Boundary Disputes

With the value of land increasing and landowners making full use of their plots, such as extending properties to the edge of their land, the number of boundary disputes are on the rise.

What is a boundary?

A boundary is a theoretical line dividing two properties. It may be a wall, hedge, fence or there may actually be no physical divider. These can normally be found on title deeds or other conveyancing documents. The first thing to do in any dispute is identify the boundary, however Land Registry Title Plans are rarely precise plans, and it is common for the boundary on the land to be different from the boundary on the plan.

This is because Land Registration plans are generally to a scale of 1:1250 (Urban) and 1:2500 (Rural areas). Thus, it will be realised that the width of the red lines shown on Land Registry plans, some of which were originally drawn in felt tip or biro, when scaled up can be many meters thick.

Therefore, the boundary of a registered estate as shown in Land Registry’s Official Copy of Title Plans are a ‘general boundary’ unless shown specifically as a ‘determined boundary’. A general boundary does not define the exact line of the boundary and the purpose of such Title Plans is to indicate the general position of boundaries to the property owners.

What to do when a boundary is disputed?

There are huge emotional and financial costs in litigating over a boundary between neighbours and it is rarely cost-effective.

Pinney Talfourd’s residential property litigation team offer a firm approach but will always encourage sensible negotiation and the use of mediation or other form of alternative dispute resolution rather than going to Court.

Dispute resolution methods

Pre-action protocol

A voluntary protocol for disputes between neighbours about the location of a boundary has been prepared by senior members of the legal and surveying professions. Compliance with it is voluntary but it is instructive to consider the process which has been agreed as an effective method of resolving boundary disputes and controlling costs. In brief, it recommends:

• the exchange of information by both parties to the dispute within two weeks of the dispute arising;
• disclosure of all relevant information to include past conveyances and photographs within a further two weeks;
• discussion, negotiation or mediation within a further 6 weeks;
• appointing single or joint experts within an agreed timeframe and then exchange of reports;
• final consideration of whether the dispute can be resolved, taking into account all the above, by any method prior to Court proceedings being commenced.

Mediation

Mediation is also an effective alternative to going to Court. A neutral third party is employed by both parties in dispute to seek to resolve the conflict through good communication and negotiation. The Courts have universally backed mediation as being something that should be attempted in nearly all cases.

Halsey v Milton Keynes General NHS Trust [2004] WLR 300, the use of mediation was endorsed and the case provides authority that a party refusing to mediate may well be ordered to pay the costs of the other party, whatever the outcome of the litigation may be. The Courts cannot compel a party to mediate but it can strongly encourage the parties to do so.

This is reflected within the Civil Procedure Rules (the CPR), which governs the Court system, which imposes a duty on legal representatives to ensure that their clients are fully aware of the benefits of ADR (Alternative Dispute Resolution of which mediation is a part).

To summarise, the reason why the parties should consider mediation are:

• it may work in producing a settlement;
• refusing to mediate might carry a cost penalty in subsequent proceedings; and
• settlement achieved through a private process such as mediation can produce a bespoke solution for the parties which a Court might not be able to impose on them.

Applications to HM Land Registry and/or Court Proceedings

It is possible to make an application to HM Land Registry for a Determined Boundary and this is frequently used as an alternative to applying to the County Court for a declaration as to where the boundary is. HM Land Registry may agree to deal with the application however if there are complicating factors, it may direct that one or other of the parties issues a Court application.

How Pinney Talfourd can help

Pinney Talfourd LLP have a wealth of expertise in resolving residential and commercial boundary issues between parties. We work with specialist land surveyors, barristers and mediators to assist as experts and representatives in each dispute We will always keep under consideration the costs of these disputes to enable our clients to make informed choices as to how best to resolve.