The Gazette 1972

bounding the footpath); if, however, number 2 owns a-b, 3 ends up with c-e, f-d, and g-h. Consider house 9. If a "left-hand" rule (i.e. left-hand facing north) is applied he owns only i-j, but if a right-hand rule is followed, he ends up with i-j and k-l. Inevitably some uneveness must occur-it seems inescapable that 3 must end up with sole ownership of g-h and 9 with i-j [thus in building-estate assurances the writer invariably pro– vides that "the walls and fences separating the prop– erty from other properties on the estate now or fonnerly vested in the vendor shall (except where the same abut on any road or footpath) be party structures ..."] but these examples wil1, it is submitted, show that the choice of the party-structure solution reduces the disparity between one owner and his neighbour caused by an allocation of ownership based on a sole ownership rule. Thus under a party regime, number 2 part-owns a-b, c-e and f-d which is slightly more in total than owning c-e and f-d, but slightly less in total than owning a-b solely. 3 ends up with part-ownership of c-e and f-d and sole ownership of g-h; less than the left-hand rule would give him (c-e, f-d and g-h) but more than a right– hand rule would give (merely g-h). Inevitably a left– hand rule which penalises 3 benefits 9 and a right-hand rule reverses the advantage; a party rule irons out the more severe incidence of chances such as these. The same consequences follow for rear walls. If the land on which houses 1, 2 and 3 were built was in different ownership from that on which 4 to 8 were built, then it follows that the rear boundary will most likely have been constructed at the time of the building of the first block. Accordingly either boundary m-h will belong collectively to houses 1 to 3 or boundary !l1-r will belong collectively to 4 to 8 (8 seems bound to own h-r in any event). This, incidental1y, is one of the instances where walls and not fences are involved where the inferences from visual inspection of materials and style Illay point to the answer. However, if both 1 to 3 and 4 to 8 are being built on land in common ownership (particularly if they are built consecutively as part of the same development) it seems arbitrary to allocate rear fence ownership by the choice of those to one side or the other and party ownership is fairer. Moreover, with all the assurance of the devotedly amateur sociologist, the writer feels bound to record his experience that relationships with neighbours across the length of back gardens are less close than with those to either side, so that a party fence solution may engender fewer disputes than giving it wholly to one or the other. The repair test an incident of ownership As already discussed, ownership of fences may he important in respect of repair obligations. Whilst it is possible to divorce ownership and repair obligations by express provision, this would be rare and possibly inconvenient in practice, and normally repair obligation will be treated as a neces::ary incident of ownership. Of the vexed problem of whether there is a duty to repair more will be said later but the present argument in favour of party-ownership of dividing structures is founded on consideration of the mechanics of carrying out repair which is sought to be done. Under a system of sole ownership, the owner of house 2, assuming him to own fences a-b and b-d, may need to enteor the gardens of houses 1, 5 and 6) to carry out the work. It would not be usual to find express rights of entry (such as would be inserted in most rack-rent leases); there is indeed an implied right of entry where there is a party wall-see Jones v Pritchard a 1908] 1 Ch 630 at 636)-– and it would not be too difficult to imply a right of 1:14

entry where there was a duty to repair and even possibly a mere right to repair arising from bare ownership; in most cases it seems unlikely that a neighbour co~vinced of the need for repair would deny access for thiS purpose. Even so, this can and does provide practical problems. A, the owner of house 1, may not wish B, the owner of house 2, to enter until he A can plant o~t his seedlings that are close to fence a-b, whilst B IS anxious to do the work at once, during a few days off from work or something of that sort. Indeed, A's gard– ening may have proceeded in forgetfulness of the even– tual need for B to have access for repair of the fence at all, so that B can only repair the fence at the price of irreparable haml to A's treasured raspberry canes, strawberry plants or the like. Of such origins are neigh– bours' quarrels born! Under a system of party struC– tures each party normally deals with that face of the structure to which he obtains access from his own prop– erty. No-one thinks it remarkable that such a procedure should be tacitly and almost unthinkingly adopted for "live" boundaries, that is, for privet, box or other vege– table hedges-although agreement as to the height to which such "variable" structures shall be permitted to grow are not unknown; it seems quite suitable for brick, stone or concrete block walls, where pointing and an occasional colour-wash are required and it is o~ly with some types of fence that the concept of attendtng to the inside faces of all boundary structures may be somewhat impractical. Even there if one views the question of, say, creosoting a fence as being as much a matter of aesthetics as of economics-viz. of appe~r­ ance not preservation-the practical result is not .tn– sensible. On the issue of access for repair and decoratIOn therefore, it is submitted that the party structure solU d tion is the better course. The arguments just advanc~ apply, once more, with greater force to rear boundarIes even than to side fences. Boundaries may be burdens as well as benefits Whilst ownership of boundary structures is usually regarded, by virtue of the repair obligation, as a bur~en rather than a benefit-few people, it is thought, cherIsh such ownership for its own sake-there are circun~stance:; where, on balance, it may prove a benefit. ThiS happens when it consists of a wall, or even exception– ally a stout fence, capable of being incorporated into a garage, shed,· greenhouse or other. To revert to the example already used, if B, the owner of house 2, wishes to erect a garage his ability to use the wall a-b as part of the structure may be convenient, or may even be essential where it is a right squeeze to fit such a stru c " ture into a lay-out pattern not devised with mass c~r" ownership in mind. Under a system of sole. ownership, and if a left-hand rule applied in allocating ownershiP gives him wall a-b he will be able to use it-and morA over to prevent A, the owner of house 2, using it. right-hand rule will deny him that right-and give A the right to prevent his so acting. It cannot be toO strongly empharised that a right-hand or left-hand rule has always presented itself to the writer's experience as a matter of sheer chance, not of discernible pattern or policy. A party-wall regime allows either party un.re– stricted use of his vertically severed half-see SectI° r 38, Law of Property Act-and the prospect of a mutua hargain with the co-owner. Note-There is no corresponding section in Irish laW to Section 38 of the Law of Property Act 1925.