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Ownership of Fences
—The Conveyancer's Choice
by J. E. ADAMS, LL.B.
(Reprinted by permission from the English Law Society "Gazette")
PART n
Minor objections to party-wall structure
Consistent with his conclusive preference for the party
structure solution, the writer has always adopted it in
the drafting of conveyances and transfers of new dwel-
lings in many parts of the country. He has met mild
opposition in some instances, largely based on the fact
that it represented a departure from the more usual sole
ownership usage in the area, and certain objections
have been voiced to it. One such which is worthy of
consideration is that such a regime may inhibit a pur-
chaser's choice of fencing to his personal taste. Suppose,
for example, that a 2 or 3 foot high post and wire fence
is provided and expressly made a party structure, and a
purchaser desires to replace all or part of it with a 7 foot
6 inches high interwoven fence. Now, say the critics, he
is prevented from doing so by the party wall provision.
In fact this is not so. If, for example, boundary a-b in
the diagram is stated to be a party structure, and con-
sists of the low fence just described, A and B, owners of
houses 1 and 2, can agree to replace it with the high
woven fence just described so that that becomes the
party structure in shared ownership and subject to such
repairing obligations and rights as affected the original
structure. If, say, 1 objects (as with an increased main-
tenance burden he might well choose to do) then B just
has to erect the structure within the confines of his own
garden, setingt it far enough back to gain access to both
sides for maintenance. However, that is no worse a
position than will face him if, for example, he wishes
to have such a high fence along boundary a-b and by
"the luck of the draw" boundary a-b, under a sole
ownership regime, belongs to house 1, not to his house.
If A solely owns boundary a-b, moreover, he may be
less willing to have it replaced by the higher structure
than if a-b is party, so that B must bear his share of
responsibility for the new fencing he is keen to erect.
Secondy, there are undoubtedly instances where one
party has a much greater interest to be served by a
boundary structure than another. For example, to revert
once more to the diagram, if A the owner of the
detached dwelling house 1 decides to sell off part of his
large garden and it is on that land that houses 2 and 3
are to be built then he will possibly insist with some
particularity on the nature, size and construction of a
wall on the boundary a-b so as to protect and perpe-
tuate his privacy. He may well insist on the purchaser
building such a wall, ownership to vest in him (1) once
it is built. This is undoubtedly a case where the wole
ownership of a-b is determined other than by chance.
Even so, in so far as a structure of such dimensions and
construction as to provide privacy for A must
ipso facto
provide privacv for B the owner of house 2, the party-
wall solution, given its proper framing to impose repair-
ing obligations on both parties, in fact provides no less
N
BEECH
BOULEVARD
Footpath
satisfactory a solution to the privacy problem and
retains the other advantages discussed above.
Thirdly, there are specific cases where the burden of
ownership, with concomitant liability for collapse or pf
repair to prevent collapse, dictates a particular choice of
sole ownership. This can be both a marked and a tricky
problem where a wall is in any way a retaining wall-
It is not suggested that a party structure solution would
be ideal in these circumstances; indeed, what is urged
is that it is a better device that the sole ownership on a
random choice basis in the generality of cases where no
special circumstances point to a considered and specific
choice of sole ownership.
Drafting of party-wall clauses
Fencing covenants are positive covenants, of course,
and hence not normally binding on successors in title of
the original parties (for which unstartling proposition
Austerberry v Oldham Corporation
[(1885) 29 ChD
750] is an authority if one be really needed). Not the
least advantage of the party structure provision is that
repairing obligations in respect of such structures may
be rendered enforceable against successors by reliance
on the mutuality principle exemplified by
Halsall
v
BrizzelX
([1957] Ch 169) because each co-owner of the
party structure enjoys rights against his co-owner so
he must perform his obligations to that other. For
a
long time party structure clauses based upon the Ency-
clopaedia of Forms and Precedents model, that seem-
ingly most often followed by solicitors [understandably»
in view of the common editorship, the same wording ij
found in Kelly's
Draftsman],
provided that such and
such a structure should be "a party structure and. main-
tained and repaired accordingly". This attempt to
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