A simpler way to draw the line?
9th Apr 2018
Boundary disputes are renowned to be messy, expensive and often driven by factors in addition to the piece of land in question alone. In fact, by the time the matter has been determined by the court, the legal costs have often outweighed the value of the disputed land, sometimes several-fold.
Traditionally, the channel for having such disputes adjudicated upon is through the courts, usually the County Courts. Parties are encouraged by the courts to engage in alternative dispute resolution, such as mediation, and Judges can make adverse costs orders if a party is found to have unreasonably refused to engage in settlement attempts. However, to date there has never been anything making this compulsory.
This may be set to change as the Property Boundaries (Resolution of Disputes) Bill makes its journey through the House of Lords. This is a bill which makes provision for the resolution of disputes concerning the location or placement of boundaries and private rights of way relating to the title of an estate in land. Its aim is to reduce the need for parties to litigate such matters and to encourage early settlement of such disputes.
In its present form, the key points are as follows:
- All proceedings within the scope of the legislation which are ongoing when it comes into force will have to be stayed for the new procedure to be followed.
- Where a dispute has arisen but no court proceedings have been issued, the parties will have to first partake in the new procedure. If anyone issues court proceedings without doing so, they will not be entitled to recover their costs incurred in the issue and service of those proceedings from the other party.
- The new procedure provides for the dispute to be determined by surveyors, either one agreed joint surveyor or, if the parties cannot agree a joint surveyor, three surveyors – one appointed by each of the parties and a third appointed by those two surveyors.
- The agreed surveyor, or as the case may be, the three surveyors or any two of them, shall determine to precise location of the boundary or location and extent of the right of way, the extent to which any building or other structure constructed on the land of one owner encroaches over the boundary, and the costs of making the award.
- The surveyor(s) will also determine by whom any costs are to be paid.
- Either party to the dispute may appeal to the High Court against the award within 28 days of the making of the award.
- It will be an offence for an owner, occupier or agent of land to refuse to permit a surveyor, his agent or workmen to enter that land to carry out the work that they have been appointed to do.
Whether, and if so, when, the Bill will come into force remains to be seen, but it is hoped that it will provide a degree of consistency in resolving disputes of this nature and save landowners from engaging in lengthy and expensive court proceedings.
The property litigation team at Rogers & Norton are experienced in dealing with a range of disputes relating to both commercial and residential property, including boundary disputes. If you are considering bringing a claim, or are already in dispute with your neighbour, we would be pleased to assist you. Please contact Elizabeth Gibson at email@example.com or on 01603 675641.