Finding an amicable solution to boundary disputes - how to give an inch without feeling like your neighbour has taken a mile
Most land in England and Wales is registered with general boundaries that show the extent of the land. Problems arise when a boundary is ambiguous and/or there is some action by one party that causes potential interference with a boundary. However, a boundary dispute is rarely just about the land itself and often stems from far broader issues between the parties. The size of the piece of land in question seems to be inversely proportionate to the level of animosity often involved. The increased use of mediation in such disputes has improved the situation in that both sides should be able to reach a solution which leaves neither feeling like the other party has taken a mile.
Finding an amicable solution between the Parties
If discussions are cordial or issues are yet to arise (but are foreseeable) Parties can decide where the boundaries between their properties are by making a boundary agreement. Parties should always check their deeds first to see if there are any existing boundary agreements in respect of either property. If there aren’t, a new agreement can be made and should always be in writing and signed by the Parties. Agreements like this can be added to the title plans of the respective properties to create certainty for the future.
Parties can also apply to set the exact boundary for their land/property if they want to. To do so, as much information as possible should be obtained from title plans, registry documents and other documentation before an application is made. It’s also possible to get information about neighbouring properties from HM Land Registry easily and cheaply. You can also ask a surveyor to draw up a detailed plan and send this to HM Land Registry, with a completed application to determine the exact line of a boundary together with a £90 fee and any agreements with neighbours/interesting parties.
Where issues arise, and the Parties need help to resolve it, mediation and other forms of alternative dispute resolution (‘ADR’) can be a cost effective mechanism to resolve boundary disputes. The Parties maintain control of the procedure and can often find a realistic and pragmatic solution with a little compromise.
Where parties cannot reach agreement
If mediation is a ‘no go’ or the parties cannot reach agreement it has historically been the County Court which has been the forum for resolution. Parliament has debated trying to remove these disputes from the Courts with the Property Boundaries (Resolution of Dispute) Bill 2016 which made little progress and has now been delayed. The Bill seems to be modelled on the Party Wall Act 1996 in that it suggests a mechanism whereby adjoining neighbours can resolve a boundary disputes without recourse to the Courts. Instead, the boundary is determined by appointed surveyors.
Fundamentally, the process the Bill proposes still relies on a resolution being imposed on the parties and this does not get over the core problem of one party feeling extremely aggrieved at the end of the process. Also the process envisaged relies entirely on the expertise of surveyors which is by and large an expertise in surveying and measuring what is seen on the ground. However, determination of the position of a boundary is a composite process of measuring and legal analysis of the relevant documents. Most surveyors could not be expected to have the expertise to deal with all the various factual and legal issues that may arise including the proper legal construction of documents, estoppel, boundary agreements and adverse possession.
It will be interesting to see whether the Bill will be resurrected and a surveyor-led procedure for resolving disputes adopted in the future. For now at least, issuing a County Court claim is the last resort.
When potential issues arise
Whether you are a house builder, land owner or public sector organisation it is inevitable that from time to time you are going to be involved in disputes over land of one kind or another and boundary disputes are not uncommon in a residential or commercial land context.
If you are concerned that there is a potential for a boundary dispute or there is any ambiguity regarding a boundary and you are unable to resolve it yourself it is best to seek legal advice before animosity builds. If an issue has already arisen then quick legal intervention can assist to stop any potential nuisance and trespass fast.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.