Resolving Boundary Disputes

Jon Maynard Boundaries Ltd, Boundary Demarcation and Disputes, Rights of Way, Expert Witness, Chartered Land Surveyor

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Boundary Dispute Resolution Methods

  You are here:    Boundary Problems | Resolution methods
Methods for resolving disputes
Consider the cost effectiveness of the resolution method
Amicably negotiating with your neighbour
Amicable use of expert advice
Resolution using solicitors
Alternative Dispute Resolution
     ADR - Mediation
     ADR - Expert Determination
     ADR - Adjudication and arbitration
     RICS Neighbour Disputes Service
Litigation
     Early Neutral Evaluation
     Court - Land Registration Division of the Property Chamber (First Tier Tribunal)
     Court - County Court
     Court - High Court
Giving the settlement permanence
Recent Developments in Boundary Disputes Practice

 

 

A disputed boundary is a problem to the properties on either side of it.
So why do neighbours fight other over the position of the boundary
When they should cooperate in fixing a problem that affects them both?

 

 

Methods for resolving disputes

The one method of dispute resolution that a great many people would find satisfactory - referral to a regulatory authority - is unavailable because there is no regulatory authority that deals with boundaries. Land Registry would be the obvious candidate for such a regulatory authority but, as Land Registry deals only with the general positions of boundaries and not with the exact lines of boundaries, Land Registry is incapable of fulfilling that role.

  FREQUENTLY ASKED QUESTION  
    
Boundary Diputes: How do I resolve a boundary dispute?
This is one of those simple questions that unfortunately requires a long and complicated answer.

That answer is available in our free guide. Download it now by clicking on its name:
Guide to Resolving Boundary Disputes


If you want further background reading then please also download our free giude:
Boundaries Essentials


You may also want to download our free guide:
Documentary evidence for investigating a boundary


Or if you want to understand how the land regsitration system in Engalnd & Wales limits the advice that a boundaries expert is able to offer then also downlaod our free guide:
Getting professional help with a boundary dispute

 

 

HOW BEST TO TACKLE A SMALL DISPUTE?

With no regulatory authority available, the best approach to a problem that affects your neighbour just as much as it affects yourself is to join forces with your neighbour and tackle the problem together for the benefit of both. All too often neighbours fail to see the wisdom in this and go looking for someone in authority to validate the point of view that they are trying to impose on a neighbour.

Let us take a look at the following conundrum:
Our boundary is marked by a stone wall standing beside our neighbour's driveway. A line of our trees stands beside the stone wall and overhangs it. We trim our side and the tops of these trees and the neighbours have cut their side for 20 years. They now would like us to cut their side too but at our expense.

Could you please clarify whether we are legally obliged to cut both sides of the trees at our expense?

There is no regulatory authority for this, and I certainly do not have powers with which to lay down the answer. Nor am I a lawyer, so will any lawyer who reads this please excuse me for explaining the situation in layman's terms?

The trees belong to the person who posed the conundrum and that person is surely responsible for their maintenance i.e. for trimming them. To allow the trees to grow across the boundary is to encroach upon the neighbour's land which is, in law, a nuisance. Gaining access to the neighbour's land for maintenance may in some circumstance be problematic. In that case the neighbour may take it upon him or herself to trim the trees, thereby relieving the encroachment, but in the process putting him or herslef at risk of being accused either of criminal damage to the trees or of theft of valuable parts (e.g. fruit) of the trees.

So now the neighbour no longer wishes to pay for part of the maintenance of trees that do not belong to him or her and a dispute arises.

What options are there for dealing with this conundrum? The owner of the trees could:

  • Negotiate directly with the neighbour to achieve a settlement of the dispute that has arisen; or
  • Agree with the neighbour to enter into a form of Alternative Dispute Resolution (ADR), and in the present conundrum I would recommend Mediation; or
  • Litigate against the neighbour, which according to the Ministry of Justice will be unduly bitter, expensive and time-consuming.

Litigation is likely to cost upwards of £40,000 (at 2016 prices), take upwards of two years to complete, and as for bitterness you should search the archives of the Daily Mail for their coverage of boundary disputes! The outcome of litigation is notoriously unpredictable, and for those who win it is practically always a Pyrrhic victory.

Mediation is going to appear very quick and cheap relative to litigation, but expensive relative to the additional cost of trimming the neighbour's side of the trees.

Common sense dictates that the most economic solution is to absorb the extra cost of trimming the heighbour's side of the trees.

 

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Amicable resolution of the dispute

It is sensible for you and your neighbour to simply get together to work out where you think the boundary is supposed to be according to the earliest pre-registration title deeds, deciding upon a precise position on the ground that is consistent with the, perhaps ambiguous, description in those title deeds. You can read this web site for advice on what documents may be useful.

You may be hampered in such a co-operative approach if either of you is unable to locate the relevant documents, if either of you is unable to understand the significance of the relevant documents, or if one of you has pre-conceived ideas from which he or she is unwilling to move.

It is important to consider the boundary as a problem that needs fixing and, since it affects both of you, you should cooperate to fix it together. All too often the matter that is addressed is not the ambiguity in the boundary description but the outrage felt by one landowner in response to some action by the neighbour, and outrage encourages antagonism and prevents cooperation.

