Conveyancing – Boundaries and Boundary Disputes
Ministry of Justice Study - why 'boundary' disputes?
Of all the differing civil disputes which arise in a year, you may wonder why the Ministry of Justice singled out those relating to boundaries for a recent study. Whereas these disputes vary, they are commonly bitter and protracted with the costs and court time involved disproportionate to the subject matter, namely small amounts of land. It follows pressure from Charlie Elphicke MP who introduced a Private Members bill in 2012 with a view to a surveyor-based solution.
What is a boundary ?
A boundary is the legal line which divides the ownership of one piece of land from another. It may or may not be marked by a feature, such as a hedge or a fence. Determining who may own that boundary feature can be problematic and require more detective work than law. For example, in law there is a rule which presumes a boundary runs down the centre of a hedge. Enquiry may reveal that one of the property owners in fact planted this hedge on their side of the boundary and it belongs to them.
What is in the 'deeds' ?
The subject of boundaries is one which arises regularly in conveyancing. Property owners, or prospective owners expect that their 'deeds' will tell them who owns and is responsible for the 'boundaries'. Not an unreasonable expectation given their importance both legally and practically.
Most property titles are now registered and as a result there are no 'deeds'. Titles are held electronically at Land Registry. Via a new Land Registry facility, we can tell you very quickly whether any land in question is registered or not.
In modern conveyancing when the property is first sold, the deed between the developer and the buyer will contain a scale plan showing the property, and will contain declarations as to who is responsible for the boundaries. Older titles, more often than not, will not contain any boundary information. Plans where provided may be small and usually only for identification. Even where the title does contain information this cannot necessarily be relied on as the position may have changed over time. This is partly due to the fact that most obligations for boundaries are 'positive' obligations. They are therefore subject to a legal rule which means that the obligation only applies to the person who enters into it, and it does not bind successors in title.
What about the Land Registry title plan?
It might be reasonable to expect to be able to rely on the Land Registry title plan, however these are only to a small scale, and boundaries shown are (save for rare exceptions) 'general boundaries' which are not meant to be definitive. That is until you try and argue with Land Registry that a boundary line is incorrect of course.
So why do boundary disputes arise?
It is perhaps not surprising, given the inherent difficulties which may be involved in determining legal boundaries and the issues relating to plans, that these may lead to confusion and misunderstanding between owners. Add to this that the subject matter is a man's 'castle' and a man's instinctive territorial nature, and you have a unique combination that, when it combusts, may be difficult to extinguish.
In addition the study considered that boundary disputes may often have their roots in other disagreements and antipathy between neighbours, and arise out of 'jealousy and greed, or be used as a weapon between neighbours…."
How are these disputes dealt with?
The study narrowed its focus on disputes that only involved the single issue of determining the position of the boundary line, and excluded those that involved other issues such as rights of way and light. They found that there are some 1000 such disputes a year. Of these only a small percentage actually go to court and only a smaller percentage again make it to a full trial.
The options are the same as for any disputes. Parties may settle having taken legal advice, or simply give up due to the costs that may be involved. There are also mediation approaches, and these have relatively high success rates, but require both parties to 'buy' into the process, otherwise can just add to the costs. Certainly the costs involved will prohibit escalation in the majority of cases. Costs bills of £10,000 to £50,000 are reported with the figure being higher in the most bitterly disputed case.
Recent changes in the civil justice system may impact in the future, as a new rule on proportionality means that costs which are disproportionate will not be recoverable, even if reasonably or necessarily incurred. This however may favour those who can afford to pay such as developers.
Why are boundary disputes so difficult to resolve
The factors which make these type of disputes unique make them also more difficult to settle. These include the difficulties in determining the boundaries and inadequate mapping.. Also human nature such as "… intransigence, aggressively territorial behaviour and unwillingness to compromise… together with the potential for dishonest manipulative behaviour aimed at securing an advantage….". In addition an almost unique feature is the shortage of issues available to negotiate. Inevitably there has to be a winner and loser. These factors make resolution by mediation and negotiation much less likely to succeed, and mean parties proceed to Court seeking the conclusiveness and authority of a court decision.
Having analysed the problem and suggested solutions the study in effect concluded that there was no easy fix. A persuasive case had been made based on a developed form of the Elphicke proposal, and following the model in Party Walls Act legislation. This system would appoint surveyors on either side, and a 3rd to act as arbitrator if necessary. The downside however is that the disputes can affect a persons legal rights and can involve complex legal issues which are out side of a surveyors remit. In addition the Party Walls Act model benefits from the fact that there is a mutual need between owners for work to be done efficiently. Whereas in a boundary dispute there is no mutuality, it is purely adversarial producing a winner and loser, victor and vanquished.
The MOJ concluded that 'piecemeal improvement of the current system without impinging on its flexibility…' was a better approach for the future than .. 'adopting an untried and radical solution'. They have proposed to take various further steps now with a view to arriving at more definite conclusions in the course of the year. These include further discussion with Land Registry, exploring the scope for improving court and tribunal procedures. for example including early site visits and more robust case management, encouraging mediation and the use of independent experts, and providing better information.