Boundary disputes: Evidence – The pitfalls and practicalities

Boundary disputes are rarely cost effective and the courts often make orders that make them disproportionately costly for the winner as well as the loser. Two recent cases demonstrate that risk and the importance of fully exploring and considering the available and/or potential evidence as early as possible. 

Rashid v Sharif

The physical boundary in Rashid v Sharif [2014] EWCA Civ 377 was originally a wooden fence which was replaced with a low brick wall. Whether that wall was built on the boundary line or to one side of it, became a key issue in the case. The claimant subsequently built a shed in front of the wall and a five foot breeze block wall at the side of that shed.The result was that it was no longer possible for the claimant to gain access to the brick wall. The defendant subsequently constructed a shed at the end of its garden.

The claimant alleged the defendant’s shed trespassed on his land. The claimant’s pleaded case was that the brick wall was constructed entirely within the claimant’s land. The defendant alleged that the boundary ran along the outside wall of their shed.

During the course of the trial the claimant was allowed onto the defendant’s property to remove some plaster and bricks along the claimant’s shed. The photographs taken on that visit showed that the rear wall of the defendant’s shed was built on top of the old brick wall.The evidence at trial included an old witness statement provided by the claimant’s predecessor in title who built the brick wall. That witness statement was fairly short and stated in simple terms that he replaced the original wooden fence with a “brick wall in line with the wooden fence…”

The Judge at first instance accepted the evidence in the witness statement and found that the legal boundary line was along the centre line of the brick wall. A claim that the defendant’s work was agreed by the claimant was rejected. Ultimately the Court of Appeal concluded the defendant having built on a party wall and, having not complied with the Party Wall etc Act had trespassed. However, the trespass was only to a small extent compared with that suggested by the claimant. The outcome was limited success on the claim (limited to damages in lieu, an injunction having been refused), the dismissal of the counterclaim and the appeal. The Court of Appeal overturned an order that the defendant pay two-thirds of the claimant’s costs.The Court of Appeal dismissed all claims for costs so that each party bore the burden of their own costs of the trial and the appeal. The Court of Appeal specifically noted the way in which both parties’ cases had significantly changed during the course of the case.

Had the parties seen the location of the defendant’s shed and considered carefully the effect of the actual wording of witness statement about the location of the brick wall, it is to be hoped they would have found a more proportionate way through the trial and trip to the Court of Appeal. 

Underwood v Mayer

The area in dispute in Underwood v Mayer [2014] EWCA Civ 406 was a wedge shape of land with a maximum width of 3 feet. The land ran along the front two thirds of the boundary between the two parties’ properties. The claimant served a further witness statement one day before the trial. The witness statement was from a member of the family that had owned the estate which had included both of the properties. He gave evidence about the division of the properties and the stepping in of the line of the boundary to accommodate an elm tree at the front of the boundary. The trial judge found that witness to be reliable, honest and accurate.

The defendant appealed and sought permission to rely on fresh evidence. Following the trial the defendant had searched for and found historic aerial photographs which it argued showed there was no elm tree.The claimant then obtained further witness statements indicating that by the time of the photographs the elm tree had been cut down to a substantial stump.The Court of Appeal allowed the fresh evidence produced by both parties. It then allowed the defendant’s appeal in part and remitted the matter to the County Court for retrial on the basis it could not determine the matter as the fresh evidence needed to be tested.

The parties had spent £49,000 and £16,600 on the appeal alone.The case had also involved a drainage issue which was unsuccessfully appealed by the defendant. The claimant was awarded only £26,250 of his appeal costs. The costs of the first trial were reserved to the trial judge on the remitted trial.

Again, had the parties located all the evidence at an early stage, even if they could not settle the matter, the parties would have been facing the cost of one trial rather than two trials and the trip to the Court of Appeal. 

Lessons learnt

Both cases are unhappy tales. In each, the parties made their discussion to litigate through to trial without having identified the key elements of their case and evidence, or the strengths and weaknesses of their own and the other side’s.

Fully exploring the available/potential evidence will ordinarily mean obtaining and considering:

• The deeds of the properties both sides of the boundary.
• OS surveys around the time the boundary was created and any other period when changes were made or that might otherwise be relevant.
• Aerial photographs for any relevant period including the time any changes are believed to have taken place.
• Identification of the remaining physical evidence of all current and past boundary features.
• Any historic statutory declarations that relate to the properties or the boundary.
• The information the current and previous owners or neighbours can provide.

Whilst a full investigation of all those sources of evidence will not be cheap, these two cases demonstrate that proceeding to trial without that full investigation can be a false economy in litigation where there is already the risk the Court takes the “plague on both your houses” approach to costs.