Is the law governing boundary disputes about to change?
Boundary disputes are a bit like “The ‘X’ Factor”. Emotionally draining for all parties involved, they take a long time to resolve and when the winner is finally announced, most people aren’t that thrilled with the outcome. In fact, sometimes even the winner often wonders whether the whole business was really worth the effort.
Everybody needs good neighbours…
Getting involved in a dispute with your neighbours is not a decision to be taken lightly. Quite apart from the inevitable deterioration in relations, litigating a boundary dispute usually requires a detailed review of the historic title documents (which are often unclear and not definitive), a site investigation (to determine whether there is or was anything on the ground which might assist in determining the boundary line), photographic and witness evidence as well as a report from a surveyor.
The adversarial nature of litigation and the accruing liability for costs can lead the parties to become more entrenched in their positions. The longer the case goes on, the more the parties are keen to “have their day in Court”, making settlement (via mediation or otherwise) nigh on impossible.
Where boundary disputes have made it to a final hearing, the Judges are often astonished, unimpressed or downright depressed that the case has got that far, particularly as the land fought over might only be a few centimetres wide. In one case, the Judge commented that “a party can litigate over a tiny strip of land, although I would certainly agree that it is usually economic madness to do so, but a person remains entitled in law to protect and preserve that which is his or hers”.
But is this all about to change?
The Property Boundaries (Resolution of Disputes) Bill, a private members’ bill, is making its way through the House of Lords, having had its first reading (in this form) in the Lords in July. The Bill’s aims include a desire to speed up the resolution process, reduce parties’ costs and free up Court time. The Bill seeks to completely change the approach to boundary disputes (and to certain disputes relating to the extent or location of a private right of way) by introducing a compulsory expert determination procedure.
Where the owner of land wants to establish an exact boundary line (or the location or extent of a private right of way), he or she must serve notice on the adjoining landowner. If the adjoining landowner objects or fails to respond within the timescale, then a dispute is deemed to have arisen. Like the Party Wall Act 1996, on which the procedure is modelled, the Bill then provides for a mandatory expert determination – a surveyor will be appointed to determine the dispute. If either party is unsatisfied with the determination, they may appeal to the High Court within 28 days.
On its face, the proposals contained in the Bill seem like a sensible attempt to simplify boundary disputes and reduce cost, by taking the procedure out of the hands of the parties and into the hands of expert surveyors. It is an attempt to introduce a ‘one size fits all’ approach and pre-supposes that there will be no legal issues to resolve during the course of the dispute. Although the current system has its faults, we are yet to be persuaded that a mandatory expert determination is appropriate in every instance. If nothing else, the Bill may discourage parties from escalating the dispute in the first place.
The Bill is due to be debated although a date has not yet been set – let’s see what the Lords make of it!