If you are unable to reach an amicable settlement of the dispute then there is a number of ways in which you may settle a boundary dispute. The traditional method for settling boundary disputes, litigation, is recognised by the Ministry of Justice as being typified by disputes that are unduly bitter, expensive and time-consuming.

Expert Evaluation

If you and your neighbour are struggling to understand the issues surrounding the boundary that divides your two lands then it makes sense for you both to join in calling in professional help at an early stage. If you do this jointly then you can obtain an unbiased (i.e. neutral) opinion on those issues. This will tell you the relative strengths and weaknesses of the various pieces of evidence. It may give you a clear indication of how things might fall at trial in the event that the dispute is taken to litigation. This should focus your minds on the essentials, help you to agree on the best method for resolving the dispute, and has the potential to save you a great deal of bitterness, money and time. This topic is expanded upon later under the heading of Early Neutral Evaluation.

 

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There are numerous ways in which you may settle a boundary dispute:

Amicably:

  • by informal agreement between you and your neighbour;
  • by taking the advice of a jointly instructed expert in Boundary Demarcation and Disputes;

Alternative Disputes Resolution:

Alternative Disputes Resolution, or ADR, is a term used to describe a range of formal methods for resolving disputes that fall short of taking the matter to court. If, following an ADR process, a disgruntled party refuses to accept the outcome and insists on taking the matter to litigation in a County Court then that party should be advised that a court of law would be predisposed towards upholding the outcome of the ADR process.

Legal Action: or litigation

  • Land Registration Division of the Property Chamber (First Tier Tribunal);
  • County Court;
  • High Court.

In general terms, methods higher in the above lists will cost you less than methods lower in the list. This raises the issue of the cost effectiveness of the method that you use for settling the dispute.
 

It is worth seeing what two Appeal Court judges have to say about resolving property disputes: in the case of Oliver & Another -v- Symons & Another this was a dispute about a right of way rather than a boundary, and it was heard in the Court of Appeal in January 2012.

Lord Justice Elias
"This is a dispute about the extent of a right of way on farmland in County Durham. The disputed part of the right of way is little more than 100 metres in length. The costs of the litigation are enormous and wholly out of proportion to the practical importance of the issue: the appellants alone have expended in the region of £150,000.00 for their costs. This is a case which was crying out for mediation, even assuming that it could not have been settled more informally than that. It ought never to have come near a court ..."

Lord Justice Ward
"I also agree. I wish particularly to associate myself with Elias L.J.'s pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come."

 

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Consider the cost effectiveness of the resolution method

According to Wiktionary, cost effective is an adjective meaning "Returning a benefit that justifies the initial investment". The benefit to an aggrieved landowner is the return to his possession of the land that he believes is his. The initial investment is the total cost of achieving a settlement of the boundary dispute.

So what is the value of the disputed land that is the focus of the dispute?

Back in 2000, when I first wrote the Boundary Problems web site I stated that the value of development land was then about £60 per sq ft or £600 per sq m. Thus, if a neighbour replaced his fence such that he took a triangle of land 10 metres (33 ft) long by 200 mm (8 ins) wide at its thick end, you would be disputing a piece of land having an area of 1 sq m. You might, in 2000, have thought that was worth £600, and you will be wondering what it is worth today. I am not going to tell you because this method of valuing land is based on the false premise that someone, other than you and your neighbour, might be interested in purchasing that land.

So, the standard method for valuing the disputed land is to ask a chartered valuation surveyor to value your property as it stands, and to re-value it on the assumption that you are able to repossess the disputed land. The difference between the two valuations is the value of the disputed land. The exercise may be checked by making similar valuations of the neighbour's property. The result of the four valuations is usually that the ownership of the disputed land does not affect the value of either property - the disputed land has no measurable value.

 

If the benefit to be gained from a resolution to the dispute has no monetary value then it stands to reason that the resolution method must also cost nothing if it is to be cost effective. This logic suggests that almost all boundary disputes, if they cannot be settled amicably, should go unresolved. But surely, as this would allow any bully to prevail over a weaker neighbour, this would be a recipe for anarchy?

It is therefore necessary to make a decision as to how much money should be set aside to defend a principle that has great emotional value but no monetary value. The choice of resolution method should be based on such an evaluation.

As a general guide to the costs involved in resolving a boundary dispute, let me give the following examples.

The Royal Institution of Chartered Surveyors offers the RICS Neighbour Disputes Service as a hybrid expert determination / mediation service in 3 stages. The cost (in September 2015) is:
£1500 plus VAT for the Evaluation Stage;
a further £1950 + VAT for tyhe Negotiation and Compromise stage;
each plus any legitimate expenses incurred by the surveyor.
The fee may be paid jointly by the parties, or wholly by just one party.
Note that this service involves only one professional, a chartered surveyor, appointed jointly by the disputing neighbours; there are no solicitors or barristers involved and the overall cost of the dispute to the client/s is thus kept low.
Settlement may be arrived at after Stage 1, or it may proceed to Stage 2.

If there is no settlement then the matter will have to proceed to litigation and the RICS Neighbour Disputes Service offers a third stage of:
Expert Witness Reporting Stage at a further cost of £2200 +VAT.

