Stepping over the line – Managing Boundary Disputes

 

Boundary disputes can be a nightmare for all concerned. Often triggered by the replacement of a hedge or fence, boundaries are a common source for disputes between neighbours. Those involved are often prepared to fight tooth and nail over the smallest strips of land and emotions can run high, as Siobhan Perrigo, Litigation Solicitor, explains

Disputes with neighbours must be revealed when a property is sold and will often devalue or even put off potential purchasers. It is crucial that disputes are handled carefully to protect your investment.

The first thing to note is that the title plan which is registered with the Land Registry cannot be relied upon to reflect the legal boundary between properties.

You need to start by looking at the first transfer which created the piece of land in question. - This is what is written in the original conveyance and reflected in the conveyance plan (if available), which split a property from its neighbours.

The original legal boundary for a property is determined by the deeds. The conveyance deed that divided the property may have measurements, a description of the boundary in question or “T” which usually marks who owns a boundary feature.  Unfortunately, deeds are not always available. 

Presumptions can be made about the boundary from the facing of fences or the situation of hedges and ditches that existed at the time of the conveyance. In the absence of convincing original evidence, such as hedges and fences eroding over time, other evidence would need to be found.  

There are a number of ways a property owner may achieve a more precise boundary.  These can be highly complicated areas of law, so we will just summarise here.  Items that are generally not contentious are the conclusion of a boundary agreement or having a determined boundary.

Boundary Agreements

Two or more owners may enter into an agreement that determines the boundary between their properties and/or agree who is responsible for the maintenance of a fence or hedge.  With boundary agreements, there is a re-buttable presumption that the boundary agreement does not involve the transfer of any land, and that the agreed position coincides with the true position of the legal boundary.

If this is not the case then there may be an obligation for a party to formally transfer land to their neighbour. In order to increase the chance of the boundary agreement binding successors in title, the agreement should be in writing and registered against the respective parties titles.

Determined Boundary

HM Land Registry (HMLR) does not determine a boundary in the sense of resolving a disagreement as to where the exact line of the boundary is located. Instead, having identified the exact line HMLR will identify that the boundary has been determined.

Usually, both parties would instruct an expert to identify the boundary and an application is made to the HMLR to record a determined boundary. The registrar must then decide whether they are satisfied that:

  • the plan identifies, or the plan and verbal description identify, the exact line of the boundary claimed,
  • the applicant has shown an arguable case that the exact line of the boundary is in the position shown,
  • the registrar can identify all the owners of the land adjoining the boundary and has an address at which each owner may be given notice.

If agreement between neighbours is not achievable and parties are not open to being bound by the report of a single joint expert, other options are available to a party to define a boundary. If so, only a Court or Property Tribunal can determine a boundary dispute.  The route taken depends on the individual circumstances of each case, which we will examine now.

Adverse Possession

The legal boundary can be altered by adverse possession, also known as squatter’s rights. The length of time you need to show you have adversely possessed land varies depending on whether the land is registered or unregistered land. There are however two elements to a claim for adverse possession:

  • Uninterrupted and exclusive factual possession of the land  for a period of 12 years for unregistered land and 10 years for registered land
  • Intention to possess the land during that period.

Where a person occupies their neighbours land without their permission, demonstrates that ownership (such as erecting fencing) with the necessary intention to exclude the true owner, the Land Registry may recognise their right to be registered as the owner.

This often applies in boundary disputes where a boundary has historically been moved from the original legal boundary and a number of years have passed.  Even if an original conveyance shows that the land in question fell within a different person’s title, you can still claim ownership by applying to the Land Registry relying on adverse possession and provided you meet the necessary requirements. The rules for adverse possession are complex and we can advise you if this applies.

Court Application for Declaration of the Legal Boundary

A court can make a declaration as to the legal boundary between two or more properties. The court also has the power to consider an award for damages or order an injunction to prevent trespass and/or an encroachment. 

This is often used by a party in dispute to bring an end to it.  You would have to provide evidence to show why and where you believe the boundary to be. This claim will be served on any party who may be affected by the declaration so that they are given an opportunity to defend the claim.

The benefit of this is that if you are unable to resolve an ongoing dispute, the successful party is usually entitled to recover some of their legal costs. Again this is a complicated area of law and you should always consult a solicitor.

Next Steps

Expert Evidence

In most boundary disputes, it will be necessary to engage the services of an expert surveyor; either to provide evidence of where the boundary should be or draw up detailed plans for any litigation or settlement. We can assist you in choosing a surveyor with expertise of boundary disputes.

Negotiation

The court places strong emphasis on disputes being resolved by mediation, negotiation or by other alternative dispute resolution. There is also an expectation for parties to respect the over-riding objective that requires parties to try and settle a matter without the need for court or tribunal intervention.

Informal boundary agreements

A change of legal ownership of land cannot be registered without a transfer deed.  If an informal agreement is made between neighbours relating to a strip of land, to secure the legal title it would have to be registered with HMLR to bind successors in title.

Common Misconceptions

Land Registry Plan

Unless previously determined this only indicates the general location of a boundary and cannot be relied upon for its accuracy. The Ordnance Survey OS plans tend to mark features such as hedges and fences rather than legal boundaries. The scale means features may be out by as much as 2.3 metres.

Planning Permission

The Local Planning Authority is only concerned with public planning issues not private law rights. It is possible to obtain planning permission over land which you do not own and the grant of permission does not have any bearing on the ownership of the land in question.

The case of Acco Properties Ltd v Severn underpins many of the legal principles in play with boundary disputes.  While Judge Simon Barker QC said it was “economic madness” to litigate over a tiny strip of land, he upheld the right to do so.

The case emphasised the importance of bringing certainty to the boundary rather than leaving it ‘fuzzy round the edges’

The Acco case was, in fact, settled on the basis of an informal agreement that had been struck at a meeting to discuss the boundary. At that point, it was understood that, in cutting down two trees, one of the parties was doing so on his own land. The boundary line was, therefore, inferred from this. Given the uncertainties and potential cost, alternative methods of resolving disputes, such as mediation, are a very attractive and increasingly popular option. 

There are numerous misconceptions among the legal profession, surveyors and the public as to where boundaries lie, which if not remedied at an early stage can lead to acrimony and protracted disputes.

Our expertise lies not only in providing cogent advice on the legal basis for your boundary, but also resolving the dispute with your neighbour. We understand the often competing desire to protect your home against encroachment and the need to resolve matters in cost effective fashion.

Early intervention and legal advice can make all the difference. For more information on our expert litigation support contact Siobhan Perrigo on 01798 422021 or email petworth@andersonrowntree.co.uk