Boundary Disputes: How effective are the current resolution methods?
As published in Property Law Journal April 2015
Boundary disputes arise on all types of land; from development sites to edges of school playing fields,
from industrial sites to suburban back gardens. The latter location is famously where boundary
disputes are most hard fought, and it is fair to say that these disputes can be less about the land
(which may have negligible financial value) and more about the hostility that can arise between
neighbours.
Clearly, just because the land in question is small, it does not follow that there is a cheap and easy
way to resolve the dispute. A high proportion of boundary disputes involve a complex web of legal
difficulties, inconsistent evidence, and personality clashes and so on. As such, reaching a
compromise can become difficult and litigation disproportionately expensive.
Only this year Lord
Justice Bean described a neighbour dispute (which included inter alia an argument over a boundary)
as “Dick ensian litigation” and added that the case had taken “ten days of Court time – more than
some murder trials, with a further three days at this Court; and about half a million pounds spent in
costs.” Gilk s v Hodgson [2015] EWCA Civ 5.
It was as a result of such concerns that government Ministers last year conducted a “Scoping Study”
into the causes of, and methods currently used to resolve, boundary disputes.
The results were
published in January 2015, and are considered later in this article. Unfortunately responses to the
questionnaire were few in number and arguably insufficient to conclude the matter emphatically.
Legal Process for Establishing the Boundary
The obvious way to resolve a boundary dispute is to apply the law and hope that this produces the
requisite certainty to satisfy the parties as to the precise legal boundary.
The Scoping Study
concluded “we are not persuaded that there is anything significantly wrong with the present general
law relating to boundaries or that there is anything to be gained by unsettling boundaries that already
exist by changing the law in relation to them.” As such, it is worth running through the basic rules.
Lord Hoffman in Alan Wibberley Building Ltd v Insley [1999] UKHL 15 set out the following
principles when it comes to establishing disputed boundary positions:
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The first task is to review the title deeds.
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The parcels clause of a conveyance or transfer may refer to an attached plan, but usually this is
said to be "for the purposes of identification only". The use of such words indicates that the plan
cannot be relied upon as delineating the precise boundaries.
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It follows that, if someone has to establish an exact boundary, a conveyance or transfer will
almost invariably have to be supplemented by inferences drawn from topographical features that
existed (or may be supposed to have existed) at the time that the deed was executed, or from
other evidence.
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There are certain rebuttable presumptions that assist the inferences that may be drawn from
topographical features. One example is the presumption relating to hedges and ditches.
Title Plan
Critically, it is most important to remember that the Land Registry Title Plan, which some disputing
neighbours believe is the holy grail of all plans, is useless. Unless the plan has actually been
“determined” by the Land Registry, and is expressed to be so (which is extremely rare), the general
boundaries rule applies meaning that the Title Plan cannot be used to illustrate the precise boundary
of a plot. The reasoning for this is partly that the scales used on the Title Plans are too large for
accuracy and also the Land Registry’s understandable reluctance to get involved in
neighbour disputes.
Deeds
The starting point is to check the pre-registration title deeds which should generally be the primary
source for establishing the boundary line. This of course flies in the face of the concept of land
registration, which aspires towards there being no need for pre-registration deeds and everything
being discoverable from the register.
Often, these days, deeds have not been kept and there is
simply nothing to check.
There are occasions when the deeds are located, there is a clear definition of the boundary and there
can be no further argument. If the deeds are unambiguous, then extrinsic evidence will not be
admissible.
Often the deeds are ambiguous. In addition to construction arguments, there are frequently problems
with the plans themselves; unmeasured, frequently without definitions of the property’s boundaries,
thick felt tip marks representing metres on the ground, copied several times, fuzzy and out of scale.
Original conveyance plans should be used if at all possible.
Extrinsic Evidence
If the deeds are not located or do not hold the answer, parties should be looking for a variety of
extrinsic evidence.
