Boundary Disputes

Every property has a title plan filed with the HM Land Registry (which can supply copies). People assume the Land Registry can solve these disputes easily just by getting out the plans. Sadly this is not always the case.

The Land Registry admits that its title plans show only ‘general boundaries’. In many cases these should usually be sufficient. Officials can supply copies of the:

• title register – the title number, who owns it, what they paid (and whether it is subject to a mortgage), whether there are any rights of way across the land
• title plan – the location of the property and general boundaries
• title deeds – the legal papers that are transferred from one person to another as proof of ownership.

But they cannot be any more precise than that. The general boundary may not show minor adjustments to take account of bay windows, sloping land or other similar features.

One Land Registry manager cynically describes boundary disputes as “the weapon of choice” for neighbours who have already fallen out over noise or nuisance issues.

So when the official body responsible for registering land and titles is unable to help, how do you find out where the real boundary is supposed to be?

Here’s the unfortunate reality: if there is no precise record of a boundary, you will have to create one yourself – and that means reaching an agreement with your neighbours (however stubborn and annoying they may be).

Here are your options:

• either you agree a boundary with the neighbours
• or the boundary will be determined for you by an independent expert

It makes sense if you and the neighbours can reach an agreement – because you will probably have to do so anyway sooner or later.  Agreeing a boundary amicably saves all the expense and bother of taking your neighbour to court (or defending yourself if they take you to court).

Going to court should only ever be a last resort. It is a very expensive, time-consuming and stressful way to resolve boundary disputes. And you may still not get everything you want. It is far better to reach an agreement.

But take legal advice before agreeing to anything. Here are some basic legal principles for creating a boundary agreement:

• The agreement will determine the true position of the boundary.
• The agreement can include the position of a fence, hedge or other boundary marker and also who is responsible for looking after it.
• It may or may not involve the transfer of any land.
• If it does involve a land transfer, the landowners involved are advised to contact our residential conveyancing team. The newly agreed boundary will come into effect only when this land deal is done (even if the amount of land involved is very small).
• The agreement should be recorded by HM Land Registry.

Remember that any agreement is binding for both parties – and also for their successors, for anyone else who then moves into either property. So do not rush into an agreement without first getting professional advice.

As well as a solicitor, you may also need the services of a chartered surveyor or another similarly qualified professional. If so, you will need to:

• have a detailed plan drawn up, showing the exact position of the agreed boundary
• have the agreed boundary added to the title plans
• file this agreement with HM Land Registry.

Do not despair if initial negotiations with your neighbours have broken down: it may still be possible to reach an agreement with the help of a solicitor.

Going to court is not the only way to solve the issue. Alternative Dispute Resolution (ADR) is cheaper, quicker and less stressful. Methods include:

• Mediation – a solicitor can act as a mediator to help broker an agreement that both sides find acceptable (saving them time and money).
• Mediation is a common legal procedure with a good success rate (so much so that an offer of mediation is now a mandatory starting point in all divorce cases).
• Expert determination – both sides submit evidence to an independent expert who will carry out site visits and obtain further evidence (such as Ordnance Survey National Grid co-ordinates, measurements of distance from properties, old aerial photographs). The expert’s decision is legally binding on both parties.
• Adjudication – like determination, this leaves the final decision up to a third party. So you lose control of the process. Adjudicators cannot award costs. Their awards (decisions) are enforced by the courts. You can go to arbitration or court if you do not like the adjudicator’s decision.
• Arbitration – you and the party must both agree to arbitration before it can take place. You share the costs. Unlike an adjudicator, an arbitrator can legally
  award costs.

Most of the time this is outlined in the property deeds – sometimes there are clues in the form of ‘T-marks’ on the deed plans. But this is not always the case.

There are various myths about who owns which fence – and these are the two most common:

• “I own the fence because it is on the left side of my garden.” WRONG!
• “I own the fence because the fence posts are on my side of the garden.” WRONG AGAIN!

In reality, the fence belongs to whoever’s land it is on – even if the neighbour helped to pay for it.

Like so many other types of boundary dispute, you and your neighbours will need to reach an agreement.