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.

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.

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

1908]

1 Ch

630

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

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

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

the right to prevent his so acting.

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°

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

of the Law of Property Act

1925.