The CLA guide to avoiding boundary disputes

Neighbour disputes fortunately occur relatively infrequently, but when they do arise, they can cause great unpleasantness and long-lasting ill-will. Sometimes they can be sparked off by a clash of personalities and an unwillingness on either party to compromise. Often they will relate to one party unilaterally making changes to boundary features or private rights of way.

As Lord Justice Ward succinctly said in one such case that found its way to the Court of Appeal: “This is a boundary dispute. To hear those words ‘a boundary dispute’, is to fill a judge even of the most stalwart and amiable disposition with deep foreboding since disputes between neighbours tend always to compel, as this one did, some unreasonable and extravagant display of unneighbourly behaviour which profits no one but the lawyers.”

So, how can neighbours try to prevent such a predicament? There are several possibilities, which we shall explore in turn. Firstly, always consult with any neighbour who could be affected by any proposal for diversification and before submitting an application for planning permission. Neighbours can often feel offended by being left in the dark or not being asked for their opinion on a planning proposal. Sometimes they may have valid reasons for objecting to some aspect of a scheme, and by working with them the scheme can be modified to address their concerns and thereby an objection to the planning application could be prevented.

Always consult with neighbours where any proposals are being made to alter physical features on legal boundaries or private access tracks. This is advisable even if it is only intended to renew an existing structure such as a fence or give more than a usual prune to a hedge. Besides being courteous, the neighbour may have a different impression as to the ownership of the structure which can be resolved before the works are carried out.

Carry out some research into the ownership of the boundary feature by looking at the title deeds, replies given to enquiries by a previous seller of the land and any pre-registration title records. Old aerial photographs can also sometimes be the source of useful information. However, be circumspect as to the accuracy of any title plans. Frequently a plan may have been prepared depicting a plot that was being sold-off before a fence was erected or a hedge planted on the ground. Subsequently the seller and the purchaser agree on the line of the new fence or hedge but without reference to the title plan. Over time, it is highly likely that the fence/hedge will be regarded as the true legal boundary rather than the line shown on the title plan. It is, after all, where the parties intended the legal boundary to run. Equally, dimensions found in old conveyances rarely contain enough information to allow a mathematical check of their correctness. It sometimes comes as a surprise to property owners to discover that the Land Registry do not guarantee the accuracy of legal boundaries but instead operate under a ‘general boundaries’ principle. Section 60 Land Registration Act 2002 provides:

“60(1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section.

60(2) A general boundary does not determine the exact line of the boundary.”

What this means in practice is that if there is a situation where there is a fence (perhaps erected for livestock management purposes) a hedge, then possibly a ditch and then another fence separating two landholdings, the Land Registry (in the absence of any narrative in the property registers of the titles) will not express any opinion as to which of these features constitutes the exact line of the legal boundary between the two holdings. Their maps, particularly in a rural context, are simply to an insufficient scale to be able to determine the matter. There is a useful guide produced by the Land Registry (Public Guide 40s3) discussing this issue which can be downloaded at HM Land Registry plans: boundaries (PG40s3).

Try to nip any dispute in the bud and resolve it before it develops out of all proportion to its importance. Don’t allow things to fester. Initially try to arrange a face to face meeting to discuss the matter generally before rushing off to lawyers. Try to understand your neighbour’s point of view and give them an opportunity to explain it.

In the case of boundary disputes, frequently landowners will say “the land in question has no significant value at all but it is the principle that is important.” That may well be true, but landowners need to bear in mind principles come at a price and where litigation is involved they have to be paid for. And, frequently, that cost will be well in excess of the value of the land or right of way in question. There are times when a ‘hard and fast’ stance may be the appropriate response but it will invariably be quicker, cheaper and far less bother to negotiate a solution and move on.

In another Court of Appeal ruling Lord Justice Mummery complained: “The whole exercise has been an uncomfortable experience of unsatisfactory aspects of the conduct and cost of neighbour disputes in the courts. Everybody agrees that, if at all possible, disagreements between neighbours about rights of way, boundaries or whatever should be settled without ever going near a court. In my view, professional advisers have a duty to warn their clients at an early stage about the downside of neighbour litigation, even for a successful party. If the case goes to court there is, as this case shows, some uncertainty about the ultimate outcome. The case does not always end with the trial.

Appeals are possible. What is certain is that, at the end of the day, one of the parties will lose and will usually finish up with an order to pay very considerable legal costs. This is not good for the losing party or for the prospect of harmonious relations between neighbours who continue to live next door to each other after the case is over. The cost and stress of a court case will often result in the further deterioration of already damaged relationships. The parties might be horrified to discover that the litigation has blighted their properties, as well as their lives…When a neighbour dispute gets to court, there is a risk of it looking relatively unimportant to everyone except the parties. Many other kinds of dispute seem to have a larger claim on limited and overburdened court resources. Sometimes neighbour disputes are trivial. Even then they are potentially ruinous, in financial and human terms, for both sides.”

Consider an alternative to legal proceedings such as mediation. Mediation is a voluntary, confidential process where people involved in a dispute are helped by a neutral third party (the mediator) to resolve their problems collaboratively. The mediator never takes sides or imposes a solution, but rather helps the participants reach a solution that they are happy with. This is then drawn up into a legal agreement. Mediation can improve communication and is a proven cost effective way to resolve disputes. It can be particularly effective in a boundary dispute situation when there is uncertainty whether litigation is going to be successful and where a ‘win all - lose all’ outcome may not be the most appropriate. There is far greater opportunity for the parties to compromise and reach a more creative solution (for instance the parties could agree that a disputed strip of land could be sold to one of them or exchanged for a right of way on agreed terms. Or that one party can have a lease on the disputed land for so long as they continue to own their adjoining property.)

This type of settlement is beyond the scope available to a judge. Lastly, as mediation is a collaborative process and the parties themselves need to agree to the outcome, it is less bruising to continuing neighbouring relations than a judgement imposed upon the parties by a judge. The success rate for mediation speaks for itself - in the region of 80% of cases that are mediated settle on the day or very shortly afterwards.

Lord Justice Mummery endorsed the use of mediation in another neighbour dispute case in Bradford v James [2008]. He said: “There are too many calamitous neighbour disputes in the courts. Greater use should be made of the services of local mediators, who have specialist legal and surveying skills and are experienced in alternative dispute resolution. An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive. By the time neighbours get to court it is often too late for court-based ADR and mediation schemes to have much impact. 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 day’s mediation may set the parties back in the region of £2,000 each, but compared to the costs of running a dispute to trial (where costs of £250,000 are not unheard of) it is likely to be money well spent.