The New Homes Ombudsman has issued a decision in a case where a developer constructed a garden fence beyond the legal boundary of a new-build home.
The complaint
A customer purchased a new build home, which included a garden bounded by fencing. Several months after completion, the developer informed the customer that the rear fence had been positioned beyond the legal boundary of the property, on land owned by neither the developer nor the customer. The developer told the customer that the fence would need to be repositioned on the legal boundary, which would have the effect of reducing the size of the garden. The customer complained to the New Homes Ombudsman. Amongst other remedies, they asked the Ombudsman to order the developer to purchase the additional land so that the fence and garden could remain unaltered.
The Ombudsman's decision
The Ombudsman upheld the customer’s complaint, but found that the developer was entitled to move the fence to reflect the legal boundary. The Ombudsman’s key findings included the following:
- Incorrect placement of the fence: By its own admission, the developer had failed to construct the garden in line with the legal boundary and the developer’s sales materials. This had caused the customer inconvenience and distress.
- No jurisdiction to order developer to purchase land: The Ombudsman did not have the power to require the developer to purchase the land which fell outwith the legal boundary but within the existing fence.
- Compensation and apology: While the Ombudsman acknowledged that the developer was entitled to relocate the fence to reflect the legal boundary of the property, the customer was awarded £750 in compensation. In addition, the Ombudsman recommended that the developer issue a written apology to the customer.
- Developer required to reinstate garden: The Ombudsman also ruled that the developer must reinstate the garden’s features (which would include, for example, any turf and plants next to the existing fence) within the reduced area of the garden, so that the customer did not have to redo any of the work they had done to the garden since completion.
Key takeaways
In this case the developer will not have been surprised that the complaint against them was upheld - it was clear the boundary fence had been erected in the wrong location. However, developers will take comfort from the fact that the Ombudsman considered that it was not within his power to order the developer to purchase additional land rather than simply moving the fence to the correct position. To avoid similar issues arising in future, developers should:
- Establish processes to check that boundaries fences and walls have been constructed in accordance with plans and legal boundaries.
- When errors are identified, act quickly to communicate with the customer and propose a fair resolution (which may include compensation where appropriate).
For advice on any aspect of the New Homes Quality Code or any other aspect of housebuilding, developers can get in touch with our Real Estate Litigation team or their usual contact in the Brodies Living team.
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