Boundary dispute legal advice

Boundary disputes can be highly emotional for the parties who are involved, particularly if they are owners of residential properties, as it means that they are in dispute with their neighbours, with whom they are going to have to try to get along with, long after the case is over.

These sorts of disputes can be highly complex, and uncertain as to the final outcome. The costs can be out of all proportion to the value of the land in question, often a small strip or piece of land, and run into many thousands of pounds. If the matter goes to court then the case may take 2 years or more to come to trial. And whilst you may win your case, and have a portion of your costs awarded to you against your neighbour, the courts are continually criticising the level of costs generated by these disputes, so it can not be guaranteed that you will get your costs paid, even if you were to win your case.

So, why are boundary disputes so complex and uncertain? The answer lies in the way that property ownership is recorded in England and Wales (note: Scotland has a different regime). Most property ownership is recorded at the Land Registry, but it may surprise you to know that the plans filed there are generally not all that accurate. They are usually based on Ordnance Survey maps, but are intended only as a general guide to where the boundary may lay. There is almost never a detailed description or plan, with measurements.

There will also be a description and a plan of the land whenever it is transferred or conveyed to a new owner, which is supposed to set out the land that you are buying. However, these can also be vague as to the boundaries of the land that you are purchasing, and can conflict with the plan that is held by the Land Registry.

This can obviously lead to uncertainty and confusion, and inevitably conflicts between neighbours as to where the true boundaries of their properties lie. It is possible to apply to the Land registry to determine exactly where the boundary lies, which will then be recorded in the register. However this process can be quite expensive and is rarely used.

So what can you do if you believe that a neighbour has encroached on your land, by, for example, erecting a fence in the wrong position, or building on your land? Well, the first thing we would suggest is speaking to your neighbour. If that fails to resolve the problem, then you should consider employing a Chartered Surveyor, who is experienced in dealing with boundary disputes. The Royal Institute of Chartered Surveyors will be able to provide a list of suitable surveyors. You could suggest to your neighbour that you jointly instruct the surveyor and split the costs, and agree to be bound by his findings.

If that fails then you may have little option but to recourse to legal means to resolve the dispute. But how do the courts go about resolving the dispute if the written records of the boundary is unclear? The case of Acco Properties Ltd v. Severn (2011), gave a useful summary of the principles to be applied to boundary disputes. They are:-

• Registered title filed plans usually show general boundaries rather than the exact boundary line.
• Ordnance Survey plans are usually only a general guide to boundary features and should not be scaled up to delineate an exact boundary.
• The starting point is the wording of the conveyance and the conveyance plan or, if the plan is stated to be definitive, guided by the plan.
• If the conveyance is not clear then extrinsic evidence may be considered, for example, features which existed at the date of the conveyance.
• Evidence of the parties’ subsequent conduct may be relevant and admissible if it reveals what the parties intended.
• Evidence of features after the date of the conveyance may be relevant.
• The boundary needs to be clear rather than “fuzzy at the edges”.
• Even if the boundary is clear from the conveyance other evidence may show a different boundary as a result of adverse possession.
• An informal boundary agreement need not be in writing as it demarcates an unclear boundary rather than operating to transfer an interest in land.
• Boundary agreements are usually oral, but can be inferred or implied.
• The court should have regard to what a reasonable layman would think that he was buying.

However, before litigating it will be worth considering Alternative Dispute Resolution (ADR). This can include mediation using an independent mediator (usually someone who has experience in this field, i.e. a Chartered Surveyor), or arbitration, both of which will be much cheaper than going to court.

To contact Jon Mowbray and IBB’s property dispute resolution solicitors please visit: https://www.ibblaw.co.uk/service/real-estate-dispute-resolution.