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Much like the equator, the tropics, or the UK’s “red-lines” in Brexit negotiations, a boundary is just another imaginary line. In this case a two-dimensional one separating two or more properties. It does not exist in any physical form, yet it has the ability to render perfectly rational neighbours senseless.
Stories are legion of neighbours falling out and incurring tens of thousands of pounds of legal costs arguing over this imaginary line. Sometimes the encroachments are substantial; more often than not, however, the trespass is entirely disproportionate to the value of the land. And even after the parties have their day in court, the matter often does not end there. Frequently, the decision taken by a judge leaves neither side happy; it may have ramifications over future ownership of boundary features, and you can all-but guarantee that the neighbours (who, after all, must still live next door to one another) never revert to “neighbourly” relations.
Nevertheless, on some occasions there is no alternative. If a neighbour encroaches over an already small garden, or trespasses over a boundary so as to prevent the owner from constructing an extension, then an encroachment of a few centimetres may well lead to a justifiable dispute. This author has had personal experience of a judge awarding a party £10 nominal damages for a trespass of 10cm (offset by a hefty order to pay the other side’s costs on an indemnity basis), and also of a judge granting a mandatory injunction and substantial damages for an encroachment of 1.75 inches. The latter case involved reducing the size of an alleyway to render it virtually unusable. As with so many things in the law, context is everything.
So, if you are faced with a boundary dispute, where do you turn? This article provides some practical guidance on where to start, where not to start, and the role of the judge if the matter reaches court.
A good place to start would be the Boundary Disputes Protocol, a non-binding pre-action protocol developed by a number of leading practitioners in the field. Unlike the CPR pre-action protocols, this protocol has no status in law; nevertheless, it provides a “best practice” guide to the early resolution of these disputes, and compliance with it is likely to be looked on favourably by any judge.
Poor quality boundary surveys are rife. A large proportion of disputes could be avoided by obtaining a high-quality survey at an early stage; this will inevitably involve a detailed plan (which should be in electronic format so that it can be reproduced, and from which detailed dimensions can be taken).
In many cases, specialist chartered land surveyors should be used. All too frequently, experts without specialist experience produce poor quality plans and reports, which do little to elucidate the position on the ground and, oftentimes, cause further confusion and entrenchment of positions.
RICS provides a useful search function on its website from which specialist surveyors can be located.
“You own the left-hand fence when facing your house.”
“You own the right-hand fence when facing your house.”
“A T-mark on a plan shows that you own the fence.”
“The Land Registry title plan lets you scale up to confirm measurements.”
Firstly, let us begin by destroying some commonly believed myths concerning boundaries. In spite of the best efforts of certain people to tell you, quite categorically, that you always own the left (or sometimes the right) fence in your garden, this has no basis in law.
Then there is the cause of so many boundary disputes: people scaling up from their title plans at the Land Registry to show that their boundary fence is in the “wrong position”. There are many things wrong with this:
All of this shows that reliance on Land Registry title plans will, in the vast majority of cases, be virtually worthless.
Not even T-marks provide the assistance perceived by many. Contrary to popular belief amongst many practising in the field, a T-mark on a plan does not raise a presumption of ownership. Although T-marks may indicate ownership of a boundary feature (see Seeckts v Derwent  EWCA Civ 393), that is not to say that they raise a presumption in law that the boundary feature belonged to the landowner (Lanfear v Chandler  EWCA Civ 1497). After all, the T-Marks may simply identify the subject matter of an express repairing covenant and not indicate ownership of that feature itself. Instead, the T-marks are simply one of a number of admissible factors which assist in understanding the ownership of boundary features.
There are some presumptions which do have a place in law. The Hedge and Ditch rule provides that where two properties are separated by a hedge and a man-made ditch (or a bank and ditch), there is a presumption that the boundary is along the opposite edge of the ditch from the hedge or bank (see Parmar v Upton  EWCA Civ 795 for a modern application of this rule).
Land abutting a highway is presumed to extend to the middle of the road (subject to the surface vesting in the Highways Authority, if appropriate), and the same presumption applies to owners of property abutting a natural non-tidal river.
There is also some merit to the presumption that “if the fence panels face away from you, the fence is yours” (see Hawkes v Howe  EWCA Civ 1136).
It must be recalled, however, that these presumptions are all rebuttable and some (such as the fencing presumption) appear capable of rebuttal on the slightest of evidence to the contrary. In the vast majority of cases, the presumptions will not provide anything like a definitive answer.
Where then, does the court begin?
Anyone looking to understand a boundary dispute would be well advised to consider the judgment of Mummery LJ in Pennock v Hodgson  EWCA Civ 873, which sets out the law succinctly and adroitly, and begins with the simple phrase: “How to construe a conveyance”.
When determining the position of a boundary, the court’s task is to ascertain the historic boundary line at the date of the earliest conveyance (that is, when the land was first divided). In construing that conveyance, the court must adhere to various principles. It must ultimately consider what a reasonable person, standing in the position of the parties with the relevant objective factual background knowledge, would have understood it to mean. The parties’ subjective beliefs about the position of the boundary are inadmissible.