By comparison, in 2003, two neighbours took their case to the county court. Each represented themself. Each asked their own chartered surveyor to attend court to give expert evidence. Whilst each had taken some kind of legal advice, there were no solicitors or barristers present in court. Even so, the two parties had between them spent £20,000 on resolving this case. Moreover, the Judge exercised his discretion to award costs to the party in whose favour he found, so that the loser was £20,000 worse off as a result of this case.

In 2005 two other neighbours took their dispute to a different county court. These two neighbours each used London barristers, one of them used a London solicitor, the other a local solicitor, and they each used the foremost expert witnesses. Between them they spent some £140,000 on resolving their case.

 

Having read these examples, you will conclude that the only way to avoid spending serious amounts of money is to amicably negotiate directly with your neighbour. The methods of Expert Determination and the RICS Neighbour Disputes Service are probably the least costly way of obtaining professional help that stand a chance of settling the dispute, and even this will cost upwards of £2,500.

All too often, amicable negotiation will not be possible. If this is the case then it will be necessary to evaluate the different resolution methods available and to decide which method is likely to find acceptance by your neighbour: this means both acceptance of the method as a viable means of resolving the dispute and acceptance of the outcome. And so you have to take account of your neighbour's views on how to work toward a resolution of the dispute and cannot simply steamroller through a settlement in your own favour on the presumption that your neighbour is a rogue and a scoundrel.

 

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Amicably negotiating with your neighbour

There need be no formalities at all surrounding an amicable settlement of your dispute. However, you and your neighbour would be wise to learn about boundary demarcation and land registration and to apply that learning to the circumstances of your own case before taking any action to resolve the dispute.

You should also give some attention to the implications of the proposed outcome and to a means of recording that outcome in order to prevent the dispute arising again at a later date. Remember that where the description of a boundary in the title deeds is unclear the law allows two adjoining landowners to agree the position of their common boundary for the purpose of clarifying that description. You may therefore ask Land Registry to note on the title registers the boundary agreement that you and your neighbour have made. However, Land Registry will be unwilling to note the agreement if they feel that the effect of the agreement is to transfer the land from one party to the other rather than to clarify the boundary description.

If you want greater precision in your boundary description then you will want to apply to Land Registry to determine the exact line of the boundary. This is a misleading title for the service, as it is up to you and your neighbour to decide precisely where the boundary runs and to engage a suitably qualified surveyor to prepare the necessary plan and description for you. Land Registry has, for the sake of clarity, now re-named the process as "Exact line of boundary: registration (DB)".

If you and your neighbour wish to apply to Land Registry to record either a boundary agreement or an exact line of boundary then you will find guidance at https://www.gov.uk/your-property-boundaries. Please note that for an exact line of boundary you will need to ask a chartered land surveyor to make the necessary plan.

Alternatively, lands surveyors who practise as boundary surveyors will be pleased to make the applications for you.

 

Amicable use of expert advice

Rather than learn about boundary demarcation and land registration for yourselves, you and your neighbour may prefer to engage an expert in boundary determination and disputes and to put his knowledge and accumulated experience to work for you. Jointly instructing a single expert will both reduce costs and reduce the risk of confrontation between you and your neighbour. A suitable expert will also be able to prepare either an agreed boundary plan or a determined boundary plan for noting by Land Registry on the registers of your respective titles.

Some boundaries experts are now offering Early Neutral Evaluation (ENE). This requires a joint instruction from the parties, who must therefore still be on sufficiently amicable terms to be able to co-operate with each other in resolving the dispute. ENE offers an experienced evaluation of the strength of the evidence available and suggests the most appropriate method for resolving the dispute, whether that be by amicable negotiation and a boundary agreement, by expert determination, by mediation, or by litigation. In the event of the latter, the expert's evaluation will advise which issues should be pursued and which are irrelevant to the litigation process.

 

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Resolution using solicitors

When faced with a boundary dispute, many landowners turn first to a solicitor for legal advice. After all, land ownership is a legal matter. Hopefully, they will instruct a solicitor who specialises in property law, neighbour disputes, or property litigation, rather than using a generalist. Having discussed the problem that the client is facing, most solicitors will suggest that they write, on their client's behalf, to the neighbour with a view to setting matters right.

Many other landowners, when they receive a letter from their neighbour's solicitor alleging some infringement over the boundary, will also consult their solicitor. Their solicitor will usually suggest that the neighbour's claims are rebutted.

Thus begins a series of correspondence with ever increasing allegations and demands made by both sides. Whilst the initiating solicitor, and quite possibly the responding solicitor too, intended to resolve the dispute through the exchange of correspondence, the result is usually a greatly increased level of confrontation that places the two neighbours further apart than they were at the beginning of the dispute.

Up to this point, many solicitors will not have considered recommending to their clients that they jointly instruct an expert in boundary demarcation because an expert represents an expense that they were hoping to avoid. But by now the solicitors will have incurred significant fees, and the dispute will have become so heated that the solicitors are not going to be able to resolve it without outside assistance. And because the dispute is so heated, neither neighbour will agree to a joint instruction, so the cost of expert opinion, in the form of an expert report conforming to part 35 of the Civil Procedure Rules Part 35, is doubled as each party appoints its own expert. This is when hindsight suggests that an expert evaluation made at an early stage would have been beneficial.

