The Gazette 1972

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

Minor objections to party-wall structure Consistent with his conclusive preference for the party structure solution, the writer has always adopted it in the drafting of conveyances and transfers of new dwel- lings in many parts of the country. He has met mild opposition in some instances, largely based on the fact that it represented a departure from the more usual sole ownership usage in the area, and certain objections have been voiced to it. One such which is worthy of consideration is that such a regime may inhibit a pur- chaser's choice of fencing to his personal taste. Suppose, for example, that a 2 or 3 foot high post and wire fence is provided and expressly made a party structure, and a purchaser desires to replace all or part of it with a 7 foot 6 inches high interwoven fence. Now, say the critics, he is prevented from doing so by the party wall provision. In fact this is not so. If, for example, boundary a-b in the diagram is stated to be a party structure, and con- sists of the low fence just described, A and B, owners of houses 1 and 2, can agree to replace it with the high woven fence just described so that that becomes the party structure in shared ownership and subject to such repairing obligations and rights as affected the original structure. If, say, 1 objects (as with an increased main- tenance burden he might well choose to do) then B just has to erect the structure within the confines of his own garden, setingt it far enough back to gain access to both sides for maintenance. However, that is no worse a position than will face him if, for example, he wishes to have such a high fence along boundary a-b and by "the luck of the draw" boundary a-b, under a sole ownership regime, belongs to house 1, not to his house. If A solely owns boundary a-b, moreover, he may be less willing to have it replaced by the higher structure than if a-b is party, so that B must bear his share of responsibility for the new fencing he is keen to erect. Secondy, there are undoubtedly instances where one party has a much greater interest to be served by a boundary structure than another. For example, to revert once more to the diagram, if A the owner of the detached dwelling house 1 decides to sell off part of his large garden and it is on that land that houses 2 and 3 are to be built then he will possibly insist with some particularity on the nature, size and construction of a wall on the boundary a-b so as to protect and perpe- tuate his privacy. He may well insist on the purchaser building such a wall, ownership to vest in him (1) once it is built. This is undoubtedly a case where the wole ownership of a-b is determined other than by chance. Even so, in so far as a structure of such dimensions and construction as to provide privacy for A must ipso facto provide privacv for B the owner of house 2, the party- wall solution, given its proper framing to impose repair- ing obligations on both parties, in fact provides no less

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Footpath

satisfactory a solution to the privacy problem and retains the other advantages discussed above. Thirdly, there are specific cases where the burden of ownership, with concomitant liability for collapse or pf repair to prevent collapse, dictates a particular choice of sole ownership. This can be both a marked and a tricky problem where a wall is in any way a retaining wall- It is not suggested that a party structure solution would be ideal in these circumstances; indeed, what is urged is that it is a better device that the sole ownership on a random choice basis in the generality of cases where no special circumstances point to a considered and specific choice of sole ownership. Drafting of party-wall clauses Fencing covenants are positive covenants, of course, and hence not normally binding on successors in title of the original parties (for which unstartling proposition Austerberry v Oldham Corporation [(1885) 29 ChD 750] is an authority if one be really needed). Not the least advantage of the party structure provision is that repairing obligations in respect of such structures may be rendered enforceable against successors by reliance on the mutuality principle exemplified by Halsall v BrizzelX ([1957] Ch 169) because each co-owner of the party structure enjoys rights against his co-owner so he must perform his obligations to that other. For a long time party structure clauses based upon the Ency- clopaedia of Forms and Precedents model, that seem- ingly most often followed by solicitors [understandably» in view of the common editorship, the same wording ij found in Kelly's Draftsman], provided that such and such a structure should be "a party structure and. main- tained and repaired accordingly". This attempt to 154