Fence Responsibility – Business and Domestic

Are you required to erect a fence?

You are generally not required to erect a fence around your property. In summary the guidance is:

• In the UK, you are under no legal obligation to erect a fence for the vast majority of boundaries.
• There are legal requirements where you must fence your boundary off.
• Local planning authorities can apply various fence restrictions. These regulations are tighter in conservation areas.

There is little difference in boundary fence law between business and domestic land holders. In terms of planning there are aesthetic differences as a residential setting is completely different from an industrial one. For example you will not normally be permitted to erect a 4 meter high galvanised fence around a bungalow.

Where are you required by law to erect a fence?

In the UK there are various areas where you are required by law to erect a fence. The law varies depending on where you are located in the UK:

• For roads, paths and building sites adjacent to highways: Highways Act 1980 for England and Wales or Roads (Scotland) Act 1984.
• Around mines and quarries in use or abandoned: Mines and Quarries Act 1954.
• To keep livestock in their fields: Animals Act 1971 for England and Wales or The Animals (Scotland) Act 1987.
• Land next to railways: Railways Consolidation Act 1845.

In these instances it is always best to consult a specialist contractor who will know the specification that will be required. Railways are responsible for the maintenance of their own fences.

Outside of these defined fencing requirements there is a second level of legislation that is more loosely defined. The aim of this is that if there is a risk of harm in crossing the land the landowner erects a suitable boundary. This is defined in:

• The Occupiers’ Liability Act 1957 in England and Wales and the Occupiers Liability (Scotland) Act 1960.

Who owns the fence?

If the fence defines the boundary of the land it generally is defined in the title deeds (sometimes referred to as the property documents), but not always.  Many fences are erected by the landowner inside their land. If so then there may be no record of the fence responsibility in the title deeds.

If planning permission was obtained for the erection of the fence, then this will be recorded. When this is so, a search with the planning authority against the land will identify this. It would be very unusual if a fence that is on your land is not your property.

If you are unsure then the easiest way to find out is to ask your neighbour(s).

Who is responsible for maintaining a fence?

When the fence is solely on your land, then you will normally be singularly responsible for its maintenance. If the fence defines your boundary then its maintenance will be defined in your title deeds. This can fall three ways:

• You are solely responsible.
• Your neighbour is solely responsible.
• You are both jointly responsible.

Fence responsibility can become more complicated when you have a number of different boundaries with different neighbours.

The standard of fencing required may also be specified in the title deeds. For example this may be stock proof or deer proof.

In many title deeds the drawing has a letter T identifying the boundary liability. If this is on the inside of the drawn area the responsibility lies with that landowner. Where there is a T at either side (which looks like an H), then the maintenance is shared. The registered plans can be found at the HM Land Registry for England and Wales or the Registers of Scotland.

Where can I find my title deeds?

If you have access to your title deeds then you can check these directly. These may however be held by your solicitor, or if your mortgage is not fully paid off these could be with your mortgage lender.

When your title deeds do not refer to the rights to use and maintenance of a boundary fence, you should obtain advice from a solicitor.

If there is no reference in the title deeds to maintaining the boundary then the landowner does not have to repair their fence. But this does not remove the liability that would occur if a badly maintained fence injures a person or damages property. In this case the owner may have to pay out damages.

Can you buy out the other half of a shared boundary?

If your boundary is shared you may have the option of buying this fence responsibility from your neighbour. If you do pursue this then you must go through formal legal channels. This is because it will have to be amended on your title deeds plan to make it officially binding.

What if I cannot find any ownership in the title deeds?

There are two course of action you can follow:

• You can undertake a further search with the registers on the title deeds of your neighbours and on unregistered land.
• Make a new boundary agreement with your neighbour(s). Like buying out your neighbour’s share of the boundary above, this will require formal legal recording against both your deeds.

Is the owner obliged to repair the fence?

Unless the title deeds say a boundary has to be maintained, there is no legal requirement for it to be repaired by the owner. If the fence’s bad condition contributes to someone being injured then the owner may have to pay damages.

When an owner refuses to fix a fence there is nothing to stop you erecting a new one next to it at the edge of your property.

How high can a fence be?

