Boundary Disputes – Arguing Across The Fences
Few things are more stressful than a boundary dispute between neighbours. The Court of Appeal recognised this in the case of Wilkinson v Farmer [2010] All ER (D) 217 (Oct), where it recommended that professional advisors should warn clients of the potentially catastrophic costs and consequences of boundary disputes. In Wilkinson, a dispute over a small strip of land led to a legal bill exceeding £500,000.
In the UK, we are forced to live on top of each other. The land mass is the equivalent of New Zealand, the difference being New Zealand has 4.1 million souls, and the UK has 65 million people jostling for space and privacy. It is unsurprising, that boundary disputes can quickly develop and escalate.
The cause of boundary disputes
A legal boundary is an invisible legal line that signifies the extent of land ownership. In most instances this unseen legal line runs along a physical feature, like a hedgerow or a fence. However, this is not always the case and sometimes there is no physical feature on the ground or the feature denoting the boundary has been moved.
In January 2015, the Ministry of Justice released a study on boundary disputes[1]. It identified that the causes of boundary disputes can be divided into two categories; technical/legal and personal.
Legal/technical issues that can lead to boundary disputes include:
- lack of adequate evidence to confirm the physical location of the boundary coupled with an unwillingness of the other party to accept assertions about the location without proof being provided
- problems caused by changes in physical features of the land
- lack of clarity in the available documentation and consequential differences in interpretation or understanding of title deeds and plans
Unfortunately, the report found that boundary disputes are often the result of personal disagreements or antipathy between neighbours. Disputes may be used as a weapon between neighbours who have disagreements over other issues such as noise or the keeping of pets. It can also involve circumstances where developers seek to bully neighbours in adjoining properties to acquire extra land for development.
How property boundaries are determined
Title deeds constitute the primary evidence of a property’s boundary. If the boundary stated in the title deed is unambiguous, it prevails over other evidence to the contrary. Anyone is entitled to obtain the title plan of any registered property in England and Wales.
Neighbours can also make boundary agreements between themselves if property boundaries have not been defined in the title or have been defined but are unclear. Such an agreement should be made after seeking legal advice (and in some cases engaging a surveyor), put in writing, and signed by all parties. The agreement can then be added to the title plan of both properties.
As HM Land Registry title plans only refer to the general position of property boundaries, solicitors and the courts often must rely on deeds or legal presumptions in the event of a dispute.
Examples of how the courts will deal with a boundary dispute
Once again, it is crucial to point out that litigation relating to boundary disputes is rarely cost-effective. An experienced solicitor focused on your best interests will move heaven and earth to encourage parties to try and resolve the disagreement through alternative dispute resolution methods, such as negotiation and mediation. Not only do such methods work out cheaper, but they are also based on a win-win model which allows for a stronger possibility of respectful neighbourly relations to continue or be restored.
If a boundary dispute does reach court, case law demonstrates how unsympathetic the courts can be regarding providing relief for costs.
Rashid v Sharif [2014] EWCA Civ 377
In this case, the parties had gardens at the rear of their properties which met at the end. A wooden fence had run along the boundary line between the rear of the properties, but the preceding owner of the Sharif’s land had taken down the fence and replaced it with a brick wall. The Sharifs built a shed up against the wall. Mr Rashid also decided to build a shed and demolished the brick wall and built the back line of their breeze block shed along the line of the old brick wall, leaving the two sheds butting up against each other. Mr Rashid brought proceedings for trespass. The proceeding owner gave a witness statement which stated that he had built the wall on the boundary between his back garden and Mr Rashid’s back garden, and he had maintained the wall. The initial judge nevertheless concluded that the preceding owner had built the former brick wall on his land, which was now owned by the Sharifs. Therefore, by building the shed on the wall’s foundations, Mr Rashid had trespassed onto the Sharif’s land by 225 mm. The judge made an alternative finding to the same effect based on adverse possession. A mandatory injunction was granted, and Mr Rashid was required to reinstate the brick wall and remove the rear wall of their shed.
The Court of Appeal concluded the Mr Rashid, having built on a party wall and, having not complied with the Party Wall etc. Act, had trespassed. However, the trespass was only to a small extent compared with that suggested by the claimant. If the appropriate notices had been served and the procedures under the 1996 Act followed, the rear of the Sharif’s shed might well have ended up where it currently stood. The mandatory injunction could not stand. The appropriate order was for damages in lieu of an injunction. Damages for trespass were assessed at £300. But worse was to come. The Court of Appeal dismissed all claims for costs so that each party bore the burden of their own costs of the trial and the appeal, which would likely to have amounted to tens of thousands of pounds.
The Property Boundaries (Resolution of Disputes) Bill 2017-19
Regardless of the time, expense and stress caused by taking a boundary dispute to court, there are many who will fight the battle through to the Supreme Court if required, on seemingly little more than principle. Remember, most of humanity’s wars have been born out of battles over borders.
The Property Boundaries (Resolution of Disputes) Bill is currently awaiting its second reading in the House of Lords. The Bill is designed to manage the process of resolving disputes relating to the location/placement of boundaries and private rights of way.
If the Bill is passed, any landowner who wishes to establish a boundary or right of way on private land must serve a notice (and a plan) on their neighbour (or user of a private right of way) showing the proposed line of the boundary (or private right of way). If the recipient does not consent, a dispute is deemed to have arisen, and a surveyor will be appointed to set out their conclusions on the matter. The surveyor’s findings will be considered final and will only be subject to challenge if an appeal is made within 28 days to the High Court.
Codifying the procedure surrounding boundary disputes would be welcome and may save many a neighbourly relationship. In the meantime, if you are concerned about your property boundaries, you can talk to one of our property solicitors in complete confidence. We will look to help you remedy the issue in a way that preserves good relations between you and your neighbour and keeps legal costs from spiralling out of control.
Please note, this article does not constitute legal advice.
Hart Reade Solicitors are a full-service law firm with offices in Eastbourne, Hailsham, Polegate and Meads. We hold a Lexcel Accreditation from the Law Society of England and Wales. To make an appointment with one of our dispute resolution solicitors, please phone our office on 01323 727 321.
[1] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/395258/boundary-disputes-a-scoping-study.pdf