LEGAL
Surrey’s Premier Lifestyle Magazine
We used to be such great neighbours...
Most of us like to think that we would use our common sense and neighbourliness to find a swift, amicable resolution to any suggestion by our neighbour that the boundary fence is ‘not quite straight’ or ‘has been replaced a couple of inches to the wrong side’ by the fencing contractor. These are minor issues, right? In most cases, yes, but it is often not the incorrectly placed fence which sparks the dispute. There is often some other reason more important than the land in question.
Photo copyright: David Ronald Head | 123rf.com
At Mundays, we have handled and successfully resolved many boundary disputes involving all sorts of shapes and sizes of land. Our experience tells us that the classic triggers for causing boundary disputes are things like the extension that next door is planning which you really do not want built or the second house they are seeking to build in their large back garden, which may overlook your own.
A neighbour’s proposed development sometimes causes the boundary position to be examined when it might otherwise not. It could be because the neighbour planning the works considers the fence is not in the right place and were it realigned, this would make their works easier or facilitate a larger development. If they were not planning works, they may not care. Sometimes, it is simply that a neighbour has, despite best efforts, failed to prevent their neighbour from obtaining planning permission for that (in their eyes) hideous extension and so they look for other options to create leverage in the hope of causing their neighbour to reconsider their plans.
How can it be that we hear of boundary disputes rumbling on for months if not years? Is it really that difficult to locate the boundary of your land?
Most land in this country is registered at HM Land Registry. This means that your land has a bespoke title number shown on a registered title; the registered title describes your property and tells you about most property rights which affect it. It will also have a registered plan showing your property outlined in red.
Contrary to what many people think, the red line on the plan simply shows a general boundary line; it does not identify the precise location of your boundary. It may, of course, be of some use in dealing with a boundary dispute, but it will be next to useless for a dispute over a few inches here or there.
An exception to this is where the boundary has become a ‘determined boundary’ under section 60 of the Land Registration Act 2002. Here, the registered plan will show the precise location of the boundary.
A neighbour’s proposed development sometimes causes the boundary position to be examined when it might otherwise not. It could be because the neighbour planning the works considers the fence is not in the right place and were it realigned, this would make their works easier or facilitate a larger development. If they were not planning works, they may not care. Sometimes, it is simply that a neighbour has, despite best efforts, failed to prevent their neighbour from obtaining planning permission for that (in their eyes) hideous extension and so they look for other options to create leverage in the hope of causing their neighbour to reconsider their plans.
How can it be that we hear of boundary disputes rumbling on for months if not years? Is it really that difficult to locate the boundary of your land?
Most land in this country is registered at HM Land Registry. This means that your land has a bespoke title number shown on a registered title; the registered title describes your property and tells you about most property rights which affect it. It will also have a registered plan showing your property outlined in red.
Contrary to what many people think, the red line on the plan simply shows a general boundary line; it does not identify the precise location of your boundary. It may, of course, be of some use in dealing with a boundary dispute, but it will be next to useless for a dispute over a few inches here or there.
An exception to this is where the boundary has become a ‘determined boundary’ under section 60 of the Land Registration Act 2002. Here, the registered plan will show the precise location of the boundary.
Top tips for boundary disputes if one can’t be avoided
• Keep a clear record of the initial discussions with your neighbour and any key events.
• Take photographs of the boundary fence or other boundary features, particularly if you consider they are about to be removed or have been altered.
• Locate any deeds for the property you have in your possession.
• Seek legal advice at an early stage. Whilst it may be tempting to try to resolve the dispute on your own and conduct your own enquiries, it is possible that the steps you take or do not take might prejudice the merits of your case.
Whilst boundary disputes can be complicated, drawn out matters, we always consider with our clients at an early stage the available options for seeking to bring about an amicable resolution with their neighbour.
• Keep a clear record of the initial discussions with your neighbour and any key events.
• Take photographs of the boundary fence or other boundary features, particularly if you consider they are about to be removed or have been altered.
• Locate any deeds for the property you have in your possession.
• Seek legal advice at an early stage. Whilst it may be tempting to try to resolve the dispute on your own and conduct your own enquiries, it is possible that the steps you take or do not take might prejudice the merits of your case.
Whilst boundary disputes can be complicated, drawn out matters, we always consider with our clients at an early stage the available options for seeking to bring about an amicable resolution with their neighbour.
How do you determine where the fence should go in the absence of an agreement?
It is beyond the scope of this article to provide a detailed answer to this question, but here is a short list of some of the key issues which are commonly considered at the start of a boundary dispute:
1. Every piece of land started life as part of a larger piece. The first step is to identify and then find the conveyance which first conveyed the piece of land you now own. That document will have described the land sold and, with a bit of luck, attached a sensible plan showing its dimensions. Sadly, this is not that common and you often find that older conveyances only loosely describe the land sold or attach poor quality or poorly drawn plans.
Depending on how the land is described and the weight to be attached to the information on the plan, the aim is to ascertain from the conveyance where the original legal boundary to the land was intended to be.
2. Most property owners do not have the original deeds (or copies) for their property and unfortunately, but perhaps surprisingly, HM Land Registry does not retain all of the deeds it is sent. However, some documents are available to download from HM Land Registry’s website and some might be held in paper files they store off site. At Mundays, we offer to undertake a thorough search of the available records at the commencement
of any boundary dispute. We have, on occasions, located documents with HM Land Registry’s assistance which were once thought to be unavailable.
