Printed from: https://conservationhandbooks.com/dry-stone-walling/walls-and-the-law/
Many of the legal considerations applying to the ownership of walls and responsibility for their maintenance are common to earth banks, ditches and fences of all types. Problems posed by shrubs or trees growing along a bank or hedgerow are covered in Hedging – Hedges and the law.
The guidelines given below are general and may be subject to varying interpretations. Professional legal advice should be sought in any ambiguous or disputed cases.
- Where a wall or bank has a ditch on one side, the wall is presumed to belong to the owner of the field on whose side of the wall there is no ditch, unless deeds state otherwise. The boundary is the side of the ditch farthest from the wall.
- If the ditch exists but has been so damaged or neglected that the exact edge cannot be determined, the distance can sometimes be settled by reference to local custom. The usual width allowed is 4’6″ (1.3m) from the base of the wall or bank to the far side of the ditch. However, this ‘custom of the country’ may not necessarily be followed by a court of law.
- Where the wall or bank is ditched on both sides or on neither side, ownership is usually mentioned in the deeds. If the wall or bank is ditched on both sides, it usually belongs to both parties.
If the wall or bank is right on the boundary, half belongs to one person and the other half to his/her neighbour. The dividing line is taken vertically from the boundary line.
- Ownership and responsibility for the maintenance of enclosure walls may be indicated by the maps accompanying Parliamentary Enclosure Acts or by evidence built into the walls themselves:
- Enclosure Award maps often set out the portion to be walled by each party, and show this by a small T mark placed with its foot on the wall line and its head into the field whose owner is to build and maintain the section of wall.
- Long enclosure walls often have heads built in at intervals, indicating the boundaries of the sections for which adjacent landowners are responsible. To show this, two heads are built immediately adjacent to one another with the coping carried across the gap to reduce weakness at this point.
- If throughstones, the coverband or topstones overhang one face only of the wall, this may or may not indicate ownership, depending on the area and the situation. In some locales the ‘face side’ refers to the side without protruding stones and this is the owner’s side. Elsewhere it is the side with projecting stones that faces the owner’s land because the throughs, coverband or topstones have been placed to keep his sheep from jumping over. Local custom may indicate which is the case in the vicinity in question. However, garden walls are usually left smooth on the outside (the side away from the owner’s land) for appearance. Roadside walls are almost always left smooth on the side facing the road, irrespective of who is responsible for the wall’s upkeep, in order to lessen damage to vehicles hitting the wall and to keep passers-by from climbing the wall.
- If a wall is built on a boundary line, any piers or strengthening buttresses must be built on the owner’s side; otherwise his/her neighbour may claim ownership on the basis of this evidence.
- If there is a ditch on both sides or on neither side, and ownership is not clear in the deeds, it can be claimed by one party on the basis of ‘acts of ownership’, such as maintaining or rebuilding the wall or bank. In such cases it seems necessary to prove that the neighbour knew of or acquiesced in these acts and raised no objection to them. Twenty years of continual use is usually looked upon as an ‘immemorial custom’ conferring right of ownership.
- Where the origin of a wall or bank cannot be determined and there are no acts of ownership, the wall or bank belongs to both owners in equal parts.
- When land is sold the boundary may be based on Ordnance Survey field lines. These indicate the centre of a wall or bank rather than the true legal boundary, and to avoid later dispute the actual boundary should be determined before purchase.
Boundary wall maintenance
- The owner is responsible for repairing the wall or bank and clearing the ditch.
- If the wall or bank exists on the boundary line, the owner of each half is responsible for maintaining his/her half and can do what he/she likes with it.
- When a wall or bank belongs to both parties jointly, it is assumed to be divided down the middle and each party is responsible for maintaining his/her half.
- If a wall or fence falls on the neighbour’s land and damages plants or property, the owner is liable for compensation except to any things which grow or rest upon the wall by sufferance (see Rights of use, point ‘a’).
- When digging or clearing out a ditch along a wall or bank, the owner must not cut into his/her neighbour’s land. He/she must throw all topsoil upon his own land.
