The Ultimate Guide to Law and Best Practices to Tackle Boundary Disputes

The ‘Land Registry’ provides the general outline of a property instead of defining the extent of its boundaries and the boundary disputes arise from the imprecise marking and recording of land registration. The following scenarios may cause boundary dispute amongst neighbours.

• Refurbishment/renovation of the property
• Extension of the basement/upper/ground floor
• Addition of fence/plant-tubs/hedges/garden-chattels
• Children damaging a neighbour’s property whilst playing
• Pets making the neighbouring property filthy

What is Boundary Dispute Protocol?

This is a non-binding pre-action protocol which has been developed by the leading legal practitioners in the field. The ‘Boundary Dispute’ protocol has no status in law, unlike the CPR pre-action protocols. However, this protocol is used as the ‘best practice’ guide for the quick resolution of a dispute.

The Necessity of Hiring a Specialist Surveyor

Many boundary disputes result from incorrect boundary surveys. Hence, it is prudent to hire a specialist boundary surveyor. You can avoid any dispute over the boundary of your property if you retain the service of an experienced surveyor at the initial stage of the boundary survey.

A specialist knows to save the boundary plan in electronic format, as it can be used to make multiple copies in the future. You may even hire a chartered ‘land surveyor’ in some scenarios. A ‘title plan’ of subpar quality may fail to correctly elucidate the position of the boundary on the ground and may cause confusion and lead to encroachment of the adjoining property.

Myths, Speculations & Facts

There are many misconceptions and speculations regarding the boundary line amongst the property-owners. For example,

• A property-owner owns the left-hand/right-hand fence that is facing the house.
• A T-mark on the Land Registry Title plan shows that a property-owner owns the fence.
• The Land Registry Title plan allows a property-owner to scale up to confirm measurements.

These misconceptions have no basis in law. Therefore, you do not own the left-hand/right-hand fence that is facing your house. You also cannot scale up from the Land Registry Title plan to show that the boundary fence is placed at the ‘wrong position’. The following points can clarify why this is a mistake to scale up from the ‘Land Registry’ Title plan.

• Title plans cannot precisely establish the legal boundaries of the properties. However, a property owner may apply for “determined boundary” in order to have a recorded boundary between two properties.
• The Land Registry Title Plans are developed using ordnance survey maps. These maps are supposed to show ‘general boundaries’ according to Section-60 of Land Registration Act 2002. Therefore, the exact line of boundary cannot be determined by Title plan irrespective of what is delineated.
• It is important to remember that the thickness of a boundary line approximates to only 0.3-m on the ground in accordance with the delineation on the Title plan.

Hence, it is imprudent to rely upon the Land Registry Title plans when determining the boundary between two properties.

The ‘T’ mark is a common marking on Title plans pertaining to the boundaries between properties. An entry in the Title plan referring to the T-mark is a statement pertaining to the ownership of a boundary structure along with the liability for its maintenance and repair. However, a T-mark does not raise the presumption of ownership in contrary to the popular belief.

• This mark may establish the ownership of a boundary feature.
• It is one of the admissible factors that can be used by an individual to understand the ownership of boundary features.
• It may recognise the ‘subject matter’ of an express repairing covenant. However, it does not clarify the ownership of this feature.
• It does not clarify which landowner has the ownership of boundary feature.

Some presumptions regarding the boundary line may be accepted by law. For example,

• Hedge-and-Ditch Rule

The land of adjoining owners may be separated by a ditch alongside a hedge. In this scenario, the hedge and ditch are presumed to belong to the landowner whose property is on the same side as the hedge.

• Land Abutting a Highway or Natural Non-Tidal River

The land abutting a highway or natural non-tidal river expands to the middle of the road.

• Fence Panels Facing Away

A landowner has ownership of the fence if the fence-panels face away from the house.

It is important to remember that these are ‘rebuttable presumptions’ and are accepted in the absence of any proof to the contrary. Hence, the presumptions provide no definitive answer in most scenarios.

Law Pertaining to Boundary Disputes

In property law, conveyance refers to the transfer of a property’s legal title from one person to another or from an owner to the lessee. It also refers to the granting of mortgage or lien. The primary task of the court is to determine the boundary line at the earliest date of conveyance. The court needs to follow various principles when analysing the conveyance.

The subjective beliefs of both parties (adjoining owners) regarding the position of the boundary are not admissible in the court. The court is going to consider what a judicious individual with factual and relevant background knowledge would have considered as the boundary.

In some scenarios, the topographical features of the land at the date of conveyance help in determining the position of the boundary. The conveyance plan is used in order to identify the features at the date of conveyance and these features can be used to determine the boundary.

It is important to remember that the court can easily understand the boundary features of a property that was recently built. However, it may be difficult for the court to determine the boundary features of an old property.

