As things stand, the only formal mechanism for resolving a boundary dispute is by recourse to the Courts. These proceedings are often complex and emotionally driven which can lead to eye-wateringly high legal costs and, in many cases, an unsatisfactory outcome for all concerned. The Property Boundaries (Resolution of Disputes) Bill (the “Bill”) seeks to change all this.
The Bill was first introduced to Parliament during 2012-2013 session and has been making its way towards Royal Ascent very slowly, having been re-drafted on a number of occasions. The latest draft and was re-introduced in January 2020. However, as a result of the prorogation of Parliament, there has been little progress with it since then and at the time of writing we are waiting for a date to be announced for the second reading.
If the Bill does eventually make it on to the statute books, it would introduce a new dispute resolution framework similar in nature to that contained in the Party Wall Act 1996. The framework would, broadly, be as follows:
Notices
Where a boundary dispute has arisen, but no court or tribunal proceeding have been commenced, and the owner of land (“the Landowner”) wishes to establish:
- the position of a boundary; or
- the location and extent of a right of way
that owner must serve notice on the adjoining owner, with a plan identifying the boundary, or the right of way, they are claiming.
If the neighbour responds objecting to the claimed boundary line / right of way; or does not respond within 14 days, a dispute is deemed to have arisen.
If the Landowner does not serve such a notice and commences litigation, he or she will not be able to recover any costs incurred in connection with those proceedings.
Where court or tribunal proceedings have already been commenced, those proceedings will be suspended, and the dispute will be resolved in accordance with the mechanism set out in the Bill.
Appointment of Surveyors
Where a dispute is deemed to have arisen then the parties shall either:
- agree the appointment of a joint surveyor; or
- instruct their own surveyors, who will then appoint a third surveyor
Determination of the dispute
The agreed surveyor, or the three surveyors, shall settle the dispute by determining:
- the precise location of the boundary or right of way;
- the extent to which any building, structure or other construction encroaches on to the other parties land; and
- make an award as to costs
Where the parties have appointed separate surveyors, either surveyor may call on the third surveyor to determine any disputed matters.
Appeal
Either party may, within 28 days of receipt of the surveyor(s) determination, appeal to the High Court against that determination. The court may rescind or vary the surveyor(s) determination as it thinks fit. If neither party appeals, the determination made by the surveyor(s) will be conclusive and will not then be questioned by the Courts.
The Bill effectively takes the process away from Judges and solicitors and puts decision-making power in the hands of the surveyors. Albeit there is a right to appeal to the High Court. Whilst there clearly an advantage to this kind of dispute resolution framework, boundary disputes are often decided on the construction of legal documents and, therefore, it is unlikely that the process will be exclusively surveyor-lead. Inevitably, there will be legal questions which may require input from solicitors. Therefore, this may call for a joined-up approach, which is not too dissimilar to how things operate at the moment.
For now, the Bill has been shelved. If it does become law, time will tell if the desired effect is achieved.
Our specialist Property Litigation Team are experienced in helping clients understand the options and guiding them through each process. Contact us today to discuss any of the issues raised above.