A person’s home is their castle and one which will be defended fearlessly. It therefore tends to follow that a homeowner will pretty much do anything to protect their home, and their rights to use and enjoy it, no matter what the cost.
For example, boundary or right of way disputes between neighbours relating to residential properties normally involve two parties who will want to “win” at any cost, even if the intrinsic size or value of the land being argued about is relatively small.
Unfortunately, this desire to protect what is perceived as yours regardless of what rights someone else may allege, nearly always means that the parties to a boundary or right of way dispute have suffered a history of bad blood between them, with seemingly immovable battle lines being drawn in the sand from a very early stage and long before formal legal steps are finally taken. As such, cases almost inevitably end up at court, often when they probably didn’t need to, simply because the parties involved are not prepared to agree the matter between themselves. Ultimately this will lead to a third party imposing a decision, generally being a trial judge, notwithstanding how costly and time consuming such an option is.
In an attempt to help neighbours resolve these types of dispute without the need to go to court, Parliament has put forward the Property Boundaries (Resolution Dispute) Bill 2016, now at Committee Stage in the House of Lords. This Bill is reflective of the well-established Party Wall etc. Act 1996, and proposes to put in place a process through which neighbours in dispute can seek resolution through a third party, without the need to become embroiled in expensive court proceedings.
Basics of the proposed new compulsory expert determination process are:
- Where an owner of freehold land wishes to establish the position of a boundary, or private right of way, he should serve on the adjoining owner a notice, accompanied by a plan;
- If the adjoining freehold owner does not consent to the line of the boundary as shown, then a dispute is deemed to have arisen;
- Alternatively, and if a claim or application relating to a boundary, or private right of way dispute has already been issued at court or made to the Registrar of HM Land Registry, all claims and proceedings will be stayed automatically so that they can be determined in accordance with the new statutory process;
- Once a dispute can be said to have arisen, either because a notice has been served but not consented to or because a claim or application is already on-going, both parties shall either select one agreed surveyor or each party will select their own surveyor, and these two surveyors will then jointly select a third surveyor;
- The single surveyor (or all three surveyors or two of the three surveyors) will then determine the dispute, which will normally include them visiting / inspecting the land in question and consider the plans, and any other relevant position papers. They will set out their decision in a written Award, which can also determine who should pay the costs of the dispute;
- The Award will be conclusive and can only be challenged if an appeal is made against the findings within 28 days to the High Court; and
- In the absence of an appeal, within 28 days after the expiry of the appeal period, the owner of the freehold land who instigated the process is required to submit the award to HM Land Registry so that it can be noted on both titles of the affected land.
This proposed new process may allow parties to boundary, or right of way disputes, to quickly and cheaply obtain an independent decision as to who is right or wrong (so avoiding the need for issuing expensive court proceedings to get the very same thing) and almost sounds too good to be true.
However, there do appear to be some potential limitations with the proposed process such as the experience of the surveyor(s) and their understanding of relevant case-law relating to boundary or right of way disputes. Also, will surveyor(s), as they are trained to do, focus their primary attention on the lines on plans and measurements on the ground, to the exclusion of potentially relevant witness evidence from those actually involved in the dispute?
There is also the risk that if a party decides to appeal the Award to the High Court, it could end up being more costly than seeking to resolve the dispute under the current regime because the parties will already have incurred the costs of following the new compulsory process.
In any event, if anyone becomes involved in a boundary or right of way dispute with a neighbour, the very first thing that they should do is to instruct a good firm of solicitors to assist and advise them. Obtaining objective legal advice as soon as possible can sometimes help a party to avoid wasting time and money on a dispute that generally isn’t worth either.
Also, and once solicitors are involved, they can help to make sure that before doing anything, a party to a boundary or right of way dispute with a neighbour properly considers all of their options for seeking to resolve their dispute.
It is also unclear, at the time of writing, how the proposed process will impact on or interact with the current trend towards using mediation to resolve boundary or right of way disputes but whether you are King, Queen or Court Jester, you will want to consider all options available to you for protecting your castle.
Lee Stafford, Partner in the Litigation Team at Bishop & Sewell