Adverse Possession

In some scenarios, boundary disputes may not be resolved by establishing the paper-title boundary. For example, it may become necessary to remember the principles of adverse possession. It is the occupation of a land by an individual who is not legally entitled to the property. Therefore, a squatter may have the legal ownership of a land if the adverse possession continues for a period of time (limitation period) as specified by the law. In this scenario, a squatter need not pay any compensation to have ownership of the land.

It is important to remember that the ‘adverse possession’ has to remain unopposed within the limitation period. The 3^rd condition to Paragraph-5 of Schedule-6 to the LRA 2002 specifies that a neighbour may own a piece of land adjoining the general boundary in the following scenarios.

• Neighbour (squatter) has been in possession of this piece of land for at least 10 years
• Neighbour (squatter) reasonably believed that this piece of land belonged to them.

It is important to remember that an adjoining property-owner cannot render a squatter’s belief unreasonable or overthrow a claim for ‘adverse possession’ by simply challenging the position of the boundary.

Relief of Boundary Disputes

If the neighbours cannot resolve the dispute over a boundary, then it results in a lawsuit. In this scenario, the judge will reach a decision with regards to the boundary line using the law. A judge may even have to deal with the ‘adverse possession’ of land in some scenarios. The court may or may not grant the remedy according to the demands of either of the parties.

• A judge may favour a boundary line which has been suggested by neither party and both parties may lose a portion of the disputed land in this scenario. A judge may even order one party or both parties to remove encroaching structures from the declared line of the boundary.
• One neighbour may build a structure over the boundary line which may encroach upon the adjoining property. In this scenario, the aggrieved party may ask for the removal or demolition of this structure. However, there is no guarantee that an injunction will be granted to the claimant. There have been some instances in the past where a claimant was deprived of a piece of land despite having title to the property.

Therefore, a judge may or may not order the removal of encroachments from the property upon the request of one landowner. However, a claimant may recover damages for the encroachment.

Costs of Proceedings – Boundary Dispute Trial

In most scenarios, the Boundary Dispute trial is about recovering the costs instead of recovering the disputed land. However, Part 44.2 of Civil Procedure Rules specifies the court’s discretion as to the costs of proceedings along with other factors that may influence a judge’s decision.

1. The court has the discretion to determine,
   1. Whether one party has to pay the costs to another party
   2. The amount of costs
   3. The time to pay the costs
2. If the court determines to make an order regarding the costs –
   1. In general, the unsuccessful party is ordered to pay the costs of the successful party.
   2. The court has the power to make a different order.
3. The general rule is not applicable to a few proceedings.
4. The court will take various matters into consideration when deciding how to make the order (if any) about the costs
   1. Conduct of both parties
   2. Whether one party has succeeded on part of the case
   3. Any admissible offer which has been made by any party to settle a dispute over a boundary
5. Conduct of both parties before and during the court proceedings
   1. Whether both parties followed the Practice Direction
   2. Whether it was reasonable for a party to raise/pursue/contest an issue or allegation
   3. The manner in which a particular issue/allegation is pursued/defended by a party
   4. Whether a claimant has exaggerated a part of the claim or entire claim

It is not uncommon for a judge to pass the following rulings.

• A successful party may be disallowed to recover the costs if a judge finds out that the importance of a claim was exaggerated. In this scenario, the successful party may be ordered to pay the costs to another party. However, this entirely depends upon a judge’s discretion.
• A judge may even make no order with regards to the costs and both parties may end up recovering no money.

Thus, maintaining compliance with the pre-action protocols and making an early offer for the conciliation of the dispute will be of advantage to a landowner during a trial resulting from boundary dispute.

Law Reform

In many scenarios, the costs of litigation resulting from the boundary disputes become higher than the value of the land. Therefore, the government has been trying to promote the alternate methods of resolving property disputes and RICS has been at the forefront of this effort. The main objective of finding alternative dispute resolution method is to

• Have a cost-effective and less complex process to resolve the boundary disputes
• Mitigate the issues before a boundary dispute leads to a trial

RICS is supposed to launch an ADR (Alternative Dispute Resolution) service jointly with the PLA later this year. The landowners are allowed to voluntarily use the ADR process to date, and they cannot be compelled to resolve the boundary disputes outside of the court. However, the Property Boundaries (Resolution of Disputes) Bill is supposed to bring a change. It may become mandatory to resolve the boundary disputes with the assistance of a specialist boundary surveyor before starting the court proceedings.

The Property Boundaries (Resolution of Disputes) Bill is also supposed to provide an economic alternative for the resolution of the boundary dispute. This is going to add speed to the resolution process. The passage of this bill was halted due to the prorogation of Parliament in 2019. It was reintroduced on the 15^th of January in 2020 and is likely to make its way onto the statute books.