A boundary dispute often includes two parties fighting over a small strip of land, where neither party changes its standpoint and legal costs quickly increase due to their unwillingness to use ADR. When establishing a boundary, complex questions arise such as:
- Is the boundary marked by a physical feature?
- Is the boundary defined in legal documents?
- Is the physical boundary followed exactly the same as the legal boundary?
- Is there an agreement between the owners, a statute or legal presumption that defines the boundary?
These disputes can be notoriously complex and the final outcome can be uncertain. But there must be some other way to resolve this efficiently.
Now, there is.
A new Boundary Disputes Protocol has been created by the Property Litigation Association. The Protocol applies to both commercial and residential property within England and Wales and assumes that informal discussions have failed, and a more structured resolution is required. It is a FREE resource online for parties alongside relevant guidance.
What does the Protocol do?
There are a number of time limits and processes that the Protocol implements for parties in order to exchange information and resolve the dispute efficiently and consensually. Failure to comply with the Protocol could result in costs being awarded at court against the non-complying party.
What does the Protocol say?
1. When a dispute arises, neither party should interfere with the boundary or the disputed land, until the dispute is resolved.
2. Neither party should do anything which may impair the relationship between the parties or increase costs unnecessarily.
3. Both parties should agree to use the Boundary Dispute Protocol.
4. The First Conveyance should be interpreted to determine the location of the boundary. The words used, and the physical features referred to on the First Conveyance can assist the dispute. In some circumstances, subsequent conduct and services could be relevant.
5. Each party must consider the evidence that they can use. They must exchange documentary evidence they have, identify proposed witnesses and what they will say.
6. When appropriate, a joint expert should be instructed. If separate experts are justified, the experts need to write reports, meet up, identify the issues in dispute and set a strict timetable.
7. There should be an on-site meeting with the parties in dispute and any surveyors that have been instructed. An agreement on what the issues are needs to be made.
8. Any agreement reached must be set out in a written document and state clearly what has been agreed or what is required. It may refer to physical features on the ground. This will prevent future disputes. For certainty, it is wise to ask a lawyer to draw up this agreement.
9. Each party should apply to the Land Registry to note the agreement against their titles.
Following this Protocol will help you solve a dispute earlier, avoid unnecessary costs and can preserve a relationship between neighbours. We therefore suggest that you seriously consider the Protocol before pursuing litigation.
The easy to read Protocol can be found here.