The boundary dispute remains a feature of the litigation solicitor’s practise and even for mine in Sussex which, on the South Coast particularly, is home to a number of housing developments built long ago on formerly agricultural land.
The term “boundary dispute” covers a number of issues. The most common follows from a property owner doing work to his boundary by replacing a wall, hedge or fence and placing the new boundary in the wrong place thereby enclosing some neighbouring land and depriving the neighbour of the use of it.
It is essentially a matter of trespass. It ought to be easy to resolve. The neighbour who has been robbed of a piece of his garden has the right to issue a claim in the County Court for an injunction to prevent the trespass and to have the original boundary line restored. However, a number of factors can make this a lot less simple than it looks.
The first is that enclosing the land for a period of 12 years without complaint from the deprived neighbour can result in title to the “stolen” land vesting in the trespasser.
The reason for this is that the Limitation Act 1980 (not the “Statute of Limitations” which so many people have adopted from too many American legal dramas) places time limits on making claims. For actions based on a deed the time limit is 12 years and after that period the encroaching owner used to have a complete limitation defence by way of adverse possession. The original owner was time barred from making a claim.
The Land Registry, whose job it is to record and guarantee the legal title to property in England and Wales saw the problem with this and the Land Registration Act 2002 brought in a new regime. The person claiming title to the enclosed land must now apply to the Registrar at or after 10 years of adverse possession to be registered as the owner. Notice is given to the neighbour. If the neighbour does not object, the change to the title is made after the person claiming has been in adverse possession for 12 years or more. If the neighbour opposes the change then the Registrar will reject it except in a limited number of circumstances and the dispossessed owner has two years in which to issue proceedings before missing the limitation period.
It seems a gloriously simple way to prevent expensive disputes. The dispossessed owner gets a statutory reminder that time is running against him and can do something about it before the 2 years from the giving of notice has expired. However, that is not the end of it.
While the procedure prevents anyone from dispossessing the paper owner without giving notice allowing the paper owner to bring a claim in trespass, there can still be a dispute as to where the boundary lies according to the deeds. The Land Registry plans only provide general guidance as to the boundary. They are not precise and there can be a dispute as to what they actually represent.
Quite apart from 12 years' adverse possession, the adverse possessor might argue that the "paper owner" has failed to put right a misconception as to the true line and is prevented (estopped) from claiming that it is as he now says it is.
These disputes can be expensive and that leads to other problems. There will be arguments about the proportionality of the costs in relation to the value of the land concerned. Costs can be reasonably and properly incurred but not proportionate to the subject matter of the claim.
Therefore the winner may gain the moral highground (and the disputed land) but may not recover all or any of his costs.
We still have the idea of our homes being our castles deeply ingrained. There are often many non-monetary reasons for taking action over a boundary dispute and, in honesty, it is puzzling that a trespasser who refuses to acknowledge that he is wrong should be relieved of the innocent parties expense in proving the wrong.
Boundary disputes will not be disappearing but they should play less of a part in the Court’s workload and there are ways to achieve this.
The most obvious point is that the Civil Procedure Rules promote mediation and Alternative Dispute Resolution. A site meeting between parties to a dispute and their solicitors may have benefits. They will hopefully be told the harsh realities of the costs rules under the most recent revisions to the Civil Procedure Rules.
If the dispute concerns where the boundary lies according to the deeds, there is nothing to stop either party from instructing a surveying expert to give an opinion on it. As the Court would probably direct such an expert to be appointed as a single joint expert witness at the joint expense of the parties in the event of litigation, why not try to agree that step before the issue of proceedings?
It might, at best, be agreed that the expert's opinion is to be determinative (it often is in litigation) but at worst it will allow both sides the understand the likely outcome if they continue in dispute. It may also reduce the issues if there are continuing arguments over, for example, the length of time for which adverse possession has been taking place, whether that possession is actually adverse to the interests of the owner or whether any estoppel has arisen.
Again, these ought to be comparatively simple disputes as to fact. If the solicitors understand that there is no such thing as certainty in litigation and that recovery of costs could be difficult, and if they advise their clients accordingly, the risks can be assessed and the parties can come to a negotiated agreement. If not, the process will at least have saved some money and some Court time. Engaging in it may even make it a little easier to recover at least some costs.