The Gazette 1972

Ownership of Fences —The Conveyancer's Choice h J. E. ADAMS, LL.B. (Reprinted by permission from the English Law Society "Gazette") PART I

The basic choice between sole ownership and party structures If the desirability of a clear definition of ownership wherever the opportunity presents itself is accepted, the choice is simply between sole ownership to be attached to one or other of the adjoining properties and party structure provisions. The writer is unashamedly a party- structure man; this seems to be a minority view on a national basis, and is undoubtedly much influenced by the bulk of his practical experience being in an area where the usual interpretation of the local Improvement Act, 1847, already mentioned has been (possibly on a communis error facit ius basis) to treat all boundary structures of uncertain ownership as party structures. Even given the predisposition towards the party struc- ture solution thus occasioned, however, the case for it, as against the alternative, seems overwhelming and it is accordingly with something of missionary zeal that it will now he presented. The fairness test One reason for preferring the party solution to that of sole ownership is the arbitrariness of the latter. Consider the diagram and the position of the owner of house number 2. The rule of sole ownership will give him ownership of either boundary structure a-b or of c-e and f-d; if ownership of the structures is, on balance, a burden he will prefer the latter solution but if there is, on balance, a benefit (a point further discussed below) he will prefer the first solution and the owner- ship of a-b.

It is frequently said that far more difficult, and some- times bitter, disputes arise over the ownership of fences ar >d other boundary structures than over property dis- putes of much greater substance and it is certainly the ^Titer's experience that more uncertainty surrounds the •ssue of fence ownership then of any other matters a scertainable in the normal examination of title. Few disputes are litigated with the tenacity that was mani- fest in Jones v Price ([1965] 2 QB 618) but they all c ause disquiet to the parties and not a little dissatis- faction with the legal profession's failure to clear up the doubts. Inspection of boundaries lead to presumptions of fact With existing properties where, as is regrettably so often the case, the deeds are silent, recourse has to be l a d to the usual presumptions. In addition to the well- known rule for wooden fences that the supporting Posts are normally on the inside, so that prima facie toe fence belongs to the party on whose side of the tonce the posts are placed [a rule denied to exist by yfr. Powell-Smith in his Law of Boundaries and Fcnccs '1967), pp. 67-68], it is frequently the case that inspec- tor of the boundaries will lead to presumptions of act —if a wall separating two urban properties, White- ac re and Blackacre, is constructed of materials and in a st Vle identical with those of, say, Whiteacre, it is a far conclusion that it was built contemporaneously with a n d belongs to Whiteacre rather than belonging to -fackacre with which it shares neither common feature. Occasionally, moreover, there may be local legislation to-g. the notoriously ill-drafted Bristol Improvement ^ct, 1847) which establish local practices or rules. Nevertheless, it is probably the case that in a sub- s tontial proportion of cases, perhaps even in a majority, . 1 Urban properties, ownership of and responsibility for )Q Undary fences is indeterminate. There is, however, a growing tendency for specific provision to be made for c matters in conveyances of new properties, or in He division of larger units into single entities, and it is ^ t h the choice of possible solutions that this article is toainly to concern itself. For rural properties there ^ ee ms a lesser incidence of uncertainty; quite apart r °m what citified conveyancers regard as the rather 9 u aint and endearing hedge-and-ditch presumption ,v yhich produces a result quite the opposite of that toch many of them would instinctively expect—"sur- V the hedge is to stop your cattle falling into someone ,Se s ditch?"), the need to have a clear understanding j where responsibility for each hedge may fall is . Piously of greater intensity and practical significance to the rural economy and has focused attention on the e sirability of a clear ascertainment of ownership which a s been given effect to by generations of conveyancers.

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Consider now the position of house number 3. If number 2 owns c-e and f-d, he will own g-h (the wall 113