November 2018

For the neighbours involved, boundary disputes can be expensive and stressful. To try and make the process easier, the Property Litigation Association has published a ‘Protocol for Disputes between Neighbours about the Location of their Boundary’, known as the ‘Boundary Disputes Protocol’.

The Protocol applies to both residential and commercial properties. It aims to encourage neighbours to exchange information in a timely manner, minimising the potential for dispute, saving time, and keeping costs to a minimum.

The Protocol is currently voluntary, although we suspect it will become a formal pre-action protocol under CPR in due course.In the meantime Judges will no doubt be critical of parties who don’t engage with it. 

As soon as a boundary dispute arises, parties can agree to adopt the Protocol.

The date in which this has been agreed is known as the ‘Start Date’.

2 weeks from the Start Date, the parties must provide each other with official copies of the Land Registry title(s) for their own property and seek to agree whether any determined boundary exists. If there is, no further action will be required. 

If there is no resolution from exchanging the official copies, the parties should exchange all of the information they have in their possession within 4 weeks from the Start Date, including: 

  • Past conveyances;
  • Conveyances referred to in the official copies; and
  • Photographs of each property showing the disputed boundary
Within 7 weeks from the Start Date, the parties need to determine whether they have the first conveyance (when the properties were split from a larger title and passed into separate ownership). If they do not have this, they should discuss their options for finding the first conveyance. The parties should then seek to agree one of the following options:
  • An adverse possession/ boundary agreement claim is made; or
  • To proceed to investigate the paper title position, the adverse possession claim/ boundary agreement or both. 

Within 8 weeks from the Start Date the parties should discuss whether they wish to enter into negotiations or mediation or proceed with the next steps of the protocol. 

If a first conveyance has been identified(this is often not the case in our experience),then each party must determine the evidence they have in terms of showing what features existed on the ground at the date when the first conveyance occurred. In addition, any proposed witnesses of fact need to be identified within 3 weeks of the first conveyance being identified. 

If the first conveyance provides accurate plans and the parties cannot reach an agreement, a an expert surveyor will need to be instructed. They may visit the property and produce a plan of the physical features existing on the ground at the date of inspection. In some instances, a joint expert may be appropriate for this. However, in certain cases (such as those involving development proposals) it may be appropriate for each party to instruct their own expert. Instructions should be given within 5 weeks of the date when the first conveyance is identified. Short reports should be exchanged within 4 weeks after instructions are provided. Following this, within 2 weeks the experts should have a discussion in order to agree a short summary, to be provided to both parties. 

Within 4 weeks of the Start Date if either party believes that they may have a claim for adverse possession, they must inform the other party, setting out the basis of their claim and the following information: 

  • Description or plan of the area claiming to be in their possession;
  • The period during which it is claimed that the land has been in possession; and
  • Whether the claim is an “old-style” claim or “new-style” claim 

If the other party wishes to oppose the claim, they must provide an explanation for the opposition within 6 weeks of the Start Date. 

Within 14 weeks of the Start Date each party should provide the other party with all relevant documentary evidence and also identify their witnesses of fact will be. Documentary evidence may include: 

  • Photographs (including aerial photographs); and
  • Receipts for work carried out to the boundary. 

Where the interpretation of plans or photographs is not agreed it may be necessary to instruct an expert, which should be done within 16 weeks of the Start Date. The experts or experts should provide a report within 4 weeks of their appointment; once reports are exchanged, both experts should have a discussion within 2 weeks to provide a short summary to both parties. 

The parties should meet again within 2 weeks of the date on which the last steps set out above is taken. Ideally, the meeting should take place at the location of the disputed boundary with the expert(s). The discussions should be carried out “without prejudice” so they cannot be relied upon should legal proceedings arise. 

If the parties are unable to reach an agreement, they may consider alternative dispute resolution before proceeding with litigation. Alternative options include:

  • Arbitration;
  • Expert determination by an independent third party; or
  • Mediation 

If the parties reach an agreement with reference to a line on the ground, the line needs to be marked out by stakes. It is also important to mark the side of the stake on which the boundary lies. If the parties reach an agreement by reference to a plan, experts should be instructed to transfer the line on the plan onto the ground and place stakes to clearly outline the boundary. 

A written document setting out what has been agreed will need to be drafted, ideally by a solicitor, with a plan attached. Each party should then apply to the Land Registry to record the agreement against their titles. 