This may include the location of topographical features and so the best thing for
an adviser is to actually go to look at the land. There is nothing to substitute a proper physical
inspection of the land in a boundary dispute situation.
Other sorts of evidence that can be brought into play include:
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Particulars of sale at an auction or estate agent's particulars.
Replies to pre-contract enquiries.
Statutory declarations.
Maps, including OS maps.
Photographs – historic and new photographs are invaluable where plans are non-existent or so
distorted it is almost impossible to decipher.
Planning permissions.
Decisions from earlier boundary dispute proceedings of neighbouring properties.
Role of Surveyors
A chartered surveyor is often of great assistance in a boundary dispute, and can provide some of the
following functions generally to be the first person on the scene who can actually measure up the land
with sufficient accuracy to enable comparison of the deed plans, maps and photographs so that
evidence of any encroachment can be reliably presented. A surveyor might also:
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Examine the problem objectively regardless of the client’s preferred solution.
Pursue several lines of enquiry including:
o investigating historical documents
o physical features of the land
o available legal documents
Compile technical evidence to prove current and historic ownership.
Give a reasoned opinion.
Display results in plan/map form.
Provide a court with an expert opinion if a dispute is not resolved.
Upon resolving a dispute, prepare an accurate plan for submission to the Land Registry.
Other experts may be useful too, such as an expert in photogrammetry who can compare
aerial photographs to maps, which can show whether the use of land has changed over time
(and boundaries moved).
How do Courts deal with Boundary Disputes?
Judges have become increasingly vociferous about neighbour/boundary disputes. In particular, that
they are time consuming and can be hugely disproportionate from a costs perspective. Whilst there
will theoretically be one “winning” party and one “losing” party, the parties will probably still need to live
next door to each other and both parties may even face some difficulties when the time comes to sell
their property and they have to declare the history of their war scars with their neighbours.
Remedies which parties seek would usually include a declaration as to the location of the boundary
and, in addition, the Claimant may seek an injunction to prevent the other party from
crossing/trespassing the boundary and/or to stop them from carrying out any other actions on the
disputed boundary location. An alternative route is for a party to claim possession for that land which
it says is beyond the neighbour’s property boundary.
Injunctions are considered to be a heavy remedy and Courts are showing signs of becoming more
reluctant to award them. In Rashid v Sharif [2014] EWCA Civ 377, the Defendant had committed a
trespass by demolishing a party wall which was also considered to be the boundary between their
respective properties. The trespass was considered to be too minor to warrant injunctive relief.
If appropriate, the Court may award damages in place of an injunction.
Not only will the parties’ evidence be weighed up by the Court at trial, but the parties’ conduct and
intentions will be taken into account when considering the remedies and costs awards.
In the case previously mentioned of Gilks v Hodgson [2015] EWCA Civ 5, Lord Justice Christopher
Clarke considered that time and costs incurred in the case were “to an extent grossly disproportionate
to what was at stak e and that the example of this litigation may encourage others who are concerned
in lik e disputes (and, as importantly, those who advise them) to tak e every steps that they can to avoid
the absurd waste of effort, time and cost (for both parties) which this case has involved.”
What methods are available to avoid litigation?
The Court expects parties to have made every effort to engage in some form of Alternative Dispute
Resolution method, which can include anything from informal on-site or round table meetings to
participating in a more formal process of mediation.
The Government Scoping Study considered
types of ADR methods as well as how these could be improved to achieve quicker and definitive
outcomes for boundary disputes at a reasonable cost. Some respondents were of the view that
guidance about the various alternative resolution services should be made available to parties before
they embark upon long and expensive litigation – for example, the option of utilising the RICS
Boundary Disputes Resolution Service.
Mediation
There is precedent now for parties who refuse mediation without reasonable grounds for doing so to
be made the subject of punitive costs awards. For this reason alone, advisers must press parties to
attempt mediation.
Respondents to the Scoping Study concluded that encouraging mediation was
the overall preferred way of improving parties’ chances of settling.
