You can download the latest edition of our Property Disputes Quarterly Update, Winter 2017 via the link at the bottom of this preview of what is featured.
Boundary disputes - stumbling through the red mist
- AuthorAndrew Turner
Understanding what has sparked off the dispute between the parties in the first place is essential. It is very rarely the case that a party has pulled out his title deeds and decided that there is a problem with the boundary. There is usually some underlying animosity between the parties caused by something completely unrelated to the boundary before people start marching up and down their boundary lines.
A common theme in many boundary disputes is a complete misunderstanding of the Land Registry’s “general boundary” system in England and Wales. In short, the lines shown on Land Registry title plans do not identify the precise location of boundary lines. It is therefore utterly pointless to get your ruler out and start preparing fantastically colourful measured lines on Land Registry title plans. Colourful, artistic, well-intentioned perhaps, but a complete waste of time and ink.
The purpose of a title plan is to identify, approximately, the location of the registered property in question. The purpose is certainly not to provide warring neighbours with colour-coded ammunition to fire at each other.
In any boundary dispute, parties need to pause, take a breath, and consider, realistically, what their options are. There are really only three ways to deal with a boundary dispute:-
- Give in to the neighbour and wave the white flag – cost £0.00
- Enter into several months (or even years) of futile correspondence – cost circa £2,000 or more
- Take the litigation/alternative dispute resolution route – cost circa £10,000-£150,000
Both parties also need to understand that, even if they win, it is highly unlikely that they will be able to recover all of the costs that are incurred. And of course if you lose, not only will you have to pay your own costs, but you will also have to pay the other side’s costs too.
And then there is the question of timescales. Boundary disputes are generally not resolved in a matter of weeks or even months. It is more likely that resolution will take at least one year or two years, or even longer. Take note, if you are about to embark on a boundary war, buckle up, you’re in it for the long haul.
Once these general principles have been digested, one of the first things to do is to get an expert surveyor’s report. This can cost anything between £1,000 and £3,500 plus VAT depending on the expert involved, the size and nature of the property, and the intricacy of the boundary configuration. The more relevant information that can be passed to the surveyor, the better. This is likely to include old photographs, clear copies of the deeds and Land Registry data, previous topographic surveys, and of course, a summary of the background to the dispute.
Once the surveyor has produced his report, the next step is to obtain a legal opinion from a barrister. There is a lot to be said for only proceeding down the litigation route if both the surveyor’s report and the barrister’s report are favourable (and you have an incurable appetite for a legal scrap).
Even then, it is well worth thinking hard about whether or not litigation is preferable to simply accepting that the minor encroachment by the neighbour is not, in the grand scheme of life, worth exhausting your savings and your lust for life on. Painful litigation and lawyers crawling all over your garden, or a holiday of a lifetime?
If it is decided that the legal route is to be taken, whether through litigation or alternative dispute resolution, at every stage, the following should be borne in mind:-
- Keep a close eye on the ongoing costs. These should be reviewed monthly. These can rack up quickly.
- Any communication that you send to the other side should be written as if a judge is going to read it. Difficult though it may be, always attempt to write in a conciliatory manner. Remember that every document may well find itself into a court bundle one day and that inflammatory or melodramatic correspondence will not be welcomed by a judge.
Alternative dispute resolution, particularly mediation, is in my experience the best way to resolve a boundary dispute for the simple reason that every aspect of the unpleasantness can be resolved. In contrast, Court resolution is generally limited to the terms of the claim and you have less flexibility to address any of the underlying issues that may have triggered the boundary dispute in the first place.
If there is one single piece of advice to take away from this blog, it is this: think very hard about whether having the legal equivalent of a 12 round punch-up over the boundary is really worth it. If you are determined to proceed, consider mediation.
Mediation can result in a relatively swift and comparatively cost effective resolution. Litigation on the other hand is expensive and painful, and the victories are often hollow.