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.