In some cases I have known the solicitors to each party seek Counsel's Opinion (i.e. the advice of a barrister) on the legal strengths and weaknesses of a client's position before they suggest appointing an expert to advise on the true position of the boundary as indicated by the deeds and by any relevant extrinsic evidence. Perhaps this is because the solicitor doesn't know any trusted experts who can advance everyone's understanding of the boundary (or of other pertinent issues). In my view it is essential to consult an expert prior to consulting a barrister, as barristers need an expert's interpretation of the evidence before they can assess the strengths and weaknesses of the legal arguments that may be appropriate to the particular case. Sometimes, expert opinion may be all that is needed to resolve the dispute. And, surely, experts charge less than barristers?

If they are unable to achieve a settlement of the dispute by their own efforts, some solicitors will suggest, whether or not they have obtained expert's and counsel's opinion, that the clients engage in one form or other of Alternative Disputes Resolution (ADR). A good solicitor will suggest this at an early stage, thereby keeping his client's expenses as low as possible. ADR methods are discussed below.

Other solicitors may suggest that the dispute is taken to court to be tried: they may be forced to do this if ADR has been attempted and has failed to result in a settlement of the dispute. Courts are discussed below.

It is when litigation is unavoidable that solicitors come into their own. A property litigation solicitor will manage and be the focal point for all communications relating to your dispute. He or she will advise on all the documents you will need to obtain to support your case, and will be able to instruct an expert (if you haven't already instructed one yourself) and a barrister on your behalf.

 

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ALTERNATIVE DISPUTE RESOLUTION

 

ADR - Mediation

The advantages of Mediation are that the process is confidential, speedy, cost effective and final.

Mediation should be the ADR method of choice because it is the only dispute resolution method that leaves the decision making entirely with the parties. The mediator's role is to be a facilitator of negotiation between the parties, and record the settlement resulting from those negotiations, and this role includes no decision-making powers. The settlement arrived at will be legally binding on the parties.

It is important that the mediator for a boundary dispute has a background in property law. Although the focus is on the interests of the parties rather than on the legal rights alone, it would be unfortunate if the agreement that results from the exercise took no account of the law.

It is in principle unsound to determine the true position of a boundary through the process of mediation. It would, however, be legitimate for the parties to a dispute to negotiate (through mediation) a settlement to a dispute that involves knowingly altering the position of a boundary (and taking the appropriate legal steps to record that alteration) in return for some concession by the party that benefits from the movement of the boundary.

A good mediator will limit the tendency of either party to use the mediation as a means of unloading their grievances and will focus the parties on moving towards a settlement of the dispute. It is perfectly possible for a boundary dispute to be settled in a single day of mediation.

For a very clear and concise explanation of how mediation works, please see Resolving boundary disputes ‐ Lesson 6: Mediation on the Party Wall & Boundaries Hub, a web site operated and maintained by Nick Isaac, barrister, of Tanfield Chambers.

Another excellent article is How to prepare, properly, for mediation, written by Jacqui Joyce and originally published in the Estates Gazette is now available as a Mediation Blog on the web site of the Property Mediators. on the Party Wall & Boundaries Hub, a eb site operated and maintained by Nick Isaac, barrister, of Tanfield Chambers.

I have concerns as to whether mediation is an appropriate method for resolving boundary disputes. This is because mediation is very solidly based on negotiation. When the boundary was created it was intended to occupy a particular position, and that position is not open to negotiation. Admittedly, the description of that boundary is highly likely to have been ambiguous. Thus it would be appropriate for two experts in boundaries to negotiate a position for the boundary within the parameters of the ambiguity inherent in the boundary description. The parties to the mediation are without exception inexpert in boundary demarcation and are incapable of understanding the parameters of ambiguous descriptions. The mediator's role does not include the power to act as a referee. I am concerned that mediation is an inappropriate mechanism for determining the true position of a boundary.

That is not to say that mediation is inappropriate for all boundary disputes.

It may be that finding the true position of the boundary is not all that is required to settle the dispute. There may be something additional that one of the parties wants or needs (see the list of examples under the heading "What is the real problem?" on the Psychology of neighbours in boundary disputes page that can best be achieved by negotiation and which the other party is unwilling to discuss. By linking this need to a dispute about the boundary, and taking the dispute to mediation, it may be possible to bring that party's want or need back into discussion and to negotiate a settlement of that want or need.

 

ADR - Expert Determination

The advantages of Expert Determination are that the process is confidential, speedy, cost effective and final.

If the outcome of an Expert Determination is binding on the parties then it stands to reason that the parties need to identify an expert who really knows what he is doing.

  • At one end of the scale is the "property professional" who thinks that boundary disputes are a property matter that he can deal with, when in truth he is able only to dabble in things he doesn't know a great deal about.
  • Somewhere in the middle of the scale is the pundit who relies on training and past experience to give what can only be described as an "opinion".
  • At the other end of the scale is an expert in boundary demarcation and disputes who is prepared to thoroughly study and analyse the documentary and the physical evidence and to draw conclusions based upon his analysis of the evidence in a manner reminiscent of a forensic scientist.

