Boundary Disputes Solicitors

It is not unusual for boundaries on a plan to be shown as perfectly straight lines but, in reality, translating these plans to the ‘real world’ is never a straightforward exercise. There can be significant discrepancies and, where discrepancies exist, boundary disputes can arise.

Incorrect interpretations of where a boundary lies, leading to disagreements, can come from many sources. For example, inaccurate scaling on a plan, historic human error, misinterpretation of wording in a conveyance, or moving natural features such as rivers and streams; these are just some of the factors that can make determining the legal boundary of a property a challenging exercise.

Identifying the position of a legal boundary is therefore an involved process requiring careful historic research, and the marrying of wording and original plans with current day evidence and features.

Determining the position of a boundary can however have serious consequences either for the development of the land, or potentially the sale of a property and so early advice is important.

Often a boundary dispute will be accompanied by a claim in what is known as ‘adverse possession’, colloquially called ‘Squatters Rights’. Adverse possession is a technical area of the law, but in brief it means that if a party has occupied land belonging to another for a requisite period of time, they can sometimes seek to dispossess the owner, and obtain title to the land.

Claims in adverse possession can be complicated, and we would advise that you seek legal advice at an early stage to ensure that you do nothing to accidentally prejudice your position. There is always a risk that you can unintentionally ‘re-start’ the clock running, something which will undermine your claim.

Determining boundaries can be a difficult process and, in some cases, this is made harder where there is a lack of documentary or extrinsic evidence. A number of legal presumptions have arisen which can aide parties who find themselves in this position.

For example, if land is divided by a hedge and a ditch, there is a presumption that the boundary is the edge of the ditch. This is because (assuming the two parcels of land were once in common ownership and boundary features only arose after their division) there is a presumption that an owner digs a ditch up to the edge of their land, throws the soil over their shoulder onto their own land, and then plants a hedge on the soil. This is known as the ‘hedge and ditch’ presumption.

Equally, there is a legal presumption that if a fence is built on a boundary, the fence belongs to the landowner on whose side of the paling the fence posts are sited.

These are just two of a number of presumptions that can be applied to boundary disputes, and many others also exist dealing with roads and water courses.

Sometimes a neighbour or adjacent landowner will simply move or commence moving a boundary feature with no notice at all. Where this causes an encroachment onto a neighbour’s land the neighbour will end up in ‘trespass’.

In such situations, it is not uncommon for any allegations of trespass to be met with assertions that the boundary is in fact in the wrong place. Such claims will therefore often be accompanied by a requirement at first instance to determine the boundary position.

Where there is no dispute as to the boundary position, a claim of trespass is met primarily with a possession claim, and other remedies such as injunctive relief (which compels a party to do or refrain from a certain activity) or damages may also be sought.

It is not uncommon for boundary disputes to also be tied up with a claim for a prescriptive right. A prescriptive right is a right obtained through long use, the most common example being a right of way although prescriptive rights can arise and cover a number of different situations.

The starting point is that you must have been exercising the ‘right’ for a period of twenty years. If you can satisfy this initial hurdle, then there are a number of criteria to meet to ensure you have a valid claim. This is a complex area of law, if you need advice then please get in touch and our team would be happy to discuss your particular case.

The starting place is always to consult the original conveyance to the property, if these deeds can be located. It is not uncommon for them to be simply lost. The ‘parcels clause’ in the conveyance and the accompanying plan should help to give you an initial steer, although care must be taken as sometimes plans are noted as not being definitive and, where that is the case, they must be treated with caution.

If there is no original conveyance, then a review by a surveyor of historic extrinsic evidence ‘on the ground’ can help to find an answer, something which may be accompanied by the application of some of the various legal presumptions where applicable.

How long you have to raise a dispute over a property boundary will vary from case to case, but the main risk is always that if left too long the other party may acquire title via adverse possession.

Depending on the circumstances, allowing a party to remain in occupation for 10 or 12 years (depending on when the occupation began as the rules on adverse possession changed in 2003) can risk creating the possibility of a claim arising. This means that it is important to act sooner than later.

Whether a party can make out an adverse possession claim can be a complicated matter to determine, so it important to get specialist legal advice as soon as you can to make sure you do not risk losing out.

The best way to try to resolve a boundary dispute is by coming to a sensible agreement with a neighbour, and formalising this in what is known as a ‘boundary agreement’. This can then be filed with the Land Registry for noting against the titles to the respective properties.

Where this is sadly not possible, other options include:

1. Appointing an expert surveyor to undertake a boundary review and to mark where they consider the boundary to be. Prior to any such work, the parties will enter into an agreement to be bound by the decision of the expert
2. One party may offer to purchase the land in question from the other party, if agreeable a conveyance can be entered into between the parties.
3. The parties may agree to enter into a mediation with a professional mediator, who will try to steer the parties to a relatively amicable solution if possible so the matter can avoid escalation.
4. If none of the options as above succeed or are appropriate, then issuing legal proceedings seeking a declaration of the Court as to the position of the boundary is a final option.

IBB recently acted for a homeowner dealing with a dispute over the boundary of their home with an adjacent property developer. The dispute arose over the movement of a boundary fence by the developer to allow better access to their site which lay at the rear of our client’s land.

The matter required initially an injunction to be obtained, followed by preparation for a trial to determine the position of the boundary. The case involved the application of a number of legal presumptions, a claim in adverse possession, and assistance from witness evidence of adjacent neighbours.

IBB Law’s Property Disputes team were able to succeed on all elements of the claim, obtaining a highly favourable judgment and order to reinstate the position to as it had been prior to the developer’s actions.