Property dispute resolution solicitor, Mike Hansom, considers the often thorny issue of boundary disputes. He explains why proving a boundary line is often far from straightforward and considers how disputes can be resolved speedily and at the least cost.
Should you wish to discuss your own situation further, Mike is available on 01225 462871. Alternatively, you can email him, or complete the Contact Form at the foot of this page.
As the saying goes, “An Englishman’s home is his castle”, and in my experience, few things will stir emotions between neighbours quite as much as an incursion, whether actual or perceived. Many, although certainly not all, boundary disputes involve a small strip of land, often no more than a foot or two in width, one side or another of the disputed boundary line. If care is not taken at the outset, the cost of litigating such a dispute can greatly exceed the value of the land itself.
When a dispute arises, whatever the outcome, you can pretty much guarantee there will be no return to good neighbourly relations, at least until one party moves away. But therein lies another problem. When you come to sell your property, although the legal issue with your neighbour may have long resolved, you must nevertheless disclose the previous boundary dispute to a potential purchaser, which is not great from a marketing perspective! And should you ‘forget to mention it’, it will almost certainly come to light, probably very soon after completion, with the prospect of your purchaser then bringing a claim against you.
As a boundary disputes solicitor, I know that disputes often arise because the exact position of the boundary line is far from clear. You may believe that the boundary between your and your neighbour’s property is delineated by a structure such as a wall or a fence, or by an organic boundary such as a hedge or a tree line, but it’s rarely that straightforward. There’s even a common misconception that there are ‘boundary fence rules’.
Boundary disputes examples
Examples of the types of question we are often faced with are does the boundary line follow the centre point of a structure or hedge, or was it built or planted on one side of the boundary? A cautious predecessor may have erected a fence on what they considered to be their side, a reckless or enterprising one on their neighbour’s side. What if there is no tangible barrier at all between the properties or, similarly, what if your neighbour has removed the boundary fence?
To further muddy the waters, boundaries can and do evolve over time and many disputes involve a claim for adverse possession [see: boundary disputes 12 years]. This is a complex and highly specialist area. If you are claiming adverse possession or defending such a claim, you should seek legal advice from us at a very early stage to ensure your position is protected.
Land Registry boundary determination
If a boundary line is questioned, an understandable first reaction is to reach for the Land Registry title plan. But other than the rare exception of a “determined boundary” following a Land Registry boundary determination, title plans do not establish the legal boundary of a property with any degree of precision. Indeed, there is no legal or procedural requirement to have exact boundaries recorded anywhere.
Land Registry plans are based on Ordnance Survey maps and show only what is described as “general boundaries”, with the exact boundary line left undetermined. The scale of the plan is also problematic. What appears the thinnest of lines on the plan, probably equates to around a metre in width when scaled up on the ground. For all practical purposes then, Land Registry plans are of no use in determining your exact boundary line.
Inward facing T boundary
There are also a couple of myths that are often adopted as ‘evidence’ in boundary disputes. As a boundary disputes solicitor I can put those quickly to bed:
- You do not ‘always own the left-hand fence when facing your house’.
- If a T-mark on the title plan is inward-facing to your property, it usually means you are responsible for the repair of that boundary. However, the Court of Appeal has held that it does not also mean (or indicate) that you therefore own that boundary feature – wall, fence etc.
Boundary Disputes Protocol
However unattractive the prospect, boundary disputes with neighbours sometimes means you will have little alternative but to challenge your neighbour’s postulation over the position of a boundary.
The Civil Procure Rules (CPR) provide a number of pre-action protocols to be followed by parties involved in different types of dispute. Unfortunately, there is not yet in place a formal protocol for boundary disputes. But in 2018, at the request of the Ministry of Justice, the Civil Justice Council (CJC) issued guidance notes “to assist parties to achieve the resolution of a boundary dispute quickly and at limited cost.” The focus of these notes is to encourage “those with a dispute to view court proceedings as last resort”.
The CJC received significant input in this exercise from the Royal Institution of Chartered Surveyors and the Property Litigation Association. These two organisations have produced their own protocol, referenced in the CJC guidance notes. While this voluntary protocol has no strict legal status, it should nevertheless be viewed as providing a ‘best practice’ guide to the early resolution of boundary disputes. After all, it seems to have received the tacit approval of the CJC, and if court proceedings do subsequently prove necessary, compliance with it is very likely to be viewed favourably by the court.
Boundary disputes surveyors
Many boundary disputes could be settled at an early stage or even avoided altogether if a high-quality boundary survey was obtained at the outset from a boundary disputes surveyor. Unfortunately, it’s not unusual to find a party seeking to rely upon a poor quality survey that does not accurately reflect the position on the ground. The situation is often made worse by a surveyor failing to act in accordance with either their professional code of conduct or their duty to the court as an expert witness. This can be avoided by using experienced boundary disputes surveyors.
A plan should be detailed and produced in compliance with the CPR by a specialist chartered land surveyor. It should be made available in electronic form for ease of reproduction and to enable detailed and accurate measurements to be taken. Your boundary disputes solicitor will be able to recommend a suitable boundary disputes surveyor.
Boundary disputes mediation
Should your boundary dispute mean that litigation becomes necessary, the county court will expect both parties to have at least considered other methods of resolving their dispute before bringing it before the court. The most common form of alternative dispute resolution is mediation.
A mediator is a neutral third party who has received training in dealing with difficult discussions between two or more parties, with a view to helping them negotiate a settlement. If a settlement proves possible, the parties will be encouraged to put the agreement in writing and make it binding. Each party can either attend the mediation on their own or with a solicitor or other adviser. Mediation focuses on practical rather than legal solutions and for that reason, the mediation often takes place at or close to the premises so that possible solutions can be seen in context. Mediation does not compromise a party’s position should settlement not be possible and the matter proceeds to court.
A major consideration is that the cost of mediation over a boundary dispute is inevitably significantly less expensive than taking the matter to court.