A new protocol has been developed for use where neighbours are in dispute about the location of the boundary between their properties. It applies to commercial and residential properties situated in England and Wales and provides best practice guidance for the efficient resolution of disputes.
Establishing boundaries is important because the boundary of a property determines in respect of what land the rights and liabilities of the property owner or occupier will operate. However, those of us involved in the resolution of property disputes know that a boundary dispute, particularly in a residential context, is rarely about the land itself, but about broader issues between the parties which have often been festering for some time.
Entrenched positions and the need for both legal and surveying advice can result in costs which are out of proportion to the value of the land at issue. If the parties are unable to agree a solution, then one will be imposed by the court, but this usually results in one - and often both - parties feeling highly aggrieved at the end of the process (even the winner will find themselves out of pocket as the court will usually only permit them to recover a proportion of their legal costs from the loser).
New Boundary Disputes Protocol
The Protocol for Disputes between Neighbours about the Location of their Boundary (The Boundary Disputes Protocol) has been developed by leading lawyers for use where neighbours are in dispute about the location of the boundary between their properties. It applies to commercial and residential properties situated in England and Wales and has three main aims:
- To ensure that neighbours exchange sufficient information in a timely manner to minimise the scope for disputes between them;
- To enable any such disputes to be readily resolved, including by alternative dispute resolution (ADR), rather than proceed to court; and
- To keep costs to a minimum.
The Protocol constitutes best practice guidance for the efficient resolution of disputes. It has the support of the Property Litigation Association and, in time, is expected to have widespread endorsement from the property industry. It is suitable for use where attempts to resolve the dispute by informal discussions have failed and a more structured dispute resolution process is needed.
Exchange of information
The Protocol details a series of steps for the parties to follow, including identifying the first conveyance by which their properties fell into separate ownership (very often the key for unlocking the entire dispute), exchanging any documentary evidence about the physical features which existed on the ground at the time of the first conveyance (e.g. old photographs) and identifying any witnesses.
The Protocol then lays down ground rules for the use of expert surveyors. A single expert should be jointly appointed in most residential boundary disputes (the expert owes the same duties to both parties and the parties share the cost). In other cases, for example where the value of the land justifies separate experts, the surveyors should produce reports, meet, identify and narrow the issues between them in accordance with a set timetable. A supplementary guidance note sets out what the parties should expect from the surveyor appointed to assist with the resolution of the dispute.
Alternative dispute resolution
Once the above steps have been taken, the Protocol states that there should be a meeting, preferably on site with the parties and the surveyor(s), to see whether the boundary can be agreed.
If agreement cannot be reached, the parties should consider whether some form of alternative dispute resolution (ADR) would assist them to resolve the dispute. Options include:
- arbitration by a qualified and experienced lawyer or surveyor agreed by the parties or appointed in default of agreement by the Chartered Institute of Arbitrators;
- expert determination by a jointly appointed qualified and experienced lawyer or surveyor; or
- mediation where an independent third party mediator helps the parties to come to a mutually acceptable outcome. The process is not binding and the parties retain control over the decision of whether or not to settle and on what terms.
If the parties are still unable to reach agreement, the final step will be for the dispute to be referred to the court or (by way of a Land Registry application) the First-tier Tribunal (Property Chamber) (Land Registration) for determination. However, the Protocol rightly warns the parties that if they fail to consider ADR (and comply with the Protocol generally or take equivalent steps) before referring the dispute to the court then there may be substantial costs consequences whatever the eventual outcome.
The Protocol provides a structured and consensual way of resolving boundary disputes and is part of an ongoing effort by lawyers, judges and the Government to encourage parties to exchange information and attempt to resolve their disputes without going to court.
Property Boundaries (Resolution of Disputes) Bill 2016
In a separate development, Parliament is considering removing boundary disputes from the courts with the Property Boundaries (Resolution of Disputes) Bill 2016 which is in the initial stages of the Parliamentary process. The Bill provides a mechanism whereby adjoining neighbours can resolve a boundary dispute without (at least in the first instance) recourse to the courts. Instead, the boundary is determined by surveyors appointed for the purpose and any appeal must be made to the High Court within 28 days. The Bill as it is currently drafted is not without its difficulties and it remains to be seen whether, if it becomes law, it will provide a cheaper and more efficient alternative to the courts for resolving boundary disputes.
If you would like advice or assistance in relation to the above, please contact a member of our Dispute Resolution Team or Planning & Environment Team.
PLANNING & ENVIRONMENT - EXPERTISE
DISPUTE RESOLUTION - EXPERTISE