it easy to decide who is responsible for most of the fences around a property, and therefore for replacing any damaged fencing, or covering the cost of damage caused by falling fences.
When it comes to the ownership of a feature placed upon a boundary – which could be anything from a hedge to a wire fence or brick wall – the deciding question is which side of the boundary line it lies.
If you have put up a fence on your side of the boundary for example, then you’re responsible for that fence on your land and the same will apply to your neighbour. If a storm wreaks havoc with that boundary feature then there should be very little argument over who foots the bill.
Problems can arise when a boundary feature lies exactly along the boundary itself. The best and most inexpensive option when this is the case, is always for the neighbours to come to an agreement to share the cost of repairs, to make a joint insurance claim or to agree which neighbour should put the claim in.
With increasing risk of damage, neighbours with shared boundaries should draw up joint agreements on who is responsible for which fence, particularly if agreements of this kind do not already form part of the documentation accompanying the property.
An agreement of this kind should be prepared with the help of solicitors representing both sides and once agreed, should be signed by both parties, after which it could become a part of the title property for both properties.
If an agreement on the ownership of and responsibility for a fence cannot be reached then it is possible to have boundary disputes settled by an Independent Adjudicator to HM Land Registry. The cost however is likely to exceed the cost of paying for the repair to the disputed fence.
Often it is a tree, or part of a tree, that causes damage during the course of a storm and again, the issue centres upon who owns the land from which the base of the tree (irrespective of the location of overhanging branches) is growing.
If a solid, healthy tree is blown over, there is little scope for the landowner to be held accountable. If however it can be shown the tree in question was already damaged, was unstable in some way, or the landowner knew it was in a vulnerable state, they could be liable for the costs of any damage caused.
When it comes to flood damage, things are a little different. There exists a ‘common enemy’ principle, which gives any landowner the right to take reasonable action to protect their land from naturally occurring floodwater, even if that means causing damage to the land of a neighbour.
The exception to this rule occurs if the flood water collects only within the boundary of one neighbour, and they then take some kind of action that causes the water to flood and damage land of their neighbour.
Typically, the first landowner will be liable for the damage caused, but in real world conditions this is unlikely and the cost hiring experts to prove negligence on the part of any individual would negate any potential benefit – storm damage can be a complicated issue if you do not get on with your neighbours.
If you are worried by the potential for damage to your property or have recently suffered damage and cannot get a neighbour to cover your costs, then please speak to Neil Faunch, a member of the experienced Commercial Property team here at Ansons. Neil can be contacted on 01543 263456 or email firstname.lastname@example.org