There are many factors that may limit the height of your fence and indeed what it can be made from. The simplest way to find this out is to contact your local planning authority and inform them of where you stay.

Where there are no restrictions, fences in back gardens can be up to 2 metres above normal ground level. For front gardens this is a maximum of 1.2 meters. If you need to go higher than this you will need planning permission.

If I erect a fence do I have to put the good side of the fence facing the neighbour?

There is  no law that says the “good” side (for example, the side with the smoother wood) of the fence should face your neighbour. It is just a common courtesy. If the fence is on your land it is completely up to you what it looks like.

Likewise if your neighbour is putting up a fence on their land and they are paying for it themselves then it will be to their choice of colour, style and height.

Can I attach something to my neighbour’s fence?

Your neighbour’s fence is their property. This means that you can only use this with their permission. You must not:

•  Hang things from the fence.
•  Paint, varnish or stain the fence.
•  Train plants to climb over the fence.

If you do anything that could potentially cause damage to the fence then you may be legally liable for costs to repair it. Always seek your neighbour’s permission first.

What can I do about my neighbour’s offensive fence?

If your neighbour owns the fence and it is on their land nothing, unless it poses a health and safety risk. When this is the case the best way to pursue this is with your local authority or council.

You can however landscape the area with freestanding shrubs or a hedge to hide it from your view. Alternatively you can erect your own fence beside your neighbour’s fence.

Who can help to resolve a boundary dispute?

It is always best to try and reach an agreement with your neighbour directly. The Land Registry and Registers of Scotland have useful information on this. Local planning may also be of help. If all else fails you may be forced to seek legal advice, but land disputes can become very costly and complicated.

Can my neighbour put up a fence without my permission?

Yes if it is inside their property and there are no planning restrictions. However they are expected to give you 30 days written notice, so you can plan for any disruption this may cause.

If the fence is on a shared boundary, then there needs to be a joint discussion. Normally the cost of the fence in this instance would be shared equally.

What happens if my neighbour’s fence falls onto my land?

If this happens then your neighbour is responsible for the costs of removal, and potentially for any damage done.

How secure can I make my business or domestic fence?

The general rule of thumb is that your fence must not be designed to injure any individual. If your fence injures anyone you can be liable. When you add intent to that then that injury may become a criminal act. At a minimum level this would be a breach of health and safety legislation.

There are a number of specifically designed anti climbing fencing solutions available. You can get advice on this from any reputable fencing supplier or contractor.

Are there special responsibilities for farm, forestry and rural fencing?

There are special requirements placed on rural land holders. These can be summed up in terms of duty of care and restricting animal movements.

The ownership of boundary fencing is no different than outlined above. But there is:

• A “strict liability” placed on owners of animals in terms of any damage they can cause. This is by their escape or by injuring a person crossing the land.
• A duty of care that the owner has in providing fencing that will not damage their animals.

It is common for individual blocks of forestry land to have responsibilities defined for deer proof fencing. Where this is between forestry blocks the responsibility is normally shared. When forestry meets agricultural or domestic land this is usually solely the responsibility of the forestry land holder. There are special restrictions made on the constructions of deer proof fencing in areas where capercaillie and black grouse inhabit, so it is always advised to contact the local forestry agency.

Are there special responsibilities for railway fencing?

Legally fence responsibility lies strictly with the railway infrastructure operating company, be that Network Rail or a steam preservation charity.

The purpose of these fences is to keep the rolling stock and railway free from risks. These risks are generally from:

• Animal and human trespass.
• Theft.
• Vandalism.

The operating companies are responsible for regular inspection of the fences and their maintenance. The type of fence erected is risk assessed for its suitability.

If you notice any issues with a railway fence, report it immediately to the operating company. They will assess it very quickly as lives are at stake.

And finally

Fence responsibility is an area of law that is regularly the cause of many neighbour disputes. Understanding this area is always of benefit, so that a potential issue can be avoided. So plan ahead, know your rights and keep calm.

Find out more about fencing from our articles:

• 12 Reasons your business needs a security fence
• Types of security fencing
• Types of school fencing
• Timber fencing
• Also: Ever wondered: What is the difference between a landscaper and a gardener?