It is common for a boundary dispute to arise as a result of one owner erecting a new boundary fence not on the established boundary line (that may have been there many years) but where they claim the legal boundary line should be.
Often the party moving the boundary will refer only to the Land Registry title plan to support their argument. However, the Land Registry title plan does not determine the location of the legal boundary. It will only provide a general guide as to where the boundary is unless the boundary has been formally determined or a boundary agreement entered into.
The Land Registry title plans are based on Ordnance Survey mapping that is not precise and has a degree of tolerance. Ordnance Survey do not map legal boundaries they only map physical features. Any analysis that attempts to create a legal boundary by reference only to the Ordnance Survey mapping is flawed and unlikely to carry weight when put to legal scrutiny.
Boundary disputes
Boundary disputes are complex and much evidence will need to be considered by the courts and tribunal when considering the same. In order for the courts or tribunals to determine the legal boundary it is necessary to have regard to the pre-registration title deeds and plans and the physical features on the ground. Should litigation arise it will be necessary to appoint a boundary surveyor as an expert to prepare a CPR compliant report on your behalf for the court to consider.
Boundary disputes between neighbours frequently become inflamed and as a consequence these types of disputes often reach the courts despite the fact that the value of the land in dispute is of little value. The legal costs involved in taking a matter to trial can be disproportionate to the value of the strip of land in dispute.
In the case of Huntley v Armes [2010] EWCA Civ 396 where the dispute involved 14 inches of land it was noted that the longer the case carried on the more entrenched and emotive the parties became despite the rising legal costs.
The courts have indicated for some time now that these types of dispute are highly suitable for Alternative Dispute Resolution (particularly mediation) in view of the substantial legal costs involved in getting a matter to trial. The courts have indicated that proceedings should be issued as a last resort after the parties have attempted to try and resolve the dispute using Alternative Dispute Resolution.
Mediation
Mediation is a meeting between the parties their legal advisors and a mediator (trained in dealing with negotiations between two opposing sides) who facilitates discussions between the parties and endeavours to help them reach a settlement. The Mediator helps the parties to understand each other’s position and move closer to resolution whereby it may be possible to find a solution that is acceptable to both parties.
Discussions held at the mediation are entirely on a without prejudice basis. Mediation is an informal and flexible process and does not compromise a party’s position should the matter not settle and go onto litigation. Any settlement reached at the mediation will be reflected in an agreement and signed by both parties that will be binding.
Often mediations involving boundary disputes will be held on site. Mediations can be arranged quickly and have a high success rate. We at Quinn & Co have considerable experience in representing clients in mediations concerning boundary disputes and have found that in our experience mediations often resolve the dispute. It is a very quick and cost effective way of resolving a dispute.
Mediators will charge a fee for the mediation that will be shared equally between the parties in the dispute. Mediators often have expertise in the area and can be surveyors, or barristers or solicitors.
As mentioned the courts are keen for parties involved in boundary disputes to engage in mediation. The court may penalise a party who has unreasonably refused to mediate when the issue of costs arises at the end of the trial.
When proceedings have been issued in a case and the court orders direction for the conduct of a matter the court stresses the need for the parties to consider Alternative Dispute Resolution at all stages of the proceedings.
In a recent case this firm was involved in the court ordered (in a directions Order) that: “At all stages the parties must consider this litigation can be resolved by Alternative Dispute Resolution (including mediation): any party not engaging in such means proposed by another shall respond in writing giving reasons within 21 days of receipt of that proposal. That correspondence must not be shown to the trial judge until questions of costs arise.”
It is therefore necessary to be able to provide reasonable grounds for refusing to engage in mediation.
The courts have made clear that they will encourage the parties to mediate a dispute at all stages of proceedings. It is therefore necessary to seriously consider this option before issuing proceedings.
Quinn & Co have experience of dealing with rights of way disputes. If you wish to discuss your case and see how we can help you please contact Joseph Quinn on 01392 248858 or email us at mail@quinnlaw.co.uk or fill in our contact form and we will call you as soon as possible.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such.
Related Articles
Resolving Boundary and Rights of Way Disputes with Mediation