Get Off My Land
Boundary disputes rarely lead to good neighbourly relations. Even cases that are judicially decided can lead to unsatisfactory outcomes for both parties. Caselaw has provided us with examples of judges disagreeing with both parties’ suggested boundary locations and imposing a totally different location, of awarding only nominal damages and imposing large costs orders. In the wise words of Lord Justice Mummery in 2010, “the unfortunate consequences of a case like this are that, in the absence of any compromise, someone wins, someone loses, it always costs a lot of money and usually generates a lot of ill-feeling that does not end with the litigation. None of those things are good for neighbours”.
So if your neighbour starts to build a wall on ‘your land’ or remove a hedge from it, what can you do?
The first step is not to lean over the wall/hedge/fence and shout ‘See you in court’. There is a Boundary Disputes Protocol that can be used to try and mediate and head off a full-scale dispute. While not legally binding, it provides a sensible framework for trying to reach an agreement over timing, proof of title, appointing expert advisers and ultimately resolving issues. This kind of mediation is also looked upon favourably by courts should no mediated agreement be reached, and the dispute ends up in court.
Problems often arise as the plans that appear to show fixed boundaries that are contained in conveyances and transfers, even recent ones, can be unhelpful, lacking scale and not being professionally drawn up. It is not unusual even nowadays to see a transfer plan with a thick red boundary marked on it, which when scaled up, could cover a strip of land several metres wide. It is often assumed, incorrectly in most cases, that the land registry plans attached to official copies of title to land can be relied on to prove precise legal boundaries. There is a process to determine and fix a boundary and show that fixed boundary on a land registry plan, but this is rarely used. Consequently, title plans show just general boundaries. This is unsurprising really given that the Registry is relying on plans in conveyances and transfers that may contain errors or be misleading. Another point of contention is the “T mark” which sometimes appear on plans. While these are often assumed to indicate boundary ownership, they can equally relate to other obligations, such as a duty to repair a boundary structure.
A court will look at the plan contained in the earliest conveyance that imposed the disputed boundary, consider issues of ambiguity in that plan, and decide whether it is appropriate to admit extrinsic evidence to come to a decision. Extrinsic evidence could be fences, walls, streams or other useful physical identifiers which do not appear on the plan but which were in existence at the date of the earliest conveyance. If this evidence is permitted (and it won’t be if the court’s view is that the plan is unambiguous), it can be used to work out what a reasonable person with the relevant factual knowledge of the situation on the ground on the date of the earliest conveyance would have believed to be the property boundary. Not such an easy task where the earliest conveyance imposed the disputed boundary in the 19th century, and this is without having to consider whether an encroaching neighbour has illegally encroached but become entitled to the encroachment by adverse possession.
Posted on 4 March, 2020 by Ortolan