Disputes over the position of a boundary or rights over a neighbouring property, are often impossible to resolve to the satisfaction of both parties, and in many residential cases the costs involved in litigating the matter are many times the value of the land involved.
Before embarking on this very difficult and costly litigation the parties should consider the matters set out below.
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Boundary Disputes - What Evidence Can You Obtain to Show Where the True Boundary Lies?
Whilst these might assist, unfortunately there is almost universal inaccuracy or accuracy limitations with the plans used for new building estates, those used in conveyances, and even those used by the Land Registry.
Even if you have an accurate plan attached to a deed, such as the original transfer or conveyance, the limitations of accuracy are at best 2m on a 1:1250 plan and up to 20m on a 1:10,000.
Owners often wrongly assume that the Land Registry entries are their 'deeds' whereas the old pre-registration deeds may be a far better indication of the position of the boundary at the time of the last sale.
The Land Registry plans do not set out to specify the boundaries and only show the approximate position under the 'General Boundaries Rule'. Indeed the very useful Land Registry Practice Guide 40 states that every official copy of a title plan is supplied with the following note:
"This title plan shows the general
position of the boundaries: it does not show the exact line of the boundaries.
Measurements scaled from this plan may not match measurements between the same
points on the ground. For more information see Public Guide 7 Title
What do your Deeds Show and Does it Matter?
Once an unregistered title is registered at the Land Registry, the old title deeds are redundant - these are then known as ‘pre-registration deeds’. Very few pre-registration deeds exist and instead landowners base their claim on the inaccurate photocopies of Land Registry plans - and then find out at Court that these are meaningless.
Even if you could say for certain that a boundary was in a particular position at some time in the past, there are legal doctrines which may have the effect of making the current (moved) boundary the correct one, and the rules of ‘equity’ (i.e. rules based on fairness) will be used by the courts to prevent unfairness or exploitation of an innocent party.
In some cases, ‘squatters rights’ over unregistered land exercised for 12 years will settle the matter, but in relation to registered land it is very unlikely ‘squatting’ will achieve anything if the true owner objects. This is often referred to as ‘Adverse Possession’.
Judges faced with a boundary dispute will often make a decision on the basis of what they see on the ground as in many cases there is no other clear evidence on which to base a decision.
In some cases, judges have ignored clear measurements marked on a deed plan if the circumstances show that this would be unfair or results in an interpretation at odds with what the original parties agreed.
"Easements" or Rights over Other Property
Disputes may arise over shared access ways, drainage rights, rights of light, rights to go onto the other owner’s land to carry out repairs, and the similar rights that your neighbour may claim to have over your land.
Once again, there is more to it than the information shown on the Land Registry entries.
Your rights over others and others' rights over your land (known as 'easements' or 'reservations of rights' as appropriate) may be contained in a deed referred to on the Land Registry entries, but may not be shown if they are 'implied easements' or 'easements of necessity' or where it was clear when the land was sold that it was going to be used in a certain way.
Easements may be acquired by long use of upwards of 20 years, known as 'easements of prescription', but may be limited to a particular type of use, not just general use.
It may be necessary to
obtain statutory declarations from previous owners or other neighbours to prove
usage over a period of time.
What Approach Should You Take?
If you are faced with a domestic boundary or property rights dispute that cannot be settled amicably by compromise, then litigation may cost upwards of £25,000 to £45,000 and it is likely that you will not be able to sell your house if potential purchasers learn of the dispute (unless that dispute has been fully resolved).
Mediation and arbitration might be a much better option, and indeed before issuing any proceedings you will need to show that you have tried to mediate or resolve the matter without the need to go to court.
Whether you win or lose you will have to deal with living next door to the other party after the case finishes.
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Consider All of the Information
If an issue arises you need to find all your pre-registration deeds, not just the Land Registry documents, and also if possible, see what your neighbour's deeds say.
It is not unusual for the deeds to be so inaccurate that they show that you both own the land in question.
It will be essential to have an accurate boundary plan prepared by a properly qualified specialist land surveyor to show what the position is and see how this compares with the deeds. Old Ordnance Survey maps showing the position of the boundary as at the last sale can be obtained at modest cost (see http://www.ordnancesurvey.co.uk/).
Aerial (Google Earth can be
of great assistance) or family photos may show the physical positions over the
Are You Insured?
Check your domestic house insurance or any existing legal expenses insurance you hold as boundary disputes are often covered. You should of course notify the insurer before taking any steps if there is a possibility that you may be covered.
It is likely they will have panel solicitors who will be appointed to act for you. You will not be given an option to use another solicitor but when it comes to issuing proceedings you have a right to choose which solicitor you would want to act in proceedings.
If you would like us to act for you then you should tell your insurers this at the outset and in most cases they will allow you to appoint us to act from the beginning as this is more economical than changing solicitors part way through a matter.
We are happy to act under insurance policies as long as the insurers will pay our normal hourly rates.
In some cases, it may be possible to insure against possible future claims for breach of covenants - known as Title Indemnity Insurance.
Other Useful Materials
An excellent and very readable plain-English guide to boundary issues is 'Anstey's Boundary Disputes' and it also contains useful information about fences, hedges, the dividing boundary line between semi-detached or terraced houses.
The Land Registry also
publishes a number of Practice Guides on their website which may be of
How We Can Help?
If the dispute is unresolved or is one that you cannot ignore then you should contact us as soon as possible, with all relevant information such as pre-registration deeds, photos, plans, etc. We can then give you an objective view of the matter.
We would suggest you do not instruct a surveyor until after we have seen you as there are very specific rules on the instruction of experts in court cases and we would be able to assist you with this.
To find out more and take advantage of our complimentary initial consultations with one of our legal experts call us today on 0800 999 4437 or click in the 'Get on touch' button above.