Boundaries and Fences
Boundary Fences - Common Law Presumptions
Common Law presumptions may help you determine where your boundaries lie, but before relying on them it would be sensible to check your Land Registry documents and those of your neighbour. It is unsafe to rely on common law presumptions, as these are based on decisions of the courts. Such decisions are unlikely to be followed if there is evidence to the contrary, such as would usually appear in your documents.
There are not yet any common law presumptions relating to boundary fences in this country, but as fences vary considerably in type, there are a number of conventions and practices that have arisen in the fencing trade that are normally followed.
The presumption that you are the owner of, or responsible for, the boundary fence on the left and your neighbour the one on the right does not apply in England and Wales, although it does in Ireland.
Notable conventions may apply as shown below, but you should be aware that these conventions may be overridden by evidence to the contrary, and may not have been observed when the fence was erected. You should always obtain a Boundary Search and read through all the documents before relying on a Common Law presumption or building convention. A Boundary Search contains all the available registered documents for each property. This includes Title Registers, Title Plans, Conveyancing Deeds, Deed Plans and, where applicable, Leases and Lease Plans.
Fence with Struts on one side only
The convention is to place the side of the fence having the struts showing, facing into the owner's garden, with the main fence just inwards from the boundary. The reasoning for this follows a good citizen's care not to infringe on the understood boundary position at the time of the fence erection.
Fence or Railings with Piers
Piers will usually have a footing, e.g. a slab of concrete buried below ground. This would usually be buried partly under the adjoining property, which is the position anticipated in the Party Wall legislation. The wall would normally be erected so that any protruding pier above ground would be just within the owner's boundary as understood by the parties at the time.
Welded Wire Mesh Fence
The established convention on erecting this type of fence is to site the posts into the ground so that the far side of the post is within the owner's property, i.e. the owner's side of the property boundary.
If the posts have a support hole, for example, to take a horizontal support beam for the wire, the support beam would be placed through the hole of each post and the wire clipped on the near side thereof.
Wooden or Concrete Posts with Wire Fence
This type of fencing is more commonly found in farmland and other rustic properties. The convention is to place the posts into the ground so that the far side is within the owner's boundary. If the posts have a hole in the centre, as is normally the case, the wire would be stretched through the centre of each post. Wooden posts usually do not have a hole in the centre. In this case the wire would normally be clipped on the outside face of the posts.
Fences with barbed wire or similar will need to be carefully maintained in order to comply with Section 164 (1) of the Highways Act 1980, where the same borders onto a public highway, which may be a road, a pavement or a footpath. The barbed wire may be so low that it could cause a person to be injured simply by his walking along the footway.
Security Fence with Overhanging Wire
Security fencing, or special wildlife fencing that has overhanging wire is normally constructed so that the whole fence, including the overhanging parts, are within the owner's property, i.e. so that none of it encroaches onto the adjoining land.
Animal and pest control fencing may be placed within a boundary fence (so that there are 2 fences), to either keep animals in or to prevent them coming in. The type of fencing differs according to the animal it is designed to keep in or out, e.g. otters, newts, deer, badgers and rabbits. Care should be taken not to confuse it with the actual boundary fence.