Senior associate solicitor Jonathan Dinsdale, in law firm Blandy & Blandy’s Dispute Resolution team explains how factors including homeworking have led to an increase in boundary disputes between property owners or tenants and what to do next.
Boundary disputes are becoming increasingly common in England and Wales, with more homeowners spending time working remotely following the pandemic. Such disputes have a tendency to affect good neighbourly relations and can lead to homeowners spending significant sums on legal and surveying fees which are entirely disproportionate to the value of the land itself.
Occasionally, encroachments on to neighbour’s property are significant, but more often than not, they involve small portions of land which do not have any discernible impact on an owners use or enjoyment of their property.
Even if the parties have their day in Court, frequently the decision given by the Judge is disappointing to both parties and it can have serious consequences over the ownership of the boundary features. Notwithstanding this, sometimes owners have no choice but to take action over their neighbour’s encroachment over what may already be a small garden, or which may prevent the homeowner from extending their property. Even a few centimetres may render a side access way unusable or lead to damage to the neighbouring property.
In the first instance, before engaging lawyers and surveyors, it is always recommended to attempt to discuss the matter directly with your neighbour as this can often lead to a mutually agreeable resolution.
If this approach does yield results, then the next step is to seek advice from a solicitor and a boundary surveyor. Your solicitor will be able to advise you in relation to your proprietary rights as regards the mutual boundary and give an initial view on liability and potential damages for trespass.
The role of the boundary surveyor is to take an objective and impartial approach to where the true boundary lies and present their opinion in a report. Once the surveyor’s report is received, it can be used to corroborate your position in relation to the boundary and persuade your neighbour to cease their trespass on your property. If your neighbour disagrees with the findings of your boundary surveyor then they are free to obtain their own expert advice.
Boundary surveyors will normally undertake a site visit to inspect any historic physical boundary markers at the property. These are referenced in conjunction with various documents in order to provide an opinion of the position of the boundary.
Such documents would include information which is publicly available at the Land Registry, historic and aerial photographs and ordnance survey maps. These historical plans can then be overlayed with measurements taken with the surveyors own equipment to produce a plan showing the exact position of the boundary in the surveyor’s view.
A word of caution when looking at title plans obtained from the Land Registry. Such plans are based on ordnance survey maps and are deemed to show only what are described as “general boundaries”. This is set out in Section 60 of the Land Registration Act 2002.
In such cases, the exact line of the boundary is undetermined irrespective of what appears to be shown on the title plans. The red line general boundary on a Land Registry title plan can be approximately 0.4 metres on the ground. A margin of error on a 1:1250 map means that a boundary may be approximately 1 metre one way or the other. For this reason, a good boundary surveyor will use all of the above documentary evidence, together with historic physical boundary markers on the ground, when determining where the true boundary lies.
A solicitor’s letter clearly setting out your position in law backed up with an expert boundary report can often focus your neighbour’s mind and lead to agreement with regard to the shared boundary.
If your neighbour fails to respond, or does not cease their encroachment on your property, the only option may be to issue court proceedings. Before embarking on any such court action it is essential to obtain legal advice as this route can be very costly.
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