It has been said that the topographical features of the land at the time of the conveyance are often determinative of the position of the boundary; as courts frequently state: “having the conveyance plan in your hand” to identify the features at the date of the conveyance is an appropriate method to ascertain the boundary.
Of course, how easy it is to understand the lay of the land at the appropriate time depends on the date of the operative conveyance itself. The boundary features of a new-build property a few years old will be easier to determine than those of a house constructed in the 19th century!However, this really comes down to a question of quality, and probative value, of evidence; it does not impact on the legal principles to be applied.
Once the paper-title boundary is established, this should be the end of the matter. However, it frequently is not. Those involved in boundary disputes must be wise to the principles of adverse possession.
In respect of unregistered land, a “squatter” may have acquired title to their neighbour’s land (so as to “move” the paper-title boundary line) if they have been in exclusive possession of the land for 12 years. Even in respect of the more prescriptive rules for registered land, the third condition to paragraph 5 of Schedule 6 to the LRA 2002 permits adverse possession of land if a neighbour has been in possession, for at least ten years, of land adjoining a general boundary and the squatter “reasonably believed” that they owned the land over that time.
What is meant by “reasonable belief” has been subject to two Court of Appeal decisions: Zarb v Parry  EWCA Civ 1306 and IAM Group Plc v Chowdrey  EWCA Civ 505, which make it clear that the mere fact that a neighbour has challenged the position of the boundary will not of itself render the squatter’s belief unreasonable, or defeat a claim for adverse possession.
Assuming that the neighbours cannot reach a resolution, and the matter progresses to court, a judge will apply the law and reach a decision on the boundary line. The judge will, in many instances, need to grapple with adverse possession of the land. However, that does not mean that the court will necessarily grant the remedy that one side, or the other, wants.
Firstly, the parties may find that the judge prefers a boundary line which neither side put forward: one which might involve both sides “losing out”, and potentially being ordered to remove encroaching structures from either side of the declared boundary line.
Secondly, even if the trespasser has constructed a structure over the boundary line, there is no guarantee that the aggrieved party will be granted the injunction they seek for its demolition. The little known Court of Appeal case of Harrow LBC v Donohue  1 EGLR 257 provides that courts cannot refuse an injunction where a claimant has been dispossessed of land to which he or she has title (the ratio seemingly on the basis that it would be unacceptable to sanction the expropriation of the claimant’s land).
Harrow was doubted (but ultimately distinguished) in the High Court case of Site Developments (Ferndown) Ltd v Barratt Homes Ltd  EWHC 415, and it is suggested that the ratio cannot now survive the Supreme Court case of Coventry v Lawrence  UKSC 50, which restated the law on damages in lieu of injunctive relief.
Indeed, the recent Court of Appeal case of Rashid v Sharif  EWCA Civ 377 overturned an order granting a mandatory injunction and substituted it for damages in lieu in respect of a modest trespass.
These recent cases show that judges are not obligated, in boundary disputes, to order the removal of any encroachments and could merely award damages in lieu. This may well amount to a pyrrhic victory for the “winning” neighbour.
Of course, by the time parties reach court, the trial is often more about costs than recovery of the land itself. Again, the court retains a general discretion on costs under rule 44.2 of the Civil Procedure Rules. It is by no means unheard of for a judge to disallow costs of a “successful” party in a neighbour dispute who has exaggerated or inflated the importance of the claim (or even order the winning party to pay the other side’s costs). It is common for a judge to say “a plague on both your houses” and make no order as to costs.
As always, “without prejudice save as to costs” offers, compliance with pre-action protocols, and an early offer to mediate will always stand a party in good stead in a boundary case.
As can be seen, boundary disputes are fraught with difficulties and, in the majority of cases, litigation costs will dwarf the value of the land itself. There have been calls, for a number of years, for a more refined and cost-effective process of determining boundary disputes, or at least narrowing the issues before they find their way to court.
RICS has long been at the forefront of efforts to promote alternative dispute resolution for property disputes. It is understood that later this year, RICS, in conjunction with the PLA, will launch a joint ADR service for boundary disputes. As with most forms of ADR, use of the process will be voluntary and there is currently no means to force parties to seek resolution of their boundary disputes outside of court.
The Property Boundaries (Resolution of Disputes) Bill seeks to alter this. This is a private members bill which has been making its way slowly through Parliament since 2015. This Bill provides for the mandatory expert determination of boundary disputes by a surveyor before the commencement of any court proceedings (much like the Party Wall etc. Act 1996), and is intended to provide a quicker and cheaper alternative for the resolution of boundary disputes. Unfortunately, with the prorogation of Parliament in 2019, the passage of this Bill was halted.
On 15 January 2020, the Bill was re-introduced. Time will tell whether this long-running Bill will make its way onto the statute books.
This article was first published in the Thomson Reuters Practical Law Property Column.
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