Boundary disputes between neighbours are unfortunately not rare. The lockdown during the Covid crisis has seen an increase in instructions from individuals approaching lawyers complaining that the people next door are “neighbours from hell”.
In this article Brethertons Dispute Resolution Partner, Sioban Calcott, gives some practical tips that warring neighbours may wish to consider.
What issues do neighbours argue about?
There are many and boundary/neighbour disputes can take all kinds of forms. It can be a dispute over a fence, drainage ditch, a right of way, a badly built house extension that encroaches over a boundary, the location of drains or disputes over trees and hedges. Disputes can also include trespass, noise, parking or nuisance claims.
How can I determine the boundary?
The first step is always to check title deeds, the conveyancing solicitors’ report (if there is one) and the original conveyancing solicitors’ file if it still exists. Please bear in mind that lawyers are entitled to destroy files after certain periods of time.
An early stopping off point to resolve a boundary will also be contacting the Land Registry. It is important to note that the plan held at the Land Registry will only provide a general guide, unless it is specifically stated in the deeds that the plan is definitive.
Can I resolve the issue by applying to the Land Registry?
In some circumstances it might be possible to apply to alter the Register and have the boundary determined. If an objection is made to an application lodged with the Land Registry, the case may be referred to the Land Registry division of the First-tier Tribunal (Property Chamber). Some of the work is carried out on paper but the dispute can be resolved in a hearing at which the Tribunal Judge will come to visit the disputed area. Quite often a Tribunal will hold the hearing at a place convenient to the parties. We have known Tribunal cases to be held in hotels and other premises more salubrious than Courts.
How long will it take to resolve an issue?
Usually the answer to this question is how long is a piece of string? However, it can take years. That assumes that there are no appeals. It is quite common to read cases in the legal and indeed national press, about parties who have practically bankrupted themselves arguing over issues that are seen by others as quite minor.
Can the dispute be resolved through mediation?
Lawyers representing parties in boundary disputes should always discuss with them the prospect of entering into alternative dispute resolution or mediation.
If the parties litigate, then they can expect the judge, at some stage in the process, to recommend that they consider mediation if they have not done so.
Embarking on mediation should not be regarded as a sign of weakness. Firstly, the Court will expect the parties to have tried to resolve the matter before litigating. Secondly, if the parties do not try mediating, the Court can make significant cost orders disallowing costs if the parties do not try mediation. Thirdly, a mediation may well flush out issues that parties were not aware of, which may prove to be useful in the event that the matter has to proceed to trial.
Can I issue proceedings in the County Court?
If the parties are considering litigation, a Court will expect there to have been some discussions and negotiations before proceedings are commenced.
However, if a matter is to go to Court, then the Court will expect the parties to have set out clearly their respective cases and exchanged relevant material to support their case.
At a Direction hearing, a judge may order expert surveying evidence to be obtained and provide a timetable to trial.
Will I recover all of my legal costs?
It’s very unlikely.
It may sound odd to read this in a blog by a litigation lawyer, but if you are confronted with a boundary dispute issue, one of the important things is to try and avoid litigation at all costs. There is an old legal maxim that the “law is like Claridge’s open to everybody”. It’s expensive. The costs that can be incurred in boundary disputes can quickly rack up. It is not unheard of for a party to say “it is a point of principle” . This can also be translated as “all reason has gone out the window”.
Whilst the usual rule in litigation is that the loser pays the winner’s costs, a judge may not award them all. A successful party can expect to recover the costs reasonably incurred. However, if a judge feels the parties have behaved unreasonably, he may impose cost sanctions. So, even if successful, the litigation is likely to cost the winner something. For the losing party, the legal costs could well be double those initially paid to their own lawyer.
If we can assist with helping people resolve disputes with their neighbours, we are more than happy to try to do so.