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As a Property Litigator, possibly the most common enquiry received relates to boundary disputes. We all know that an Englishman’s home is his castle but there are very few things in life which seem to raise the emotions like a boundary dispute. This has been well known to lawyers and Judges for a long time. Indeed, it is often the case that a Judge’s heart will sink upon looking at their upcoming work to see yet more boundary disputes before them.

They can often revolve around small areas of land where the costs involved in litigating are massively disproportionate to what is in dispute. We have all read tabloid articles which refer to the losing party in such a dispute being lumbered with a legal costs bill well in excess of £100,000 and often leading to financial and personal ruin.

However, change may be ahead…

Possible new law and new procedure?

By virtue of a Private Members’ Bill – The Property Boundaries (Resolution of Disputes) Bill – it is possible in the future that the situation will be changed. Parliamentary time is being spent elsewhere presently but it is likely that this thorny issue will be dealt with significantly differently in the future.
This Bill aims to introduce a system that treats boundary disputes more like the way Party Wall Act disputes are dealt with, using Surveyors much more in the process and hopefully taking an already overburdened Court system. The hope is also that this will reduce the costs involved as well as expedite the process. More information can be seen here.

What to do in the meantime

Pending any new laws, there has been some other useful help in recent times introduced in the form of the protocol (together with guidance notes) released by the Property Protocols Website. This has been prepared by eminent legal and surveyor experts in this area. The protocol (perhaps belatedly for many) follows in the footsteps of established protocols which lawyers regularly use relating to other disputes. Like those, the Boundary Disputes protocol aims to encourage the parties involved to follow a process before heading off to Court, the process being designed to maximise the chances of settlement and resolution. It can be accessed here. 

Top tips for dealing with a boundary dispute

The protocol contains a lot of common-sense. The following “top tips” can be gleaned by anyone faced with a boundary dispute and wondering what they can do to try and resolve a matter or possibly even ensure that they are prepared for the worst, should it come to that:

1. Communication – in any dispute, this is arguably the most important thing to grasp. Although boundary disputes are often emotive and usually involve a falling out with someone with whom you live or work in close proximity, if possible it is best to try and put aside the emotion of the situation and ensure that lines of communication remain open with neighbours.

2. Openness – it is always best to be open with your neighbour. If you have documentation which helps clarify your point of view and arguments, it should be disclosed at an early stage. This really should be a reciprocal arrangement, ensuring the parties have a “cards on the table” approach. Playing a tactical game of withholding information will only create mistrust and likely ensure that the matter can only be resolved by going to Court. Further, you can expect the Judge to be significantly aggravated by such tactics, often leading to penalties in costs even if you end up being successful.

3. Narrowing of issues – trying to ensure that the issues are narrowed down to what is genuinely in dispute can only help focus the mind and minimise the dispute. It sould also help minimise the costs incurred. Having agreed photographs of the boundary from different locations on both sides of the boundary can help. If one is necessary, trying to agree a single expert at an early stage may also be helpful.

4. Raising legal arguments early – often a neighbour may advance a position which is at odds with the deeds. This may be a perfectly reasonable approach e.g. on the basis that they have acquired title to the land over the passage of time. However, these arguments should be raised early to ensure that the opposing party or parties know exactly what arguments they face.

5. Make offers and put forward solutions – it is possible to write on a without prejudice basis and put forward proposals that you would be prepared to accept even if that represents a concession on your part without prejudicing your claim if it is not agreed. Putting forward options of settlement may bring the matter to a resolution quickly or otherwise give your opponent an indication of the areas where you are prepared to negotiate which can then lead them to make their own offer.

6. Assisted Dispute Resolution – it is possible to involve a third party who is independent to those involved in a dispute to try to bring the parties closer together or to a resolution. The use of Mediators, experts to determine the matter and the like should all be considered.

Although the protocol does not presently form one of the protocols included in the Civil Procedure Rules which govern litigation in England and Wales, following these top tips and the terms of the Protocol means that, if you cannot resolve matters with your neighbour(s) yourself, you should be in a good place for your legal or other professional advisor to progress the matter. If in doubt, it is always best to seek specialist advice.