Navigating the complexities of boundary maintenance when buying a new home

Posted: 10/07/2024

‘I have moved into my new house, but I am not sure who is responsible for maintenance of the boundary. What do I do?’

It is not unusual to receive this as a call from the buyer post-completion when, for example, the fence at the rear of the property collapses (think of the storms last year) and the buyer has no idea of who is responsible for fixing it. It is very important therefore to understand the boundary maintenance provisions prior to the purchase.

The answer can be found by checking the title deeds and within various pre-contractual documents, as well as by raising additional enquiries. Unfortunately, there is no general rule as to which boundaries a property owns, and it is advisable to go through one or all of the following (one step at a time!):

Check the seller’s replies within the property information form (also known as form TA6)

• This is mainly relevant prior to committing to the purchase, but also can be referred back to post-completion (see reply 1.1 (pre-2024 edition) or reply 15.1 (2024 edition)). The seller is asked to reply, when looking towards the property from the road, who owns or accepts responsibility to maintain or repair the boundary features (fences, hedges, garden walls or any other physical feature) on the left, right, rear and front. This would reflect the existing position, as in practice, most sellers will have not checked their legal position before providing the replies. 
• The seller would also be asked to comment whether any of the boundaries are irregular; or whether there has been any movement of the boundary feature within the last 10 years or during the seller’s period of ownership, if longer. This could be an indication that there is an up to date arrangement in place that has been recorded/entered into with the adjoining neighbours. If any information has been revealed, it is advisable to follow this up by way of raising enquiries. 
• Look out for any party wall documentation (reply 1.6 of form TA6 pre-2024 edition or 15.6 2024 edition). There could be another indication as to the shared maintenance, and whether there has been any formal/informal agreement put in place with the neighbours who have a shared wall between them. Note this would not be recorded on the public register, so it is only the property owners who would have such information. Always ask additional questions if unsure.

Check your legal position, ie title deeds

This can be done either before or after completion of the purchase. You may wish to go through the relevant entries on the property register and, most importantly, charges register of title. Have a discussion with a solicitor to fully understand your legal position.

Entries on the title property register (register A) and the charges register (register C) may reveal some useful information by reference to title documents (conveyances, transfers, deeds of grant etc). The language used by the Land Registry is not the most helpful and can be tricky for a lay person to understand, but look out for wording such as ‘subject to the matters’ and ‘contains restrictive covenants’.

Then try to obtain a copy of the document referred to on the register. Quite often the full copy of the document is not available at the Land Registry, but the Land Registry would provide a relevant extract on the register itself. Read the wording carefully. Are there any provisions that relate to the boundary maintenance? For example, it may state: 

The Purchaser shall within two months from the date hereof erect and for ever after maintain a post and wire fence which shall be proof against cattle along the side of the piece of land marked "T" within the boundary.’

There are often provisions attached ‘to maintain’, ‘to erect’, ‘to repair’, ‘to keep’, that require the owner to take some positive action to comply with such covenants. For the purpose of this article, it has been assumed that these obligations (albeit of positive nature) are enforceable, and you would be required to comply with these covenants. It may be necessary to discuss with a solicitor when positive covenants are not enforceable, or when the enforceability can be disputed.

Another example:

‘Forever after to repair and keep the retaining and other walls fences and gates erected along or within the boundaries of the Property marked with an inverted T on the Plan in good and substantial repair order and condition including the renewal and replacement thereof as and when necessary.’

An inverted ‘T’ means that if the marking ‘T’ is inside the land that affects the property, then there is a good indication that you will be bound by these covenants. Therefore, you will be required to maintain that boundary.

Note not all boundaries will have such ‘T’ markings indicated on the title documentation. So, there could be some boundaries that have no legal obligations attached to them, and there is no other reference as to their maintenance on the title documentation. This means that these boundaries are simply not affected by the covenants contained within the title documentation. It is advisable to carry out further investigation to establish who is responsible for the remaining boundary maintenance.   

Check the legal position of other properties

It should be noted that the title register only reveals entries relating to your property and it would not reveal the legal position of the adjacent property owner. So, it is advisable to check the neighbour’s titles which immediately adjoin the property. If required, the investigation should extend to checking the titles of other properties, which may reveal useful information.

This is not going to be a quick and easy exercise as it may involve a detailed search of the title entries and various property documents. It is advisable to appoint a solicitor to assist with this. Most likely there will be cost implications so you may wish to budget for this accordingly.

‘I have checked the title documents but there is no indication of who is responsible. What do I do?’

It is important to investigate whether any informal agreements are in place. Before completion of the purchase, it is advisable to raise additional enquiries, for example, if the seller’s replies to form TA6 are unclear or ambiguous. If the purchase has already concluded, then it may be possible to approach the owners of the adjacent property and have an informal discussion (on an amicable basis) to clarify the mutual understanding as to the maintenance of the boundary. No one would want to start on the wrong foot and have an argument with a neighbour shortly after they have moved in – this is to be avoided if possible. 
Ideally, any agreement reached is recorded in writing and subsequently filed with the Land Registry, so that future disputes are prevented (although it does not have to be).

If you mutually agree to declare who owns a boundary feature, or who is responsible for maintaining it, embed this in a formal agreement. People often change their minds, so be quick. This can simply be recorded in a document called a ‘boundary agreement’ by reference to a property plan. The plan utilised for this purpose should reflect the accurate position as on the ground. It is advisable to instruct an expert surveyor to draw up the plan since they have the technical knowledge to do so. It is unlikely that the Land Registry would accept any handwritten notes/drawings/sketches, so these should be avoided.

The boundary agreement is also a useful tool to rectify the boundaries where the record of the boundary lines on the public register does not accurately represent the true position as on the ground. You can mutually agree to adjust the extent of boundaries and record this agreement with the Land Registry. There will be a small fee for this.

No doubt you would want to consider the time and cost implications before proceeding with the formal agreement, and filing of it with the Land Registry. It is also advisable to take legal advice before pursuing this option.

Do nothing

For those who are not interested or simply have no concerns, doing nothing is also a reasonable solution but, understandably, would make one none the wiser. The ‘wait and see’ approach is often used and there is nothing wrong with that. As long as there is no dispute nor any other significant concern, then the matters can be left as they are. Do not poke the bear, as they say.

Conclusion

Distinction should be drawn between boundary ownership and the responsibility for boundary maintenance. It should be emphasised that there is no general rule as to which boundary a property owns, and owners are encouraged to investigate the responsibility for boundary maintenance using one or all of the options above. 

This article is an extended version of an article previously published on 20 June 2024, on MoveTo.co.uk.

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