Boundary fences are less naturally susceptible to joint ownership than hedges, because of their width. By contrast, hedges are generally wide enough to have a centre line, which is capable of forming a boundary, and lend themselves to joint upkeep with each owner pruning his or her side. So one would usually expect that only one of the two landowners on either side of a boundary fence will own the fence – and that the boundary between the respective properties will follow the edge of the fence furthest from its owner.
But, in Vance v Collerton [2019] EWHC 2866 (Ch); [2019] PLSCS 218, the High Court upheld a county court decision that the landowners on either side of the boundary fence shared joint ownership of it. The judge rejected an argument that joint ownership of a fence is unheard of unless it be a “party fence wall”, which is described in the Party Walls Act 1996 as a wall, ruling that, while joint ownership of a boundary fence is unusual, it is not impossible.
It followed that neither of the landowners was entitled to remove the fence unilaterally. Consequently, the landowners who owned a cottage behind the fence in question had been wrong to dismantle it while their neighbours were on holiday, in order to provide access from a driveway, over which they enjoyed rights of way, to a newly created parking space in their garden.
The owners of the cottage had argued that their right of way – “with or without vehicles of any description and for all purposes in connection with the use and enjoyment of the retained land” – was so widely expressed that they must have the right to obtain access to park a car on the cottage land. Therefore, so their argument went, they must be entitled to remove the fence in order to give effect to their right of way.
But the owners of the driveway argued that it would be bizarre if the right of way enabled their neighbours to destroy the physical boundary between the two properties, to contribute nothing to the upkeep of the driveway, and to exclude them from parking on their own driveway – because the driveway was too narrow for use by two cars.
The High Court accepted that a landowner may be entitled to remove an obstacle that obstructs his right of way. Furthermore, the more transient or insubstantial the obstacle, the more ready the court may be to infer that he can do so. Conversely, the more solid and permanent the obstruction, the more reluctant the court will be to impute to the grantor any intention to enable the dominant owner to insist on its removal
But the right “to pass and repass” over the driveway to the cottage specifically included the right “to park vehicles on the driveway… for the purposes of loading and unloading only and for no other purpose whatsoever”. There would have been no need to include such a right if cars or vans could drive on to, and park on, the cottage land. Therefore, its inclusion strongly suggested that the right of way was not intended to facilitate parking on the cottage land.
The right of way should be construed, instead, by reference to the width of the gate in the fence that existed when the right was granted, and still did, and – except in the case of loading and unloading – was restricted to a narrow class of vehicles, such as motorcycles, scooters and bicycles.
Allyson Colby, property law consultant