3. If the deeds cannot be found or do not help, what can you do? We would usually recommend, at the appropriate time, a number of enquiries be made, such as:
a looking at the boundary features on the ground. After a bit of rooting around you might find an old fence post, a bit of derelict brick wall or perhaps a section of chain-linked fence caught up in some brambles. Items such as these could be crucial clues in seeking to resolve the dispute. This investigation must be carried out entirely from your own property unless you have your neighbour’s consent to access their land;
b checking your purchase papers to see whether the seller said anything about the boundaries;
c speaking to other neighbours who may have lived in the area longer than you or, better still, the previous owners of your property, if you have their contact details. They might know when a certain fence was erected and whether its position was agreed with your neighbour or their previous owners; and
d instructing a boundary surveyor to obtain their advice in light of the evidence which has been obtained. We recommend that the surveyor is instructed by a solicitor to ensure that the instructions are appropriately prepared.
Adverse possession?
4. Even if there is evidence to prove that the fence is in the wrong position, a neighbour might claim to have acquired the right to be the registered owner of the disputed land due to their having been in possession of the disputed land for the required number of years without the consent of the neighbour. This is known as the law of adverse possession. Most claims for adverse possession are commenced by an application being filed at HM Land Registry.
Prior to the Land Registration Act 2002, a period of at least twelve years’ adverse possession of the disputed land was required in respect of claims concerning registered land. That is the period which still applies to claims concerning unregistered land.
However, for registered land the required period is now ten years save that, if the claimant can show that they had accrued twelve years’ adverse possession prior to 13 October 2003 and their land was already registered at that date, they can still bring their claim under the old twelve year rule as well as the ten year rule.
Surely the ten year rule is easier? Not always. Unlike the twelve year rule, proving ten years’ adverse possession is potentially just one of the hurdles which need to be overcome in a successful claim. A landowner who is served with a ten year rule application has the option both to challenge the alleged adverse possession and/or require the claimant to satisfy one of three available conditions. Claims can come unstuck at this stage.
As can be seen from this short note, boundary disputes can be far from straightforward.
It is beyond the scope of this article to provide a detailed answer to this question, but here is a short list of some of the key issues which are commonly considered at the start of a boundary dispute:
1. Every piece of land started life as part of a larger piece. The first step is to identify and then find the conveyance which first conveyed the piece of land you now own. That document will have described the land sold and, with a bit of luck, attached a sensible plan showing its dimensions. Sadly, this is not that common and you often find that older conveyances only loosely describe the land sold or attach poor quality or poorly drawn plans.
Depending on how the land is described and the weight to be attached to the information on the plan, the aim is to ascertain from the conveyance where the original legal boundary to the land was intended to be.
2. Most property owners do not have the original deeds (or copies) for their property and unfortunately, but perhaps surprisingly, HM Land Registry does not retain all of the deeds it is sent. However, some documents are available to download from HM Land Registry’s website and some might be held in paper files they store off site. At Mundays, we offer to undertake a thorough search of the available records at the commencement
of any boundary dispute. We have, on occasions, located documents with HM Land Registry’s assistance which were once thought to be unavailable.
3. If the deeds cannot be found or do not help, what can you do? We would usually recommend, at the appropriate time, a number of enquiries be made, such as:
a looking at the boundary features on the ground. After a bit of rooting around you might find an old fence post, a bit of derelict brick wall or perhaps a section of chain-linked fence caught up in some brambles. Items such as these could be crucial clues in seeking to resolve the dispute. This investigation must be carried out entirely from your own property unless you have your neighbour’s consent to access their land;
b checking your purchase papers to see whether the seller said anything about the boundaries;
c speaking to other neighbours who may have lived in the area longer than you or, better still, the previous owners of your property, if you have their contact details. They might know when a certain fence was erected and whether its position was agreed with your neighbour or their previous owners; and
d instructing a boundary surveyor to obtain their advice in light of the evidence which has been obtained. We recommend that the surveyor is instructed by a solicitor to ensure that the instructions are appropriately prepared.
Adverse possession?
4. Even if there is evidence to prove that the fence is in the wrong position, a neighbour might claim to have acquired the right to be the registered owner of the disputed land due to their having been in possession of the disputed land for the required number of years without the consent of the neighbour. This is known as the law of adverse possession. Most claims for adverse possession are commenced by an application being filed at HM Land Registry.
Prior to the Land Registration Act 2002, a period of at least twelve years’ adverse possession of the disputed land was required in respect of claims concerning registered land. That is the period which still applies to claims concerning unregistered land.
However, for registered land the required period is now ten years save that, if the claimant can show that they had accrued twelve years’ adverse possession prior to 13 October 2003 and their land was already registered at that date, they can still bring their claim under the old twelve year rule as well as the ten year rule.
Surely the ten year rule is easier? Not always. Unlike the twelve year rule, proving ten years’ adverse possession is potentially just one of the hurdles which need to be overcome in a successful claim. A landowner who is served with a ten year rule application has the option both to challenge the alleged adverse possession and/or require the claimant to satisfy one of three available conditions. Claims can come unstuck at this stage.
As can be seen from this short note, boundary disputes can be far from straightforward.
James Picknell
is a Partner at Mundays, a member of the Property Litigation Association and is listed in Chambers & Partners 2018 as a leading individual of Real Estate Litigation. James has extensive experience advising on adverse possession and regularly advises private clients on disputes in the areas of restrictive covenants, rights of way, nuisance and boundaries. James also focuses on contentious property matters including advising on dilapidations, forfeiture, rent review, lease renewals, breach of covenant, rent arrears recovery, service charge disputes and possession actions. He is highly experienced in advising landlords and tenants on the exercise and consequences of break notices.James can be contacted on +44 (0)1932 590587 james.picknell@mundays.co.uk
essence info
Mundays LLPCedar House, 78 Portsmouth Road, Cobham KT11 1AN
Telephone: 01932 590500
Website: www.mundays.co.uk
The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2018.