Boundary disputes can be very expensive, but that needn’t be the case. Property litigation solicitor David Paull looks at strategies for keeping legal costs to a minimum when dealing with a boundary dispute and suggests how to protect yourself against the risk of a costs order being made against you.
Boundary disputes can be expensive to take to court and very often the legal costs will be disproportionate to the value of the land in dispute.
This problem was recently highlighted by a court case where a home owner, who had lost a claim that a neighbour’s extension trespassed by a matter of inches on their land, was then presented with a legal bill for the successful party’s costs of over £100,000. This resulted in the losing party having to sell their £600,000 home to pay the costs.
The fear of legal costs puts many people off pursuing their case altogether, but there are a number of strategies that can be used to resolve a boundary dispute in a much faster and more cost effective way.
First, we would recommend that informal discussions to take place between the neighbours; with or without the assistance of solicitors. This might result in one party accepting the other party’s views on the boundary. Alternatively the neighbours could reach a compromise and agree a new location for the boundary in dispute.
Once any boundary has been agreed it should be demarked with a permanent structure. A written boundary agreement could be also entered into if appropriate. If any land is transferred as a result of the boundary agreement then it should be promptly registered against the respective titles at the Land Registry.
If informal discussions are not productive then the parties should consider following the Boundary Disputes Protocol – http://www.propertyprotocols.co.uk/the-boundary-disputes-protocol which provides a framework for resolving a boundary dispute outside the normal court system.
Specialist legal advice and input from a surveyor will normally be helpful. The parties can then engage in Alternative Dispute Resolution (“ADR”) with the benefit of advice on their respective positions regarding the location of the disputed boundary.
ADR can be pursued in a number of ways:
- through a “without prejudice” meeting on site,
- arbitration by a lawyer or surveyor,
- expert determination by an independent third party such as a lawyer or surveyor, or
- mediation with an independent mediator.
Because anything discussed at a “without prejudice” meeting cannot be used in any subsequent court proceedings it means the parties are able to negotiate openly and freely.
Each form of ADR has its own advantages and disadvantages and we are happy to discuss the options with you to determine which is likely to be most suitable.
ADR has a good track record of promoting out of court settlements and it generally leads to a quicker and more cost effective resolution of a boundary dispute than would be the case if court proceedings were pursued.
In a separate but related development, Parliament is currently (April 2018) looking at bringing an end to determining boundary disputes through the courts. The Property Boundaries (Resolution of Disputes) Bill 2016 is in the early stages of the legislative process. The Bill provides for the disputed boundary to be determined by a surveyor appointed for that purpose, with any appeal to be made to the High Court within 28 days. It remains to be seen if the Bill will become law in its current form but its introduction reflects a general view that boundary disputes should be kept out of court. This makes the use of ADR highly advisable. Indeed, anyone who refuses to embrace ADR could well find themselves facing a hostile reception in the courts, where judges have the power to make punitive costs orders against parties who they feel have behaved unreasonably.
Offering to engage in ADR can therefore be a very good way of protecting yourself against the risk of a costs order being made against you in the event that your opponent insists on court action. Again we will be happy to consider the circumstances of your boundary dispute and advise you on strategies for reducing the costs risks you face.