Boundary Disputes

Boundary Disputes

No two words send shivers down the spine of any lawyer quite like “Boundary Disputes”. Why? Because it dregs up memories of cases of neighbours fighting over land that has been stripped of its value by expensive litigation, often leading to a conclusion which favours neither party. It is an area of law replete with cautionary tales and pyrrhic victories.

Yet, land is important and there are many instances when it is entirely appropriate to defend borders and repel intrusions. As Sir Edward Coke once famously stated: “for a man’s house is his castle, and each man’s home is his safest refuge”. This is taken from a case in 1604 in which the Court was asked to determine the right of the Sheriff of London to break and enter property when carrying out the King’s business. Matters have moved on since then, and the law has evolved somewhat. Even so, the sentiment espoused by Coke is reflective of the importance and sanctity that we associate with property boundaries to this day.

The boundary disputes solicitors at Morr & Co know first-hand that even the slightest of encroachments on your land can scupper a valuable development or cause devastating damage to your property. We also appreciate that there is something quite emotive about an intrusion that is visited upon your home. This is particularly important nowadays with so many of us working from and socialising at home.

We have extensive experience with boundary disputes and can advise you on how to avoid them or, when that is not possible, how far you should go to preserve your boundaries.

Dispelling myths about boundary disputes

What makes boundary disputes so difficult? First we should dispel some of the myths…

First, a legal boundary is not the same as a physical boundary. Rather, it is an invisible line separating two or more pieces of land. Hedges, fences, and walls are very often erected along the legal boundary and are therefore often a good indicator of where the boundary is. And it is usually these features which are the subject matter of the dispute. But these themselves do not constitute the legal boundary.

Another common misconception is that Land Registry plans are determinative of the boundary line. These plans are based on ordnance survey maps and are deemed to show only what are described as “general boundaries”.

The legal boundary of a property is defined by reference to the “First Conveyance”. This is the document which was used when the property was first transferred out of a larger piece of land. Determining the legal boundaries involves an interpretation of that document, including any plans forming part of it. This is not always straight forward. For one thing, the First Conveyance can be very old. This means that it can be full of archaic language and imprecise wording. Often the plan attached is insufficient for present day purposes. In some cases, the First Conveyance might even have been lost. The topography of the land changes over time as do “boundary” features, such as hedgerows and fencing.

The construction of the First Conveyance can be a tricky exercise. This is why it is important to seek expert advice at an early stage.

Adverse Possession

If matters were not complicated enough, no boundary dispute would be complete with a claim for Adverse Possession to accompany it. Adverse Possession occurs where there has been a trespass over a long period of time without any objection from the landowner, with result that the trespasser is able to displace that owner and claim the land for itself.  Adverse Possession comes up in boundary disputes because an encroachment across a boundary results in a trespass and, often that trespass has been going on for a long time, undetected.

The Party Wall Act 1996

Boundary disputes often involve “party walls” or “party structures” and therefore come within the ambit of the Party Wall Act 1996.

The Party Wall Act provides a framework for resolving disputes between neighbours over building works that involve:

• Building or demolishing a party wall or structure
• Carrying out repairs to a party structure
• Excavating a site up to six metres from neighbouring buildings.

Often this mechanism will be appropriate as a means of resolving boundary disputes. For more information on this, see our pages on Party Wall disputes .

Noise and Nuisance

Not all encroachments across boundaries exist in physical form. The transmission of noise smells and other disturbances from neighbouring properties are the source of many disputes between neighbours.

The Future of Boundary Disputes

The difficulties involved in boundary disputes are not unknown to the lawmakers in this country and change is on the horizon. In particular, there is a Bill before Parliament which seeks to revolutionise the law in this area. The Property Boundaries (Resolution of Disputes) Bill seeks to introduce a new dispute resolution mechanism whereby surveyors are statutorily empowered to determine disputes.

For more information on this subject, please read our article on this topic here.

Parties should also consider resolving disputes in accordance with the Boundary Disputes Protocol, a non-binding protocol developed by leading practitioners to encourage early resolution of boundary disputes. Details of the protocol can be found here.