- The owner of a ditch can erect a fence at its edge, along the boundary line, to protect his/her ditch. He/she is then responsible for repair and maintenance of the fence.
- Many secondary rural roads are owned by the landowners along either side, with the boundary line taken as the middle of the road, even where the road is controlled and maintained by the county council. If the council widens or realigns the road it must replace the wall or bank, although not necessarily with a barrier of the same type. In all other ways, including maintenance after replacement, the wall is the landowner’s responsibility.
Obligation to fence
- There is no law to compel a landowner to wall or fence his land, but if he/she fails to do so, he/she cannot claim for any damage from the owner of straying stock.
- Railways, however, must be fenced against stock belonging to owners or occupiers of land adjoining the railway, to prevent them from straying on the line. The railway company is liable for damages to stock due to improperly maintained fences.
- Each person is responsible for his/her own trespass and that of his/her stock. So while a landowner is under no obligation to fence in order to keep out his neighbour’s stock, he/she must prevent his/her own stock from straying on another’s land. An owner cannot claim for damages if his/her stock stray and injure themselves on a neighbour’s fence.
- If the wall or bank between two neighbours is defective and only belongs to one occupier, the other neighbour must fence in order to control his/her stock. He/she can put up any sort of fence, but it must be on his/her own land.
- Where a wall or bank is owned jointly and it is defective, the owner of stock can place the fence in the wall or bank itself, along the boundary line.
- An owner or rent-paying tenant can claim damage done to his fences or gates by any trespasser, including a hunt.
Tenant and landlord
- The upkeep, maintenance and repair of walls, banks, ditches and gates is usually the tenant’s obligation. In many cases the landlord must provide the necessary materials for the work. This should be stated clearly in the tenancy agreement. At the beginning or end of a tenancy the condition of the fences may be assessed and compensation is usually paid or claimed for improvements and depreciations to them all.
- In most cases the tenant cannot remove walls or banks or fill in ditches without the consent of his landlord.
- Any other fencing put upon a holding by a tenant, not necessary to the fulfilment of some obligation, is the tenant’s property. He may remove it before or within a reasonable time after his tenancy ends, unless he has not paid his rent, but he must give his landlord one month’s notice before removing the structure, during which time the landlord has the option of buying it. The tenant must make good any damage done in removing the fence.
Rights of use
- A neighbour has no right to attach to his/her side of another’s wall or fence any creeping, climbing plant or trained tree, or to fasten anything to the wall by nails. Nor may he/she lean any loose timbers or heavy articles against the wall which may tend to damage it. If creepers or trained trees have been allowed to grow with no disturbance for a number of years, the owner’s consent is presumed, but the owner is not responsible for any unavoidable damage to plants when the structure is repaired.
- When a wall or bank belongs to both parties jointly, each owner is considered to have ‘rights of support and user’. This means that each can build upon his/her own side of the wall for support, but he/she has no right to go beyond the boundary line with any portion of his/her building.
- Where a wall or bank crosses a public right of way, the owner or tenant is usually responsible for maintaining any stile or gate in a safe condition, and to a standard which does not make an unreasonable interference to the rights of users. A grant towards erection or maintenance may be available from the local authority, from whom advice should be sought.
- The owner of a roadside wall or bank or one beside a public footpath is responsible for seeing that the structure does not become a nuisance. ‘Nuisance’ is defined as something that may cause injury, damage or inconvenience to others.
Occasionally, objects of intrinsic or historical or archaeological value may be found within walls or banks when they are under repair. The law regarding ownership of field antiquities is complex. In England, Wales and Northern Ireland, ‘treasure trove’ is deemed to be gold and silver that has been hidden in the soil or in a building and of which the owner cannot be traced, and is claimed by the Crown. If there is no element of hiding, the items most probably belong not to the Crown, but to the owner of the land. In Scotland, however, all finds are deemed to be treasure trove, whatever their apparent mode of deposition, and whether or not they are of gold or silver. In all cases, the most sensible course of action is to report any finds to the police, who can then inform you of any further procedure required.