Further, mediation is far more suitable than Court litigation for disputes of this nature. Mediation is
flexible, voluntary and confidential. There are often compromises that can be made over land that are
not within the jurisdiction of the Court to order, such as land swaps or the grant of a lease or licence
over a disputed strip. A good mediator can explore all such possibilities.
The respondents offered a variety of comments about the success of mediation but a definite
statistic was that the Land Registration Division was noted to have been operating a judicial
mediation scheme and in the September 2012 to 2013, out of 32 cases referred, 14 settled at the
mediation, 7 reached agreement in principle and 11 were unsuccessful. The Study also makes
reference to the intention of the Ministry of Justice to carry out a small study into the options for
extending the use of mediation in the Land Registration Division, the results of which could be
pertinent.
The Scoping Study found that the cost of mediation was considered to be much more reasonable than
litigation, which is probably not hard to believe, particularly since the Jackson reforms on costs and
very recently, the increase in Court fees – both of which front load and increase litigation spend.
One difficulty that parties face is approaching mediation in a positive way. Boundary disputes tend to
be emotionally charged so neither party hold much confidence in the opposition to reach a realistic
compromise, which then leads to some resistance to enter into mediation. If a compromise is reached
at mediation, then almost all parties, understandably, will require a binding boundary agreement (see
below) or Court Order to record the agreement, which can still mean some time and cost has to be
spent.
Independent Expert Determination
Parties can agree to resolve the matter by independent expert determination, i.e., agreeing the
identity of a third party whose decision will be binding.
Respondents from the Scoping Study were of
the opinion that this method was being used less probably because of the difficulty of getting both
parties to agree to the process and to be bound by the decision. This may also be because some
parties also prefer to have more involvement in their case, and want their “day in court” and to hear
their opposition under cross-examination.
Scoping Study - Suggested Changes
A number of proposals for change were discussed in the Scoping Study.
Party Wall etc Act 1996 Model
This proposal was considered in some detail in the Scoping Study, having its roots in the Private
Member’s Bill tabled by Charlie Elphicke MP. The foundations of the model are based upon an
established system under the Party Wall etc Act 1996.
It would involve a compulsory dispute
resolution procedure for every boundary dispute whereby each party to the dispute would instruct a
surveyor (or, if they agree to do so, to appoint a joint surveyor). The two appointed surveyors would
then reach an agreement on the location of the boundary. In the event that the two original surveyors
could not agree, a third independent surveyor would be appointed to determine the matter. The final
decision of the third surveyor would be subject to appeal at the County Court.
It was the opinion of the respondents from the Scoping Study who were in favour of this proposed
method that boundary disputes are best suited to surveyors to resolve as surveyors will be able to
apply both the basics of land law alongside their technical expertise to determine the location of the
boundary. It would also avoid the adversarial nature of litigation and, if used at the outset of a
boundary dispute, could lead to disputes being resolved far more quickly and cheaply and certainly
before parties become fixed into entrenched positions.
Whilst it may have some advantages, the disadvantage in adopting this method is that the legal
determination of the location of a boundary is generally reserved to a judge. Surveyors are not legally
trained nor qualified to give conclusive and binding legal judgments and are unlikely to hold enough
legal expertise to handle complex land disputes such as adverse possession. The Scoping Study
concluded “we do not think the case has been made for such a radical departure”.
There was also concern voiced that some form of appeals process would need to be put in
place and that the process could result in an influx of appeals to the Court such that costs
would then escalate, defeating the underlying aim of this approach.
Procedural Adjustments
Respondents from the Scoping Study suggested a number of procedural adjustments to proceedings
in either the County Court or Land Registration jurisdiction in order to reduce the time and cost of
those proceedings. These included:
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Early site visits by judges hearing the case (this was a proposal made by members of the
judiciary).
Putting in place more robust case management systems to expedite cases of this nature with new
provisions for cost management.
Orders from the Court compelling parties to obtain single joint valuations to the land in dispute
and then capping the parties costs to the value of the disputed land.
