Boundary Disputes
JANUARY 2010
Boundary disputes can escalate very quickly with the parties involved becoming entrenched in their positions and unable, or unwilling, to compromise. Once litigation is commenced, the legal costs can spiral out of all proportion to the value of the land at the heart of the dispute. The courts are increasingly frustrated at precious time being taken up with matters that, in their view, ought to have been sorted out at an early stage. In Bradford v James [2008] EWCA Civ 837, Lord Justice Mummery stated:
“There are too many calamitous neighbour disputes in the courts… An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive…. Litigation hardens attitudes. Costs become an additional aggravating issue. Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties, possibly for both.”
A careful analysis of the facts right at the beginning may help to put matters into perspective. Emotions run high in boundary dispute cases, and they often end up in court to establish a matter of principle for the parties involved which may fly in the face of an objective analysis of the facts.
Of course, there are situations in which the positioning of a boundary is extremely important. It is then essential to ascertain, so far as is possible, where the boundaries lie. This is not as simple as it may seem on the face of it; for registered land, all too often the parties will examine the Land Registry title plans in the hope of determining the boundary. In fact, this is a futile endeavour as the Land Registry relies on the Ordnance Survey (OS) plans which do not identify the legal boundaries, only the physical boundaries of the land. Additionally, the OS plans are not accurate as there is a margin for error.
With registered land, it is therefore essential to examine all of the conveyancing documents and plans to ascertain the legal boundaries. Unregistered land is more problematic as the title deeds are often old and may be unclear and ambiguous. In such instances, the title deeds must be considered alongside the physical features of the land as at the time of the conveyance. This can involve site visits, expert evidence and the introduction of extrinsic evidence from the time the conveyance was made (e.g. aerial photographs, particulars of sale, family photographs, the conduct of the parties and witness statements).
Informal agreements between the parties can also alter the legal boundary in some cases. In Burns v Morton [1999] 3 All ER 646, the Court of Appeal held that the parties had entered into an implied boundary agreement after a fence was removed by one of the parties and replaced with a wall in a slightly different location, and there had been no complaint for 20 years.
Establishing the legal boundaries of a property can be a lengthy, expensive and stressful process for the parties involved. Relations between the parties involved in court action are likely to be irretrievably damaged: there are no winners in boundary dispute cases. Alternative dispute resolution (ADR) methods are actively encouraged by the courts, and are the sensible way forward. Compromise may save on costs (failure to comply with ADR may have severe costs consequences), but, perhaps more importantly, it may pave the way for repairing relations between the parties.
If you would like any further information about the issues raised in this article please contact Ellen Gallagher or any other member of Goodman Derrick LLPs property department on 0207 404 0606.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. |
