The Accidental Smallholder Forum
Smallholding => Buildings & planning => Topic started by: inmcdonalds on November 06, 2015, 01:35:48 pm
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Hi
We have a 4 acre field. It has a fence around it and 2 gates. The gates are rotten and falling to bits to some extent. They basically need replaced. The landowner for whom this is a mutual boundary fence is stating that he will pay 50% to replace the gates with just a fence. The reason, I expect, is cost, but his justification is is that he states there is no right of access across his land. Our deeds do state though that we retain rights to `use for the purpose of access to any part of the subjects...all existing roads and ways through any part of the whole lands of the estate (ie the bit owned by the neighbour).` Therefore I`m not sure he is justified in his reasoning.
The question is - regardless of the right of access question, does the neighbour have an obligation to contribute to a `like for like` replacement ie. replace the gate with a gate, or can they just put a fence in instead?
edit -we are in scotland.
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If you have access then surely he must replace the gates? Are you a member of NFU or CLA? They would be able to help.
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I would have thought that if its you that wants access - you will have to pay the whole cost of a new gate and fitting it.
Your neighbours would be less likely to complain then if you did enforce your rights as in your deeds.
Mess them around - they might just stack a pile of big bales in the access to be a pita.
Gates are only around £50 and with the fixings and posts call it £75 + a days work.
I'd bite the biscuit - renew it myself just to stay on their good side. You never know - when the fence falls down you may still then be on talking terms and get them to pay 50% of the fence line.
Dont fall out with neighbours - even though sometimes they can be a pain and have arms shorter than their pockets.
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Find what they drink - call over with a bottle of it and discuss it. - Always helps :)
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I drink Guiness, bring some over and discuss it with me instead
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Thanks all. I suspect the path of least resistance is the best one. However I will drop him an email just to remind him for the future that we have access rights and see if he wants to reconsider. And if he still digs his heels in i will do it myself.
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You could put a pair of strainers in where the current gate stands then just fence over them. This would make it easier if you needed to add a gate in future. Thats what weve done albeit on our own land.
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We have a shared fence with our farmer neighbour and it needs replacing.
The deeds say a joint responsibility for replacing it but I know he wont pay for the job or in fact that he will insist that he does it and we'd end up paying more for the fence than if the contractor came in and did it.
So I've decided that we'll replace the fence (to the standard that I want) and we'll pay for it just to avoid any hassle or agro from him............life is too short.
You could put a pair of strainers in where the current gate stands then just fence over them. This would make it easier if you needed to add a gate in future. Thats what weve done albeit on our own land.
This is a good idea!
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I see you are in the carse of gowrie like us. Wonder if we have the same farmer as a neighbour!! :)
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I see you are in the carse of gowrie like us.......
I've sent you a pm.
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You could put a pair of strainers in where the current gate stands then just fence over them. This would make it easier if you needed to add a gate in future. Thats what weve done albeit on our own land.
careful you don't lose your right of access if YOU fence across?
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id replace it yourself and try v hard not to fall out with the neighbour. youl need him one day.
his help in retrieving your lifestock that has escaped into his field,or for clearing the roads when you are snowed in is worth much more than a couple of hundred pounds for a new gate.
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Yes definitely not going to let him fence across as this would risk signalling we no longer have right of access.
Unfortunately he's not the kind of landowner who would help out with snowploughing or anything else, so I doubt I've got much to lose if I did pee him off.
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Work on him , put him on the crimbo card list and pay for the gate & yourself.
I'm guessing that it would cost you a hell of a lot more to try and enforce legal obligations that supposedly go with a shared fence set up than you doing it yourself..( That certainly applies here in the rest of the UK ). Claim for the costs off your small holders tax liabilities if you have any .
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Back to your actual question it should be like for like and I would certainly keep your gates if you want to keep your access rights.
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BTW - have you used the access? if not it might be worth using it now and then to re-enforce your rights? if you get complaints it would bring it out into the open and clear it up once and for all.
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don't underestimate a farmers ability or knowledge. definitely keep him on side. he may be gruff cos he fears what changes new neighbours will bring.
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BTW - have you used the access? if not it might be worth using it now and then to re-enforce your rights? if you get complaints it would bring it out into the open and clear it up once and for all.
But, please, give him plenty of notice that you are going to do so!
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What ever you do...keep in with your neighbour....and don't ever consider going legal .I have a dispute over who owns a ditch with the Mod .I initially booked an appointment with a solicitor..£200 per hour. before seeing sense .A relatively straightforward case was going to cost £500 to sort.
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Who now owns it Juliem ?
If it's not you and MOD ask for payment in maintaining the ditch tell them as far as you know it is their ditch & responsibility ?
I was told that boundaries are the thickness of the ink line drawn on the maps at the land registry .... question them & be prepared to pay up big time . Often on the older big sheet TF & 1921 editions of Parish maps it will indicate who is responsible for ditches .
These are sometimes found in the County's reference library ( England & Wales .
Then if you need to you try and trace any land sales involving the ground to see if any changes have been made tot he bounbdaries .
Don't do what a plonker who lived near to me did .. He tried suing the farmer who owned adjacent land , saying that the farmer had stolen 1 & 1/2 acres off his plot .. had he bothered to check his facts and seen the latest land registery maps of 1988 for the plot he would have seen the land being disputed on he Parish map was never his in the first place as the boundaries changed due to a land & property sale in the late 1970's .
The guy turned a bit screwy just after that and got put away for GBH & the attempted murder of his wife .