It should go without saying that it is the last of these three kinds of expert that you require for your expert determination. But how do you find out if the expert you are approaching fits into that category?

  • Firstly, ask the expert what percentage of his annual workload comes from acting as an expert witness in boundary demarcation and disputes. It should be a high percentage if the expert is to have credibility in your eyes.
  • Secondly, ask the expert for the names of any solicitors or barristers who can vouch for the standard of his work. Then telephone those solicitors and/or barristers and take heed of what they say.

For further information concerning expert determination please refer to Jon Maynard Boundaries Ltd's Expert Determination page.

 

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ADR - Adjudication and arbitration

These are methods that are sometimes cited as being an appropriate way to resolve a boundary dispute. However, neither seems to be the case.

Adjudication is more usually set up by a particular industry as a quasi-judicial method of resolving the kinds of dispute that dog that particular industry. Boundary disputes usually involve neighbouring landowners who work in different industries from each other, and their dispute has no direct relevance to the industry in which either of them works.

Arbitration is often included as a clause in a contract between two parties who enter into a business relationship with each other: its purpose is to provide the parties, in the event of a dispute, with a resolution mechanism avoiding the need to take the matter to court. Next door neighbours do not have a contractual relationship with each other, so it is hard to see how arbitration might be applied to a boundary dispute.

Adjudication and arbitration have the disadvantage of taking the decision making process out of the hands of the parties to the dispute, in much the same way as referring the matter to a court of law does. Surely, mediation is a more appropriate method than adjudication or arbitration for resolving boundary disputes? If the parties are so entrenched in their views that mediation is impossible, then expert determination of the position of the boundary by an expert in boundary demarcation is far preferable to leaving the matter to an arbitrator or adjudicator who has little or no knowledge of boundaries and of property law.

 

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ADR - RICS Neighbour Disputes Service

RICS (the Royal Institution of Chartered Surveyors) offers a service that is a significantly cheaper and quicker alternative to the courts. The RICS Neighbour Disputes Service is a hybrid ADR that offers a three stage process of Expert Evaluation, Negotiation and Compromise, and Expert Witness Reporting. The parties have the option of settling at the end of either the first or the second stage, with the option of having the expert prepare a report in the event that settlement is not achievable and that the parties wish to proceed to litigation.

 

LITIGATION

To litigate means to go to law or to be party to a lawsuit. In other words, to seek to settle a dispute by means of the decision of a judge handed down in a court of law.

Before deciding to litigate, a landowner should consider what it is he aims to achieve by the process. If his expectation is to receive justice, perhaps to punish his neighbour for perceived wrong-doing, then he will be disappointed. A Judge will view the trying of a boundary dispute as an exercise in resolving a civil dispute between neighbouring landowners who are incapable of resolving the dispute themselves and who have tried and failed to resolve the dispute by means of one or more of the methods outlined above.

The Judge is normally interested only in establishing the position of the disputed boundary on the basis of the evidence presented to him and on the legal arguments put to him. The behaviour of either of the parties during the course of the dispute that has been brought before him is not a deciding factor in establishing the position of the boundary.

The landowner who wishes to resolve his boundary dispute through litigation should also be aware that whilst he himself sees the dispute as a matter of overridingly important principles, the judge may think differently. The judge is going to think of it as a very expensive court procedure being used to settle a dispute over a very small piece of land whose inclusion within or exclusion from either property has little or no bearing on the value of either property. In other words, the judge will consider the trial as a very expensive fight over the ownership of a very small piece of land that has no monetary value. In such circumstances the judge is unlikely to show any sympathy to the principles to which one or other of the parties clings so dearly.

There is a school of thought among the judiciary that a trial in a court of law is not the most appropriate means of resolving a boundary dispute. Accordingly, there are instances where a case has been brought to court without the litigants first attempting an alternative method of dispute resolution and where the judge has directed at a pre-trial hearing both:

  • that the parties must first attempt ADR;
  • and that if they fail to resolve the dispute by such methods and if the matter is brought back to the court, then the judge will exercise his discretion and make no award of costs (usually, the winning party may ask the court for an award of costs, which the losing party must pay, to compensate them for the expense they have been put to, expense that would have been avoided had the losing party conceded at an earlier stage).

Such a direction is clearly intended to encourage the use of ADR in preference to a court.

Once the boundary dispute reaches court, how is the position of the boundary determined?

In the best traditions of adversarial trials, each party:

  • will be represented by a barrister (to advance the legal arguments in his client's favour),
  • will have instructed an expert (to give an independently derived expert opinion - which is not prejudiced in favour of the client who is paying his fees - as to certain matters of evidence), and
  • will produce a stream of witnesses of fact (who will attest, without commenting or forwarding an opinion on them, to certain facts that are relevant to the case).

Thus there are six streams of information being channeled towards the judge, who has to try and make sense of them all, balance one against another, decide what is relevant, what is erroneous or misleading, and come to a Judgment. In any given case it is difficult to predict which legal argument will prevail, which expert's opinion is to be preferred, or whether one of the witnesses of fact will produce a piece of evidence that outweighs everything else before the judge. For this reason, boundary disputes have a reputation for unpredictable outcomes, to the extent that some lawyers describe them as a lottery. This unpredictability is another factor that the would-be litigant should consider before deciding to take his boundary dispute to court.