 

 2018 49 07 158
The recent case of Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch) has provided clarity for landowners suffering from repeat trespass on their property, have no idea who the trespassers are and fear further trespass.

The Claimant was the owner of the former Tetley Brewery site in Leeds. There had been a series of incidents of trespass between 2011 and 2018. On the most recent occasion in 2018, the trespassers triggered alarms and held a number of illegal raves in empty buildings on the site. The Claimant spent £25,000 cleaning up the mess.

Given the risk of fly-tipping (well known with such sites) as well as further illegal raves, the Claimant wanted to take steps to take decisive steps to prevent further trespass. Despite having fenced the site, installing alarms and paying for a weekly security patrol, determined trespassers were still gaining access. The Claimant applied for an injunction against unknown future trespassers so that they could call upon High Court Enforcement Officers and, if necessary, the police to quickly remove trespassers should there be a any further trespass.

It is not unusual not to know the identity of trespassers. The CPR provides for 3 scenarios where an unknown persons or persons could become a party in trespass proceedings:
  • Where a particular person was identified (e.g. in a photograph) but their name is not known.
  • Where a person was part of a fluctuating class or group or persons some of which were known.
  • Where the identity of the Defendant is defined by a likely prospective acts of infringement of the order the court is being invited to make
The Tetley Brewery case fell within the final category, the prospective acts including further illegal raves and fly-tipping.

The court gave useful guidance as what is required to obtain such an injunction and applied a two stage test:
  1. Is there a strong probability that, unless restrained by an injunctions, the Defendant will act on breach of the Claimant's right?
  2. If the Defendant has acted in breach of the Claimant's rights, whether the harm would be so grave that damages are no an adequate remedy
The test was made and the court granted the injunction taking into account the following;
  • The steps taken by the Claimant to secure the land
  • The brazen attitude of the trespasser and anticipated future trespassers
  • That there had been incidents of trespass of 2011, 2016, 2017, 2018
  • The timeframe between the application and the threatened further trespass
  • The risk to the lives of the trespassers given the unsafe site
  • The cost to the Claimant of removing the trespassers
The case shows that the courts will be very open to granting broad and extensive injunctions binding unknown future trespassers. This is good news for landowners.
  2018 26 07 158
A multi-disciplinary team of lawyers at law firm Legal Studio, led by property litigation specialist Matt Pugh and supported by leading silk Tim Ward QC of Monckton Chambers and the highly rated junior Andy Creer of Hardwicke, recently acted for Red & White Services Ltd  in the widely reported case Red and White Services Ltd v Phil Anslow Ltd and Anor [2018] EWHC 1699 (Ch).  

The case concerned a dispute over the use of bus bays at Cwmbran Bus Station, which has since been resolved, and involved complex and novel issues of competition law and property law.

The reported decision concerns the setting of cost budgets by Mr Justice Birss at a Costs and Case Management Conference in May 2018.  Directions had been agreed between the parties prior to the CCMC, but the issue of costs budgets was contentious.  The case was expected to involve complex expert evidence from economists, extensive disclosure, a substantial number of witnesses and a 10-day trial.  The Defendant’s budget totalled £288,000 including £103,000 of incurred costs, whereas the Claimants and the Third Party’s budgets were around £1.5m each, with the Claimant’s incurred costs around £100,000 and the Third Party’s around £350,000.  

Mr Justice’s Birss’ approach to budgets was somewhat unusual.  Rather than going through the budgets phase by phase (or indeed in any detail), he simply looked at the totals and took the view that both the Claimant’s budget and the Third Party’s budget totals were disproportionately high when compared to the subject matter of the dispute.  He also commented that the Defendant’s budget was unrealistically low and not a good guide but declined to comment as to whether that the Defendant had intentionally pitched its budget low as a tactic.  We submitted that they had.

In approaching proportionality, instead of setting phase totals, Birss J decided to allow the Claimant and the Third Party to spent up to a further £800,000 each and to allow those parties the flexibility as to whether they sought to cut costs on disclosure, expert evidence, witness evidence, the trial or a combination of those phases.  This may have been because at the time of the CCMC it would have been very difficult for the judge to make an informed decision as to whether, for example, an AI platform was required for e-disclosure.
  2018 45 06 158