Are the courts finally going to say goodbye boundary disputes?
February 15, 2018
For many years boundary disputes had been notorious for generating more heat than light. The reasons include the strong feelings they invoke and the disproportionate expenditure on, often, small parcels of land. Such disputes often cause the parties to incur significant expenditure and to face judicial criticism at the end of the case, even if the party incurring that expenditure is ultimately successful, leading to potential problems for the winning party in recovering his costs.
The perception is that such actions are becoming rarer, but this is not necessarily borne out by statistical analysis. For example, between November 2011 and March 2012, well after the arrival of the present litigation landscape, although before the arrival of the Jackson reforms, no less than six boundary disputes came before the Court of Appeal. All six involved residential properties and some involved strips of land as small as four feet (see Theresa Adamson and Alicia Foo: “Where to Draw the Line” Estates Gazette 29 September 2012).
A moment’s reflection reveals why this may be so. The need for certainty as the boundary is increased not reduced as the pressure on land-use becomes greater. As smaller and smaller parcels are created out of a limited supply of building land, extracting the maximum plot size becomes important. But the number of these cases which involve unlocking any development potential must be relatively small and the larger reason is just that there is less give and take between neighbours, particularly in an urban setting.
It is against this background that two recent developments deserve consideration. The first development is the re-introduction into Parliament of the Property Boundaries (Resolution of Disputes) Bill. This reached its second reading in the House of Lords last July. I will outline the key features of that Bill below. The second development is the Boundary Disputes Protocol. That Protocol, available free on the Property Protocols website, is an attempt by lawyers in consultation with the surveying profession to produce sensible practical guidance. The Protocol, which exists outside the CPR, is an attempt to identify issues which are likely to be important to resolving these disputes, whether or not they ultimately go to court. In many cases this will help to resolve them early but also, once the dispute goes to court, it may at least enable the parties to know what they are really arguing about. The authors of the Protocol make the valid point that frequently these disputes are prolonged by the absence of a clear plan. Money expended on a jointly prepared plan is likely to be money well spent, therefore. The aim of such a protocol is to minimise costs before they become an intractable issue.
This Bill was originally introduced to Parliament before the last General Election by Charlie Elphick, the MP and former solicitor, but failed to pass all its stages before the General Election 2015. The Bill was introduced into the House of Lords by Lord Lytton in the last parliamentary session.
It aims to replace the current system of court-based litigation with a system of expert determination, similar to that prevailing under the Party Wall Act 1996. The Bill proposes that the parties to the dispute appoint, first one surveyor, then a second surveyor and ultimately a third surveyor to adjudicate on their dispute. The surveyor or surveyors will ultimately make an award which is enforceable in the County Court but there is a right of appeal within 28 days final decision. Otherwise, the surveyor’s, or surveyors’, determination is conclusive. Those with experience of practice under the 1996 Act will be familiar with the procedure, which has been around in various guises since the 19th century in London and certain other areas of the country. As well as applying to boundary disputes the Bill will also apply to disputes about easements.
The Bill has attracted a number of criticisms, not least of which is that at the present time the prevalent method of dispute resolution is, in practice, the widespread and increasing use of mediation and other forms of ADR. This is widely used in preference to the courts, where it is difficult to obtain a specialist tribunal to resolve these disputes and where the costs consequences are often disproportionate. The advantages of such a dispute resolution method are of course well-known. It is a voluntary process that is potentially considerably less expensive and potentially less acrimonious than litigation. Perhaps more importantly, where parties have to live next door to one another in the future, there is the potential for reduced acrimony. This Is a important factor when advising clients. Alternatively, the parties could simply appoint an agreed expert to give his opinion at considerably less cost. The procedure under the Party Wall Act , which became law before the widespread use of mediation and other forms of alternative dispute resolution, also attaches a great deal of importance to the work of surveyors. They are certainly helpful resolving resolving the technical aspects of these disputes. However, often boundary disputes involve consideration of essentially legal issues, such as the correct interpretation of the parcels clause in a conveyance or transfer, as well as adopting the correct approach interpretation of the plan. This is, essentially, a legal task. A lawyer properly instructed, preferably working in conjunction with a suitably qualified expert surveyor, is more likely to be of use to the client in resolving the dispute than a surveyor, whose legal skill set is likely to be more limited.
A further curious feature of the present proposals if they were to become law is that the Ministry of Justice itself carried out a scoping study in 2011 which drew the conclusion that the imposition of a 1996 Act- style dispute resolution methods were not justified. It recommended the encouragement of ADR and specifically mediation as the better approach.
The Boundary Disputes Protocol starts from the premise that if the parties have a proper understanding of the legal and factual issues in the case they are more likely to achieve an early settlement of their dispute. Therefore, the first stage on the way resolving the dispute is the appointment of a surveyor to prepare a suitable plan. There is also provision for early disclosure of photographs and so forth. Experienced lawyers and surveyors are given a role and the ADR process is incorporated within the timetable. In attempting to eliminate friction between disputants in these cases, the Protocol encourages the early resolution of the disputes based on identifying how the dispute as to the boundary in question arose. Overall the protocol is a constructive attempt to eliminate the types of disputes which are reported from time to time, including those in 2012 referred to above.
The Protocol makes the valid point that the widespread use of expert evidence is not necessarily required, particularly, the appointment of separate experts for each of the parties. A single joint expert should be appointed on joint instructions wherever possible. Having prepared an accurate plan, showing the physical features of the site at the date of inspection, a site meeting is recommended. The different lines of the boundary in dispute, as marked on the different conveyances, should be shown on the plan. The expert should explain various possible boundary lines and what they translate to on the ground. Photographs are likely to and assist and should be exchanged at an early juncture.
The Protocol also deals with the means of recording a settlement when it is achieved. A boundary agreement is enforceable if it recognises the line of the existing boundary provided it is not involve the transfer of land. In relation to registered land, the HM Land Registry do not purport to show extent of the legal boundary, recording instead only the general boundary on the title plan. Nevertheless the parties can simply endorse their agreement on a carefully drawn plan. If necessary this can be submitted to the Land Registry so as to show where they have agreed the boundary should be.
The Protocol also provides helpful guidance notes in relation to the need for a site inspection how to prepare for joint measurement of the site and the recording and analysis of the boundary positions, as well as recording the ultimate outcome of any negotiation.
The Boundary Disputes Protocol seems to take these disputes in a very different direction than the Bill and is likely to be of greater use to practitioners than a compulsory method of dispute resolution which, perhaps, owes more to the days before ADR was widely used than the post-Jackson world of widespread mediation. The cost of appointing specialist party wall surveyors, who are not easy to come by outside London, is likely to be significant and a great burden on parties. It has not escaped the attention practitioners outside London that the 1996 Act has been relatively little used and, even after more than 20 years, is still not as widely known about as one would expect. It is frequently ignored or misapplied by developers. The fear is that if the new Bill becomes law the parties will tend to resolve their own disputes by informal methods including self-help. These will not necessarily create the degree of certainty that will be required when they come to sell their properties.