The court has discretion to direct whether or not expert evidence is to be admitted. The courts also have discretion to direct that the parties appoint a single joint expert (also known a joint sole expert), but such a direction is not usually given if the parties have each already instructed their own expert. Using a single joint expert reduces from six to five the number of information streams that the judge has to consider. But this does not make the outcome of the trial any easier to predict.

The parties, of course, have the right to litigate in person. Whilst this will remove one or both of the barristers from the court room, it does not reduce the number of information streams directed at the judge. In fact, it makes the judge's job harder as he has to make allowance for the fact that litigants in person will be less familiar with the law and with court procedures than are lawyers (be they barristers or solicitor advocates).

What factors will a judge consider during a boundary dispute trial?

  • Statute Law. This will not tell him where the boundary is located but it will specify the legal framework within which his Judgment may be made.
  • Legal Precedent, also known as case law. The judge will want to know whether the circumstances of the case before him match those of any other case that has been tried within the same jurisdiction (or within other jurisdictions that adhere to similar legal principles). The barristers will of course bring to the judge's attention any cases that they feel are similar.
  • One thing the judge is most unlikely to consider is the position of the general boundary shown on Land Registry's title plans for the parties' respective properties. To understand why, you need only read the Joint Statement made by Land Registry and Ordnance Survey.
  • The legal boundary by paper title is the obvious starting point for any boundary dispute trial. It is the job of the expert witness to interpret the original title deeds onto the ground so as to provide an expert (not legal) opinion as to its position.
  • It is often the case that the description of the boundary in the original title deeds (i.e. the first conveyance relating to the parcel of land) is ambiguous. Given that the boundary was created by the vendor who first sold the parcel of land, and that the conveyance is an expression of the original vendor's intentions, the judge may wish to deduce (with help from the barristers, and/or the experts, and/or the witnesses of fact) what those intentions were.
  • In an attempt to uncover the original vendor's intentions some judges will admit extrinsic evidence, such as contemporary documents (maps, planning drawings, photographs and aerial photographs).
  • Sometimes it is necessary, for lack of contemporary extrinsic evidence, to use more recent extrinsic evidence to identify the position of the legal boundary by paper title. Such evidence may include the subsequent actions of the owners of the land to either side of the disputed boundary. Some judges have taken such evidence into account whilst other judges have ruled it irrelevant to an understanding of the original vendor's intentions (see Solicitor's Journal, Vol 154 No. 27, 13 Jul 2010, pp 13, 14).

Having established the position of the legal boundary by paper title, the judge will want to consider whether its position has been modified by any subsequent action or process, such as:

  • an agreement, or a purported agreement, (whether written or verbal) as to the position of the boundary that may have been made by the litigants, or between their predecessors in title - the court would normally uphold such an agreement. A decision made by Megarry J. in Neilson v Poole (1969) 20 P&CR 909 holds that "a boundary agreement is in its nature, an act of peace, quieting strife and avoiding litigation and so it is to be favoured in the law"
  • estoppel
  • adverse possession

If a potential litigant thinks he has a strong case and that nothing can stop him from winning, he should carefully review the two bulleted lists preceding the present paragraph. It should become clear to him that any one of the items on either of the above lists is capable of derailing his case. Little wonder then that litigation over a boundary dispute is sometimes described as a lottery.

It is perhaps useful to reiterate the principle points that should influence would-be litigants.

  • Civil courts do not seek to dispense justice: they seek to resolve civil disputes;
  • To take a boundary dispute to court is to conduct a very expensive argument over something that the court will see as having little or no monetary value, and judges may be unsympathetic towards the parties in such cases;
  • Courts are known to try to encourage the parties to resolve their disputes by methods other than litigation in court;
  • The outcome of a boundary dispute trial is notoriously difficult to predict;
  • The award of costs in favour of the "winning" party is not automatic.

 

The present description of the litigation process has been written from the point of view of an expert witness. Whilst it contains information that is undoubtedly helpful, there will be plenty more that a would-be litigant will wish to know that an expert witness is unable to tell him. To find out more about the process of litigation, a would-be litigant should consult a solicitor who specialises in property litigation.

 

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Early Neutral Evaluation

In keeping with its desire to reduce the number of boundary disputes that go to litigation, in 2015 the Ministry of Justice increased County Court judges' case management powers by amending Part 3 of The Civil Procedure Rules. Rule 3.1 (2)(m) states:
"(2) Except where these Rules provide otherwise, the court may
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case."

If the court is likely to order ENE anyway, then why not pre-empt that decision and agree with your neighbour that ENE is a vital first step in resolving the dispute?

If the dispute concerns technical issues, e.g. the position of the boundary as described in the title deeds, then the Evaluator should be a boundary disputes expert.

If the dispute concerns legal issues, e.g. whether one of the parties has acquired legal rights over a part of the other party's land, then the Evaluator should be a barrister who specialises in property litigation.

