" Enforceable covenant" in the deeds

[Plumbob]

Good morning.

I'm curious to know if this covenant is still active and can be used to determine what type of boundary fence is permissible on this property.
Over the almost 100 years it has been in the deeds, the fence has morphed into various hedges and fence panels.
Could I remove all the various hedges etc and revert to what the deeds state? Obviously bearing in mind the measurements of the original boundary?
Thanks all.

[Lawcruncher]

The covenant is positive and therefore personal which means it can only be enforced against the purchaser named in the conveyance. For further information see this thread I started on Garden Law: https://www.gardenlaw.co.uk/phpBB2/viewtopic.php?t=1727

[Another Fine Mess]

We had a Private Road which ran through our Farm. We gave access to the Local Council to use the lane on the basis that they would maintain it and fence it. They stopped using the lane in 1973. In 1974 the Council changed, amalgamated with two other Local Councils and became a Metropolitan Council. I asked the "New" Council in 1990 if they would honour the previous Road Maintenance and Fencing Agreement and they said they did not have to as it was with an authority which no longer existed.

[Lawcruncher]

"...they said they did not have to as it was with an authority which no longer existed."

A somewhat dubious assertion. I am not going to read it to confirm it, but I think that the Local Government Act 1972 must have transferred both assets and liabilities from old councils to new.

Whether the agreement is still enforceable depends on its terms, but if the road has not been used by any council since 1973 I think it has to be assumed that it has lapsed.

[nukecad]

Even if the covenant in the OP was still enforable there would be a problem with the wording ".. or other suitable fence ..".

Who is to judge what is 'suitable'?
And yes, a hedge can count as a fence in law.

[Lawcruncher]

Who is to judge what is 'suitable'?

Ultimately a judge. I do not see the word "suitable" rendering the provision void for uncertainty. The wording refers to a four foot high post and wire fence which can be taken as a guide. Since the minimum requirement is a post and wire fence it can assumed that its main purpose is to define the boundary, rather than, say, to afford privacy. However, any fence has to be at least four foot high. A four foot high close-boarded fence would be suitable, but a two foot high picket fence would not.

And yes, a hedge can count as a fence in law.

I have never seen that suggested before, but I can see it could well be the case in some circumstances. Without going into the question of the difference between a wall and a fence, I would suggest that, in a covenant such as quoted above, "fence" has to mean a man-made boundary feature which is not a wall.

Anyway, neither point is a problem here as the covenant is unenforceable.

[Plumbob]

Thanks for your replies, sorry if it seems contentious. Not meant to be. The fact is that I need to establish a boundary between 2 properties. I have the deeds which state the plot width as "fourty feet" and the inverted "T" notes that the boundary is my responsibility re the "fence etc"

If there is a dispute over where this boundary is .................and yes I know its a potential minefield, the situation is that at 40ft the soffit and gutter of this 100 year old property are paralell to the farthest edge of a thin privet hedge, so were I to use this measurement it may mean the hedge is mine for its whole width. The fence is in there somewhere. If this is wrong, my house or part thereof, is in the neighbours property.
Can a RICS surveyor be given the details and advise me ??
Thanks

[Lawcruncher]

So the real problem is the position of the boundary. The clause you quote does not help find it.

When it comes to boundary disputes the problem with hedges is that you do not know on whose land they were planted and when, and that they may be allowed to grow more on one side than the other. The best you can say, which is of little help, is that the boundary is somewhere in or alongside the hedge. However, what may help on this case is that there was probably at one time a post and wire fence. If there is any sign of it or the fence posts that is a plus. It will definitely be a plus if when you measure from any old post to the other side of the garden the distance is 40 feet - so long as there is no doubt about the position of the opposite boundary.

Having the distance noted in the old deeds should not be taken as definitive for various reasons. If asked to establish the position of a boundary a court will take into account various factors, giving each such weight as the court consider appropriate. The factors include not only the description in or plan on any old deeds, but the lay of the land and the history. Given all the problems associated with establishing the position of boundaries, a surveyor cannot magic one up with insufficient data even if he brings with him some sophisticated equipment. If you are going to the expense of employing a surveyor you need one who is really clued up on boundaries.

For further information see these threads on Garden Law I posted a while back:

http://www.gardenlaw.co.uk/phpBB2/viewtopic.php?t=2247

http://www.gardenlaw.co.uk/phpBB2/viewtopic.php?t=3149

https://www.gardenlaw.co.uk/phpBB2/viewtopic.php?t=6243

For really comprehensive information this is the site to go to:

http://www.boundary-problems.co.uk/

[Plumbob]

Lawcruncher, many thanks for your valuable input. I will post a pic of the said hedge as soon as I can and you will see why I hope to be able to sort this out..
Thanks agin

[Plumbob]

[Lawcruncher]

The pictures are not really telling me anything. What may help is if you go on Google Earth (bird's eye view) and get as close as you can showing your own and the neighbouring garden and then click on "print page" to save the image.

Why do you need to establish the boundary?

[SouthernDave]

speaking as a Chartered Land Surveyor…
Your title plan is horrible. Luckily Land Reg is tightening up on the rubbish drawings they used to accept, but this doesn’t help you.
ignore the plot width of 40ft, thats not going to help you as quoted dimensions are useless in boundary demarcation unless an accurate drawing accompanies that length.
Lawcruncher provides some good advice. Personally, I would never buy a property where the boundaries are not clearly defined by a fence. Hedges are a nightmare as no one ever agrees where the boundary is located. look for some old fence posts inside the hedge. You’ll be surprised what you can find if you have a really good look. The hedge grows and the fence perishes but can sometimes be found and the line used to re-erect a fence.
You have to consider that the original boundary line will be gone (if you can’t find any old posts).
a boundary can be anywhere two parties agree it. So put the kettle on, and invite your neighbour around for a chat. Easy thing to sort out between two men.
boundary disputes, as you know, are horrendous. My advice is to get it agreed with the neighbour and erect a fence immediately once agreed.