Boundary, hedging and garden issues

The buyer’s claim

The buyer claimed they were originally informed their boundary was a fence constructed inside a large hedge, but it transpired that their title included the hedge and they were responsible for its maintenance. The buyer claimed they would not have purchased the home had they known.  The buyer also claimed the back garden was waterlogged and full of stones and the builder had provided poor after-care and complaints handling in dealing with these matters, had not engaged with its civil engineering adviser and had refused to provide drainage plans.

The buyer requested an apology, an explanation, practical action to resolve the issues and compensation of £15,000.

The builder’s defence

The builder stated it was not liable for the claim as it had reached an agreement with the buyer regarding remedial works for the back garden whereas the boundary / hedge issue was out of scope of the Code. The builder also stated it was not required to provide drainage plans which were, in any case, available on the planning authority’s website.

The adjudicator’s findings

The adjudicator pointed out that the boundary dispute was outside the scope of the Code. Related concerns that fell under the Code could be considered, albeit any redress would be affected by the lack of resolution of the boundary issue.

The adjudicator considered that the precise location of the boundary was unclear and therefore the sales information provided was also unclear.

Although the builder argued that the title plan was shown to the buyer at the reservation meeting, the adjudicator noted the plan did not clearly indicate whether the hedge formed the boundary and therefore the pre-purchase information had been insufficient.

The adjudicator also found that probable liability for maintenance of a large hedge outside the buyer’s fence line is likely to have affected the buyer’s decision to purchase that particular plot. 

The adjudicator was not satisfied that the issues about the boundary/hedge had been resolved and found a high level of confusion about the explanations given to the buyer when they raised complaints. However, the adjudicator found there was no breach regarding after-sales as the buyer had been able to raise and escalate their concerns via the builder’s after-sales service.

The adjudicator was also satisfied that the builder, having received the complaint regarding the garden, investigated and set out actions it would take to remedy the issue. The adjudicator considered the 11 month period before which a resolution was reached was reasonable given the level of disagreement between the parties and the complexity of the complaint. 

Learning points

For buyers:

• Your builder is responsible for providing clear pre-sales information. However, what can appear clear to someone familiar with the site, may be less clear to you as a home buyer. If there is anything on the plans or sales brochure that you don’t understand, ask your builder to clarify – and follow up in writing to ensure there’s a written record of any explanations.
• Boundary issues can be emotive so it’s important to ensure you’re clear about your home’s boundary, and any associated responsibilities early on. Ask your builder to clarify the characteristics of your boundary, including likely maintenance requirements. Don’t forget to check who is responsible for the upkeep of which boundary if your property borders others, and make sure any associated outside space such as driveways and garages are clearly marked.
• Talk to your builder in advance about what to expect in your garden. Builders often provide turf or landscaping but may not be required to do so under their home warranty scheme standards which can limit the redress available to home buyers if aesthetic problems occur. However, issues such as drainage are likely to be covered by your home warranty policy if your builder is at fault.

For builders:

• Boundaries must be clearly marked and supporting information made readily available to home buyers. If there’s likely to be an ongoing requirement for maintenance, you should include this – with a reasonable estimate of costs over the next ten years – in the information you give buyers about costs related to their home.
• Be mindful that your understanding of the site layout will be more detailed than your buyers. Boundary information should be easy to understand and properly explained in writing. If there are any unusual arrangements – such as in this case – it is particularly important to ensure the buyer has understood their ongoing responsibilities.
• Remember to encourage your buyer to seek professional advice so that their adviser can make enquiries on their behalf. Although you can make recommendations, you must declare any incentives or advantages you may receive for recommending a professional adviser.
• Maintaining clear, open communication with your buyer can help reduce the risk of disputes escalating and minimise potential Code breaches. Read our factsheet on handling customer complaints for guidance.