The aim of ENE is to assist the parties at an early stage, to assess the strengths and weaknesses of the evidence, to advise the parties on how things might fall at trial, to assess the best method of resolving the dispute, and to save considerable costs and time by focussing on the essential issues of the case and steering the dispute away from litigation.

There are clearly many advantages in this approach as it holds the potential to reduce the bitterness, cost and the length of time that traditionally bedevil a boundary dispute.

ENE will not of itself settle the dispute, but because it is non-binding on the parties it leaves the next decision in the hands of the two parties. This gives the parties a sense of control as well as providing guidance as to the best method for settling the dispute.

 

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In the context of a boundary dispute there are three courts to which the parties may turn.

 

Court - Land Registration division of the Property Chamber (First-tier Tribunal)

This court is not a part of, and is independent from, Land Registry. It is a part of the Tribunals Service of the Ministry of Justice.

On 01 July 2013 the Land Registration division of the Property Chamber (First-tier Tribunal) took over the responsibilities of The Adjudicator to Land Registry that were created by the Land Registration Act 2002 to resolve disputes about registered land in England and Wales. These disputes may be referred to it by Land Registry, or members of the public may apply directly to the Tribunal.

The Tribunal is an independent judge. Hearings of the Tribunal may take place either at their headquarters in London or at some court room (for example, another Tribunal (e.g. Employment Tribunal), a Magistrates Court, a County Court, or a Crown Court) located more conveniently near to the properties that are subject to the dispute. Hearings are normally conducted less formally than in a County Court.

You can find out more at the web site of the Land Registration Tribunal

HM Courts & Tribunals Services offers A short guide for users of the Property Chamber Land Registration Division First-Tier Tribunal.

 

Court - County Court

The HMCS website informs us that: "There are 216 county courts dealing with the majority of civil cases, as well as some family and bankruptcy hearings. A large number of cases come before the county courts and it is here that all but the most complicated civil law proceedings are handled."

Because of the large number and widespread distribution of County Courts, the majority of the boundary disputes cases in England and Wales are dealt with at a County Court.

 

Court - High Court

The High Court deals with higher level civil disputes and will aapeals against decisions in the County Courts. The High Court is located at The Royal Courts of Justice in the Strand in London.

 

Giving the settlement permanence

It is generally supposed that judgment made by a court brings finality to a dispute. Some litigants will seek leave to appeal a judgment to a higher court, but eventually finality is achieved. Or is it?

There have been occasions where I have been appointed to a dispute only to discover that the same boundary has previously been the subject of a dispute that was settled in the County Court. On one occasion the parties to the earlier dispute still lived at the same addresses and were again disputing the same boundary. In each case, application had been made to the County Court for a copy of the judgment that had been handed down in the earlier dispute. In each case the application was met with the response that the County Court does not retain records more than six years old.

It follows that in every court case the parties should either petition for an order to record the boundary that results from the judgment as an application to Land Registry to register the exact line of the boundary, or in the absence of such an order to agree with each other to apply to Land Registry to register the exact line of the boundary. This will then create a permanent record of the boundary that results from the judgment.

 

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RECENT DEVELOPMENTS IN BOUNDARY DISPUTES PRACTICE

In January 2015 the Ministry of Justice published "Boundary Disputes - a scoping study".

To a boundary disputes expert such as me, the major finding of the study was the identification of four "personal issues" and seven "legal issues" as the main causes of boundary disputes. Curiously, the Ministry of Justice appears to have no interest in tackling these main causes of boundary disputes. Perhaps the "personal issues" are beyond the reach of legislation, but surely there is plenty of scope for dealing with the legal issues?

The study did not establish how many boundary disputes occur. It did find "that disputes are sufficiently numerous and serious for improvements to the ways they are resolved to be worthwhile."

The study concludes: "We therefore propose exploring further: the scope for improving court and tribunal procedure: encouraging the use of mediation and independent expert determination; and making better information available with a view to making more definite conclusions in 2015."

 

In 2015 a modification to the Civil Procedure Rules gave the County Court increased case management powers. Rule CPR 3.1 (2)(m) was introduced to allow the court to order an Early Neutral Evaluation (ENE).

The aim is to streamline cases by getting either or both of a single barrister to review the legal issues relevant to the case and a single expert to review the technical issues relvant to the case so as to focus the court's attention onto the relevant issues at an early stage of the proceedings.

The added bonus of such evaluation/s is that the parties to the dispute would each be made aware of how their case was likely to proceed and each be encouraged by the evaluation/s to find a settlement before the litigation proceeded any further. There is the added bonus that an instruction from the court to commission an ENE tends to encourage the parties towards collaboration and away from adversarial conduct, rendering an out of court settlement more likely.

 

The following, italicised paragraphs are taken from REPORT OF THE CIVIL JUSTICE COUNCIL WORKING PARTY IN RELATION TO BOUNDARY DISPUTES.

In 2016 the Civil Justice Council was invited by the Ministry of Justice to put forward recommendations as to the means of improving the resolution of disputes between individuals concerning the boundaries to their land.

The principal concern was the impression that litigation through the court process was a cumbersome and expensive way in which to define a boundary between two properties. At the conclusion of any litigation the parties were likely to remain neighbours probably on worse terms than previously.

