What everyone wants in this life is certainty. They seek their solicitor’s advice about a multitude of things but what is often the most intractable problem to solve is a dispute over the position, ownership or responsibility for maintenance of a boundary. These can be acrimonious and frustrating to be part of and a nightmare for the lawyer to try and resolve. At worst murders have been committed over the garden fence; at best settlement has been achieved by negotiation or court order. What experience shows is that relationships between neighbours are never rebuilt.
Last month a boundary dispute was concluded in court after eight years’ litigation and the costs awarded to the successful party resulted in the loser having to sell their house to meet the bill! Better to move in the first place, one wonders?
With a view to bringing clarity and process to the whole field of neighbour disputes a private member’s bill is currently before Parliament. The Property Boundaries (Resolution of Disputes) Bill had its first reading in the House of Lords last July and is due for a second reading some time soon. With a view to providing a road map for settling boundary disputes speedily, fairly and without the need for recourse to the courts, it is proposed that a form of mediation takes place and that if a party fails to join the process and the dispute ends up in court the defaulting party would be likely to be penalised in costs.
What is proposed is that someone who has concerns about the position of a boundary must serve a notice with a plan attached on the neighbour identifying what they consider the exact line of the boundary to be. The neighbour would then have 14 days from receipt of the notice to agree the boundary. If the neighbour objects to the proposed boundary or fails to respond then a boundary dispute is deemed to have arisen. In such a situation the Bill proposes that the line of the boundary should be settled by a single surveyor agreed between the parties. If they cannot agree on the appointment of the single surveyor then the fall-back position would be for each party to nominate their own surveyor with a third surveyor appointed by the other two surveyors to assist. Following the determination of the boundary by the single or three surveyors each party would have 28 days within which to appeal to the High Court for the decision to be reviewed. If no appeal is lodged within that time limit the decision of the surveyor(s) is deemed conclusive and notice of the outcome is then lodged at the Land Registry which would be obliged to amend the respective registered titles to reflect the determined boundary.
Of course the determination of the boundary by these means may only be one aspect of the dispute. It may be that the neighbour needs to remove a structure from your land and refuses to do so or there may have been some injurious effect on your land or a diminution in its market value meaning there is a financial element to the dispute. The process outlined cannot resolve such matters so ultimately an application to the court to remedy an act of trespass or for compensation for loss may still be necessary. Consequently, well intentioned though the Bill may be, I wonder if it may not achieve the outcomes hoped for if it passes into law. I’m sitting on the fence on that one!