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It's a very long ditch straddling a few fields...but very important as it drains a lot of fields not in my ownership...and then feeds into land drains on the MOD site.(was 50 acres of green fields 2 months ago)
The Mod have agreed to improve the land drainage from the ditch (they are only legally maintained to maintain status quo to a water course) but they insist the ditch is mine.....I don't want it because of the maintainace and hedge cutting. Probably dug some 200 years ago.
Anyway will persevere myself...I will have to give them access and I'm wondering whether the mess and damage they make with their heavy machinery cleaning it out will be worth it. There are also a couple of drains from septic tanks going into the ditch.....what happens if they discover these?
The warehouse when it is built in 1 years time will occupy 30 acres and they have these attenuation ponds to deal with the drainage...all kinds of calculations to prove the local watercourse is going to be able to cope on the planning website....but you just know their will be flooding somewhere downstream.
They have just finished building a 5 metre bund across the field to me...which means I won't see any vehicles but the warehouse is 18 m high.
Anyway back to the point..concentrate on battles you can win and don't go legal.....before you know where you are you can find yourself paying out a lot of money and receiving solicitors letters only puts peoples backs up.
I live in the middle of nowhere but I've still managed to have disputes over boundaries with most of the neighbouring landowners...have generally found that they can be sorted with goodwill.
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the ditch on your side of fence is owned by your neighbour & the ditch on there side is owned by you
[/size]its the 1066 rule[/color]
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yes your right...but it's surprising how many people do not understand this. If I was dealing with a farmer they would understand that...but the MOD are another kettle of fish .My neighbour reckons the MOD when they buy land try to alter boundaries so they don't assume responsibility for maintainance of ditches/hedges.
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BTW - have you used the access? if not it might be worth using it now and then to re-enforce your rights? if you get complaints it would bring it out into the open and clear it up once and for all.
But, please, give him plenty of notice that you are going to do so!
If you have a right of way that's what you have. It is not a right of way to be exercised at the convenience of the landowner.. it is a right of way to exercise at your convenience. It is him that is inconvenienced by having a right of way through his land.
Please understand you have no obligation at all to give notice of use of a right of way.
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the ditch on your side of fence is owned by your neighbour & the ditch on there side is owned by you
[/size]its the 1066 rule[/color]
Not true---. Think about it..you go round the edge of your field digging a ditch to drain it...5 years later your neighbour now claims the land is his ? I don't think so.
It is a presumption that might be applied in the face of no other evidence during a court case (eg no accurate plans, no other boundary features, no other historic knowledge/evidence)..it is not a rule. Furthermore it would be evidenced by a mound of earth (dug out of the ditch at some point in the past) adjacent to the ditch, not a fence.
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Stufe35, it would be normal and common courtesy to inform your neighbour that you were going to make use of your access across their land.
He could then arrange his livestock accordingly.
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Stufe35, it would be normal and common courtesy to inform your neighbour that you were going to make use of your access across their land.
He could then arrange his livestock accordingly.
Surely if you are walking or driving through you would be shutting gates behind you?
Shouldn't bother livestock.
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Stufe35, it would be normal and common courtesy to inform your neighbour that you were going to make use of your access across their land.
He could then arrange his livestock accordingly.
If you have access rights you don't need to inform your neighbour at all. When exercising your right you should have due regard for your neighbour and stock and if your right is by foot then don't use a vehicle etc. Your right to access shouldn't mean he has to move stock around.
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Stufe35, it would be normal and common courtesy to inform your neighbour that you were going to make use of your access across their land.
He could then arrange his livestock accordingly.
My house has a half mile track across a neighbours land to get to it. Are you really saying I should give him a call every time I leave for work, go to the shops, or the postmans coming, or grannys visiting, or im popping home for lunch ?
I have to disagree with you . What is normal and common (and in fact a requirement of law) is that landowners should keep rights of way clear and available for safe use by the people that have the right to use them. No advance notice required.
This is not a discourteous expectation. Their advance notice that people will be using their land is written in their deeds.
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In answer to the original question on this thread, the laws for responsibilities for boundary features are different in Scotland to England, and im unsure of the rules. However where a gate is concerned I would imagine the conundrum could be solved by considering who would use the gate (ie pass through it)...and the answer to who should pay for it will be resolved.
I think your friendly farmer is trying to let the right of way across his land be lost and forgotten with his " kind " offer to block the gate with a fence.....watch yourself and seek a thorough understanding of your rights of way.
You cannot loose them by not using them...but you risk creating false expectations.
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As I'm a very new forum member, I'm coming late to this thread. Some good advice already given IMHO. However, I would suggest that, if you have wholly paid for the new gate/s, you send a letter to your neighbour (over whose land you have some access rights) explaining your choice of action: in other words, while you might have chosen to pay for gate repairs this time round, this should not be construed as meaning that you will wholly pay for any/all future costs on maintaining your common boundary.
I don't condone his/her position by any means, but I don't doubt there will be an irk at paying towards maintaining access to one's land to benefit someone else. HOWEVER, maintaining hedges/fences between your properties is more obviously to mutual benefit so I suggest you make some sort of statement to make sure you are not establishing some sort of precedent. (Obviously I do not know what your Deeds say, but one cannot be too careful wrt easements. In my experience, solicitors think no further than standard clauses for Deeds of Grant etc and really do not consider the psychology involved: servient property owners will, everytime, feel aggrieved when a bill comes their way for services that serve the dominant property more than them!)