It followed that the most appropriate way of dealing with disputes of this nature was to try to avoid litigation altogether or if it could not be avoided then to ensure that the case was prepared at proportionate cost with both parties exchanging all relevant documentation at an early stage.

A Private Members' Bill advanced by Lord Lytton who is a Chartered Surveyor suggested that one way of resolving boundary issues would be to create a structure which broadly replicated the provisions of the Party Wall Act and the Working Party also considered this proposal as part of its remit.

From the initial meetings it became clear that: -

There was no great enthusiasm for a system akin to the Party Wall Act. There were often issues involving adverse possession, prescriptive rights, Rights to Light and Rights of Way and a delineation of a boundary per se would not resolve those issues.

[With a three-surveyor system akin to the Party Wall Act ...] The level of expenditure would ... be appreciable.

Once proceedings are issued it is very difficult to contain costs. ... It followed that the main object of any change must be to encourage alternative forms of dispute resolution at as early a stage as possible before such substantial costs are incurred.

RECOMMENDATIONS

1)-The Council should publicise by its website and general circulation to interested parties a guide for potential litigants in Boundary Disputes. [Such a guide is to the best of my knowledge in preparation.]

2)-Boundary disputes throw up the potential for too many other issues whether legal or social to enable the matter to be determined in a similar manner to the Party Wall Act.

3)-The parties should still be able to use the adjudication process enabled by the Land Registry Division of the First Tier Tribunal (Property Chamber) and this scheme has the benefit of its free mediation service and a level of expertise from a Tribunal Judge experienced in this area of the law. It is recommended that this somewhat underused procedure should be more extensively publicised.

4)-If legal proceedings take place then the powers available to Judges of effective case management should be considered and must be used. These would include compulsorily staying the proceedings to enable the parties to attempt ADR, [and the preferred method of ADR appears to be mediation.]

5)-Overall the documentation available to both professionals, the voluntary advice sector and potential litigants must stress the need to produce a cost-effective solution and regard legal proceedings as a last resort.

 

The Property Protocols website is a free suite of documents that outlines, in readily understandable prose, a series of practical steps that parties and their advisers should consider taking if they wish to avoid property disputes (or if not avoid altogether, deal with them in the best way possible).

The Property Protocols website's latest product (issued in 2017) is The Boundary Disputes Protocol.

That protocol has been shown to the Boundaries & Party Walls Working Group of the Royal Institution of Chartered Surveyors, and they have refined it and amended its optimistically short time scales for each of the procedures. That amended version is not yet available, but I understand that it has been shown to the Civil Justice Council Working Party in Relation to Boundary Disputes.

 

 

How has the above affected the practice of boundary disputes?

The emphasis of the above is to reduce the need for litigation and increase the take up of Alternative Disputes Resolution (ADR) methods.

My own practice continues to receive requests for CPR part 35 Expert Reports.

I have seen no increase at all in the volume of requests for Expert Determination. I have never been asked to perfom an Early Neutral Evaluation.

My practice has nevertheless been affected by the developing trends described above, and my practice is not alone in reporting this.

It used to be that a client's case involved:
- a site visit for consultation and a survey of the land;
- a period of intense concentration to produce a report;
- perhaps a meeting with the client and their solicitor to discuss the case;
- perhaps a meeting with the client, their solicitor and barrister as trial approached;
- perhaps an appearance in the witness box and a further site visitr to mark out the boundary decided on by the court.
In between the above actions there was plenty of time to do similar things for other clients.

These days there appears to be a continuous stream of clients who are trying to avoid court, and sometimes avoid lawyers, and use only their boundary surveyor to try to achieve settlement of the dispute. What's wrong with that? After all, surveyors charge less per hour than lawyers and the Civil Justice Council is endeavouring to reduce the costs of boundary disputes to more proportionate levels.

There would be nothing wrong with that if boundary surveyors possessed the powers necessary to achieve resolution of boundary disputes.

The only area in which I have the power to tell Land Registry the exact line of a boundary is on those rare occasions when two clients jointly instruct me to perform a legally binding Expert Detrermination. In all other circumstances Land Registry has the power to summarily reject my exact line of boundary plan, which runs the risk of turning an amicably agreed boundary into a boundary dispute.

I, unlike a District Judge, do not have the power to force a client, let alone that client's adjoining landowner, to submit themselves to any form of alternative dispute resolution as a means of resolving the dispute.

The nett result is threefold.
Firstly, I am spending much more time than in the past on clients who do not require an expert report, leaving me with less time for those periods of intense concentration on those expert reports that still need writing.
Secondly, it makes it even more difficult to schedule the workload of individual cases.
Thirdly, it results in me servicing fewer clients per year.

Given that the Royal Institution of Chartered Surveyors, based on the number of callers to its Boundary Disoputes Hotline each year, believes that there is a shortage of boundary disputes experts in England & Wales, that third effect is worrying.

 

In this author's view, whilst the ongoing efforts to improve court and tribunal procedure and to encourage the use of mediation and independent expert determination are laudable, there is a very real need to look at ways of tackling the causes of boundary disputes that is being ignored.

 

 

Hyperlinks to references

Litigation and enforcement in UK (England and Wales): overview

 

 

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