Boundary disputes are notoriously emotive disputes. As soon as two parties become embroiled in a dispute over the position of a boundary or the existence of a right of way, legal proceedings seem inevitable. However, if enacted, The Earl of Lytton’s Private Members’ Bill could render court involvement a thing of the past.
The Property Boundaries (Resolution of Disputes) Bill started its journey in the House of Lords in 2015 and survived a second reading in December 2016, before being halted in its tracks by the general election. Now reintroduced to the House of Lords with a ‘second bite at the cherry’, it intends for boundary and rights of way disputes to be taken out of the established adversarial court procedure and for parties to have to use a compulsory method of resolution by surveyors.
By making expert determination mandatory, the Bill aims to reduce parties respective costs and speed up the process for resolving boundary and rights of way disputes by offering ‘a consistent procedural template for resolving a dispute’. The Bill also seeks to make savings in court time, by removing the majority of disputes from the court process altogether, while remaining under the courts’ ultimate jurisdiction.
However, this Bill has already been the subject of scrutiny, not least because The Earl of Lytton is himself a surveyor and a Fellow of the Royal Institute of Chartered Surveyors. Whether surveyors have the professional expertise to deal with all the various factual and legal issues that arise in boundary disputes or rights of way issues certainly is a point of contention – are these complex disputes within the remit of surveyors? Parties are also expected in the first instance to appoint a jointly instructed surveyor. However, given the very nature of these disputes, when parties cannot agree to jointly appointment one surveyor, then they might find themselves paying for three. Whether this will result in just as much expense as the current procedure remains to be seen.
Whilst the Ministry of Justice’s make provision that “mediation seems to be quite successful where it is used and may be capable of wider use“, the Bill still doesn’t permit any other forms of Alternative Dispute Resolution. Whether these issues can be resolved is a question for the future, but one thing we can be certain of is that as the Bill progresses through the remaining House of Lords stages and then the House of Commons, its chances of enactment snowball in equal measure.
Mike Davies is a Partner in our Disputes team. If you would like to discuss the above article in more detail or any other dispute enquiry, please contact the team on 01392 210700 or email firstname.lastname@example.org