Boundaries and fencing

Press, 15 August 1984, Page 30

Boundaries and fencing

From time to time, ouestioris are asked of the Real Estate Institute about problems of property boundaries and fencing. Until the establishment of the Fencing Act 1908, the common law situation was that a landowner was under no obligation to fence his property, either from the road frontage or between himself and his neighbour which, in fact, could be done by mutual agreement. The act clarified the situations that lacked sufficient agreement and made provision for adjoining owners to share the cost of fencing. In 1978, a new Fencing Act came into the statute books and this, among other things, clearly established the definitions of such terms as “fencing agreements,” “fencing covenant” and “adequate fence.” The 1978 Act, however, did not alter the rights of landowners to make their own agreements on fencing arrangements. In fact, such agreements may be registered under the Land Transfer Act 1952.

The Fencing Act 1978 establishes the liability of occupiers to contribute to the cost of fencing. Such contributions are to be in equal Rrtions, and this applies i repair and maintenance of the fence as well as to its erection.

It also lays down proce-

dures that must be complied with when one landowner wishes to call on another to establish a fence.

The Act lays down times for making the various moves under the law and stipulates that where agreement cannot be reached the matter may be determined by a District Court Judge. A boundary is, in fact, an abstract thing serving to divide two adjoining pieces of land. It is an imaginary line and does not need to be marked by a fence or other structure. Boundaries denote a Kcal aspect of land r than an interest and are defined according to the techniques of surveying. They are made, in most cases, by survey pegs and then translated on to a plan The survey plan is lodged at the Land Transfer Office where it becomes known as' a “deposited plan” (D.P.). It is possible to have different kinds of boundaries, for instance, rivers, lakes and foreshore. Where a river is tidal at its mouth, then the bed of that part of it belongs to the Crown.

A lake surrounded by a particular parcel of land will be vested in the registered proprietor of that land; but if the lake is bordered by more than one property, then ownership can prove difficult to resolve.

The foreshore is the land which falls between the high and low water mark of the tide, and it belongs, in essence, to the Crown.

Because sea and river boundaries are not fixed, there is always the possibility that they will change. For this reason a parcel of land bounded by river or sea may be termed a moveable freehold. If natural movements of river and sea create a greater area of land for the landowners, then it belongs to the owner as an accretion.

But erosion is a different matter. Just as accretion occurred because of water receding and leaving more land, the land washed away through erosion is the owner’s loss.