A typical boundary dispute arises from a misunderstanding as to where the boundary is or should be, located. The classic example is a disagreement between neighbours over a garden fence, wall or driveway which has genuine importance to the neighbours concerned but is of very little if any, monetary value to them.
The position will usually not be clear, hence the need to obtain legal advice and possibly involve the Court. For this reason, it is important to adopt a methodical approach.
The first step to identifying the likely boundary is to obtain an up to date register and plan from the Land Registry. That said, it is important to remember that the Land Registry plans do no show the precise location of the boundary. Unless the boundary has already been determined and fixed by the Land Registry, the red line that outlines the land is only intended as a general indication. It cannot be relied upon to show the true position of the boundary. The next step, therefore, is to review the actual deeds and other relevant title documents, such as the original conveyance, contract or transfer plans, for comparison with the Land Registry plans. If there is an inconsistency between the Land Registry plan and a conveyance plan, then the conveyance plan will usually prevail. This may provide a definitive answer.
If it is clear that there is, at the least, uncertainty about the location of the boundary, then further investigation will be required. The plans may be scaled or contain measurements. Although this may be a useful indicator to plot the boundary, it may not be definitive as full dimensions may not have been provided. The measurements themselves might also be wrong, especially when dealing with a small parcel of land. The physical features on the ground may also have invariably changed over time, as may the agreed location of the boundary.
There are legal presumptions which, if they apply, may assist. Most notably, the hedge and ditch presumption. If land is separated by a hedge and ditch, then the presumption is that the ditch was dug at the very limit of the land with the earth removed used as the base for the hedge. The presumption, therefore, is that the neighbour who owns the ditch also, in turn, owns the hedge. This presumption can, however, be rebutted by evidence showing a contrary intention.
Plans can be inaccurate, misunderstood or misinterpreted. They cannot always be relied upon. For this reason, other extrinsic evidence may be useful to try to ascertain the boundary.
Witness Statements may be required from those who have known the land in the past and who have knowledge as to how the boundary may have changed, such as predecessors in title. This may include obtaining historical photographs. There may also be relevant documents in the hands of a third party or historical archives. If available, such evidence may form a convincing and compelling account as to how the land, and thereby possibly the boundary has changed. In some circumstances, the Conveyancing file from when the land was acquired may contain some information, if still available.
Fixing a boundary
If an agreement is reached between neighbours as to the location of the boundary, then they may be able to record that agreed boundary by applying to the Land Registry to have that boundary determined and fixed on the title registers.
Another common, and perhaps related, a dispute can arise in relation to the question of who owns a boundary structure. This again may be expressly confirmed in the deeds by what are known as ‘T-marks’ on the plan.
Unless there is a specific covenant requiring a neighbour to retain and maintain a boundary structure, then there is not necessarily an obligation to do so. If there is such a covenant, however, then careful consideration should be given to the nature and extent of the obligation imposed. A boundary structure may also be a party structure, in which case the neighbours will generally be equally responsible for it.
Boundary disputes, and in particular neighbour disputes, can be complex, hard-fought, and costly. There may be other related matters such as adverse possession, nuisance or trespass. No dispute will ever be the same. There can also be statutory requirements to consider, in particular under the Access to Neighbouring Land Act 1992 or the Party Wall Act 1996.
Every effort should always be made to try to achieve a sensible, proportionate and amicable resolution in the interest of maintaining future neighbourly relations. With this in mind, you should always first explore the prospects of reaching an agreement, possibly through mediation. Nevertheless, depending on the nature and extent of the dispute, and in particular, the stance taken by the parties, it may not always be possible to reach a compromise. If you find yourself in this unfortunate position, then you should always seek legal advice, and T G Baynes are here to help.
If you require assistance with such matters, then please do not hesitate to contact T G Baynes on 0208 301 7777 or e-mail email@example.com.
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