More County Court cases being transferred to the Property Chamber – First Tier Tribunal.
Giving the Land Registry more powers to determine the location and ownership of boundaries.
Giving local authorities powers to step in to resolve land disputes.
Creating an Ombudsman to resolve boundary disputes.
Revising the law relating to boundaries to make it clearer.
Removing the law of adverse possession entirely.
Establishing a new law that disputed land is owned by the State pending determination.
Some of these proposals are really quite far removed from established principles, with very wide
implications, and the conclusion of the study was that there was no case for making recommendations
for any substantive reform of the law or dispute resolution procedure.
Land Registry Involvement and Settlement of Boundary Disputes
An issue which arises at mediations on boundary disputes is how to document what is settled. The
Scoping Study seemed to conclude that it has further work to do with the Land Registry about the
information available on boundaries and its role in resolving disputes. The concept of the boundary
agreement was referred to, and is the most obvious way, outside Court Order or application for
boundary determination, to document where the boundary is.
The Land Registry updated their Practice Guide on boundary agreements and this updated Guide was
published on 12 November 2014 (Practice Guide 40). There is now more guidance on what a
boundary agreement is, how it works in practice and how one is recorded on the title register.
Essentially, a boundary agreement involves parties recording in a document the agreed location of a
boundary, or the maintenance of a boundary feature. It is to be presumed that when parties informally
agree a boundary, they are merely intending to demarcate a boundary and that the primary purpose of
that agreement is to identify a boundary, not to convey land. This is a rebuttable presumption.
A boundary agreement which does not involve a clear transfer of land or words within it that have a
“disposing purpose,” would fall outside of the section 2 of the Law of Property (Miscellaneous
Provisions) Act 1989. This means that this form of boundary agreement does not need to be in writing
in order for it to be enforceable. Clearly, it is plainly preferably for boundary agreements to be in
writing. The Land Registry registrar is unlikely to approve an application to alter the register unless a
party produces a copy of a signed boundary agreement.
In the case of Joyce v Rigolli [2004] EWCA Civ 79, the court found an informal boundary agreement
to be legally enforceable although that party seeking to rely upon the informal agreement had
overcome the evidential hurdle of proving what the terms of the agreement were.
When negotiating boundary agreements for clients, one of the key points is to ensure that
the agreement is not merely a contract between the current land owners but that there is a
way for it to bind the land. The boundary agreement, with an agreed plan, should always be
registered against the title register but note the Land Registry Practice Guide says “The registrar is
not in any way guaranteeing that the legal boundary is where the parties have identified it as being in
the boundary agreement.”
In addition to the registration, a belt and braces approach that can be taken is to register a restriction
on each of the registered titles which requires any purchaser of the land to enter into a deed of
covenant under which he agrees to comply with the terms of the boundary agreement.
The future of boundary disputes?
The Scoping Study acknowledged that while it identified problems and possible solutions, it had not
been able to find an elixir to fix the situation and that neither the number of boundary disputes, nor the
cost of fighting them, was likely to decrease. Rather unsatisfyingly, it concluded that the “piecemeal
improvement of the current system without impinging on its flexibility ” is likely to be a better approach
to making boundary disputes easier and less expens ive to resolve than adopting an untried and
radical solution.
What is important to point out is that this Scoping Study was based upon just 10 responses (only one
of which was from a solicitor) despite a distribution of questionnaires to 30 organisations. Even if all
30 organisations had responded, this represents a tiny sample. Would the responses have been
different if these questionnaires were distributed to the Property Litigation Associat ion and the
property litigation solicitors and land surveyors who deal with these types of disputes on a daily basis?
Overall, the responses to the Scoping Study are interesting but there is clearly not going to be any
imminent change. Advisers simply need to be alert to the issues, and do their best to resolve clients’
disputes without litigation wherever possible.
For further information contact helena.davies@dwf.co.uk and pauline.lam@dwf.co.uk