Lawyers are often consulted by individuals who are very upset that they have become involved in the dispute with their neighbour. Some lawyers dislike acting in boundary dispute cases and give them a wide berth, while other lawyers enjoy picking through the pieces of a dispute, analysing plans and trying to solve what is usually a complex puzzle. I am pleased to confirm that I fall into the latter group and have dealt with many boundary disputes over my career.
It is fair to say that boundary disputes are often complex, and it is always true to say that they are uncertain as to their final outcome.
When confronted with an issue concerning a boundary there are initially three steps that need to be thought through. These are: -
- Establish the boundary from the conveyancing documentation and title deeds. This may involve getting any old conveyancing files from solicitors that acted on the original purchase or sale.
- Look at the extrinsic evidence on the ground. This could include a site investigation, photographic evidence, Ordnance Survey plans and if required surveyor’s expert evidence.
- It is then necessary to consider whether the boundary has been amended by the parties and/or previous owners. The amendment could be caused by an informal agreement, the parties’ conduct or a claim for adverse possession where by one party has merely treated the land as their own for a significant period of time.
In a case heard in 2011 (Acco Properties Limited v Severn), the Judge Simon Baker QC created a very useful summary of principles that can be applied in dealing with boundary disputes.
The principles are: -
- Registered title plans usually show general boundaries rather than exact boundary line.
- Ordnance Survey (OS) plans are usually only a general guide to boundary features and should not be scaled up to delineate an exact boundary.
- The starting point in a dispute is the wording of the conveyance and the conveyance plan, or if the plan is stated to be definitive, guided by the plan.
- If the conveyance is not clear then extrinsic evidence may be considered, for example, features which existed at the date of the conveyance.
- Evidence of the parties’ subsequent conduct may be relevant and admissible if it reveals what the parties intended.
- Evidence of features after the date of the conveyance may be relevant.
- The boundary needs to be clear rather than “fuzzy at the edges”.
- Even if the boundary is clear from the conveyance, other evidence may show a different boundary as a result of adverse possession. As the phrase implies, title is established by intentionally taking exclusive possession of land without the consent of, and adverse to the interests of, the true owner and maintaining such possession continuously for the limitation period.
- An informal boundary agreement need not be in writing as it demarcates an unclear boundary rather than operating to transfer an interest of land.
- Boundary agreements are usually oral but can be inferred or implied.
- The Court should have regard to what a reasonable layman would think that he was buying.
- The Judge also commented that every case turns on its own facts and the task of the Court is to assess all available and admissible material in arriving at its answer and then to achieve the correct answer.
Quite often when clients present themselves with a dispute over a property, one of our first duties is to advise them of the costs that may be incurred. Boundary dispute litigation can be expensive. In the Acco case the Judge commented “A party can litigate over a tiny strip of land although I would certainly agree that it is usually economic madness to do so, but a person remains entitled in law to protect and preserve that which is his or hers”.
At Brethertons, we will always carry out client’s instructions to the best of our ability. However, we will advise clients that they should consider alternative dispute resolution and mediation at some time during the dispute.
If I can assist with helping people resolve boundary disputes with their neighbours, I am more than happy to try to do so. Please contact me on: -
Tel: 01295 661414
Mobile: 07800 872936
Sioban Calcott is a Partner at Brethertons and works exclusively in the Dispute Resolution Team. Sioban is a Fellow of the Chartered Institute of Legal Executives, a Member of the Property Law Association and was awarded the coveted title of Legal Executive of the Year at the Law Society Excellence Awards.