Storm Darragh blew my garden fence down but my neighbour is refusing to pay their share: What should I do?

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I woke up on Sunday morning to find four fence panels bordering the left hand side of my garden had been blown down as a result of Storm Darragh. 

I have asked my next door neighbour to split the repair job fifty-fifty, but he flat out refused saying it isn't their responsibility to sort it out or pay for.

First, he tried to claim that because it's on the left hand side of my garden (and the right side of his), it's my responsibility.

And then, he had the cheek to say that it wasn't his problem because I fixed the fence last time it blew down several years ago and therefore the new fence is my fence, not his. 

Is it true that if I replaced the fence panels a few years ago when they blew down - because my selfish neighbour refused to help that time as well - that I am now legally responsible? If not, is there anything I can do?

Fencing battle: Boundary fence repairs are a bone of contention between many a neighbour

Ed Magnus of This is Money replies: You're likely to be one of many to have woken up to a collapsed fence thanks to storm Darragh.

Storm Darragh brought with it winds close to 100mph in some areas and left a trail of destruction in its wake.

You'd hope for a moral and reasonable neighbour for moments such as this. Unfortunately, it appears your neighbour possesses neither of these qualities.

Whatever their motive, whether it be financial or the fact they simply don't care about there being a fence, it may be futile trying to persuade them to cough up their share.

You're certainly won't be the first or last person to take issue with your neighbour over a garden fence. 

'Love thy neighbour as thyself,' is all well and good, but as the poet Carl Sandberg once added – just don't take down the fence. 

Over the years we have had emails about a neighbour stealing someone's garden. Another person asked if they could put up a tall fence to stop their neighbours from overlooking them.

And one reader emailed in about their neighbour's dog jumping up at their fence so relentlessly that it was in danger of knocking it down.

For expert advice on your situation we spoke to two legal experts, Mike Hansom, a consultant for property litigation at BLB Solicitors, and Chun Wong, a partner at Hodge Jones & Allen.

How to establish who is responsible for the fence? 

Chun Wong replies: There are no standard presumptions for responsibilities of boundaries – it is a common misconception that you own and are responsible for fences on the left.

As a starting point you can check any copies of title deeds or obtain an official copy of title and title plan from the Land Registry. 

The title documents (like the title plan) may contain covenants setting out who is responsible for the upkeep of a boundary fence.

If there are T marks on the boundary line then that can show who is liable for maintenance – if there is a T mark on both sides of the boundary line then this is a party boundary and maintenance is a joint responsibility.

If there is no indication on the title deeds or title plan as to who is responsible, then you need to consider if someone has assumed responsibility for maintenance. For example, by previously paying for the upkeep of the fence.

Chun Wong, a partner at Hodge Jones & Allen,says it is a common misconception that you own and are responsible for fences on the left

Mike Hansom adds: In modern housing developments, deeds often confirm responsibility for maintaining a boundary feature, such as a fence with a T symbol pointing into the responsible person's garden. Joint responsibility may appear as an H shape straddling the boundary line. 

However, in English law, such positive obligations are often enforceable only between the original parties, i.e., the developer and the first buyer.

Once sold, the right to enforce compliance is usually lost unless a Building Scheme entitles neighbours to enforce each other's covenants or the buyers sign deeds of covenant whenever there is a change of ownership.

If they previously replaced the fence, is it now their responsibility? 

Mike Hansom replies: If you replaced the fence last time, it is your fence, and unfortunately, your neighbour may be correct that they have no legal obligation to contribute. 

Remember, if this is a departure from what the deeds say, you must mention it in your Property Information Form should you sell.

Chun Wong adds: In the event that you decided to pay for the maintenance of the fence yourself, it could be argued that you have assumed responsibility for maintenance and therefore ownership of the boundary fence. 

You should make clear if you decide to make any payments for repairs of the fences this is done on a without prejudice basis as to who is in fact responsible and you reserve the right to seek 50 per cent of the costs from them. 

Mike Hansom a consultant for property litigation at BLB Solicitors says If you replaced the fence last time, it is your fence and may now be your legal responsibility

What if they had not previously paid for the upkeep? 

Chun Wong replies: If no one has assumed responsibility you could argue it is a joint responsibility.

If your neighbour is jointly liable to maintain the fence and does not do so, you can consider bringing a claim to seek recovery of their share of any costs incurred in doing the repairs yourself.

What should they do?

Mike Hansom replies: Living next door to an unreasonable neighbour is frustrating, but you should proceed with care because even if you are legally right, you must disclose any neighbour dispute when you come to sell.

It can assist with negotiations if you can point to a maintenance obligation in the deeds.

Even if the deeds are supportive, it is notoriously difficult to force neighbours to act because legal proceedings usually far exceed the cost of repair. 

Galling though it is, the most practical alternative is often to replace the panels yourself.