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How we deal with a boundary dispute
Strangely enough, what we refer to as a boundary dispute is not necessarily about a boundary at all. In that expression, we include a whole package of legal rights which cause apparently intractable disputes.
Apart from basic land ownership along a boundary, these include, for example, rights relating to: car parking; boundary maintenance; ownership of the physical fence, hedge, wall, or whatever designates the boundary; rights to light; rights of drainage; problems with trees and high hedges; and above all, rights of access.
A dispute with your neighbour will eat up your life and your happiness. Mediation can usually help you to solve even the most intractable boundary dispute.
The mediation meeting will usually start on site, where both sides can present their arguments. Presentation before the Mediator is likely to be less aggressive and less confrontational than it may have been over the months between you and your conflict party. Discussions can continue either in one of your homes or may be down at the local pub.
The Mediator is not a surveyor but will indicate clearly what he thinks the options for agreement may be. When you finally come to a deal, the Mediator will even help you, if necessary, to mark out on the ground, exactly what you have agreed.
A very simple agreement in the form of a memorandum of understanding can also be drawn, signed and dated as a binding deal. Obviously, that is essential if promises are made for instance, in respect of tree pruning, drain clearance, rights of access, rights of light or any other issue than simply a definition of where the boundary is Ven if one side is determined to maintain the status quo, the mediation process will expose the relative chance of success in the County Court. That means a stubborn party is more likely to understand the risk of failing to compromise.
The Mediator has enormous experience and understanding of land law and, just as importantly, how things work on the ground.
How boundary disputes arise
Disputes about boundaries and land ownerships arise constantly for these reasons:
- Early ordnance survey maps did not define boundaries precisely.
- No matter how skilful a surveyor may be, he/she will have no knowledge of who owns the physical boundary like a hedge or fence or a wall. Often that physical boundary is entirely on one person’s land.
- Many people know that “their” land actually includes a strip of what actually belongs to their neighbour. If they like it that way, they will argue to leave it that way, knowing that the neighbour is unlikely to want to pay out £50,000 to take their case to court. Over time and multiple land ownerships, everyone forgets what was the original true boundary.
- Until the Land Registration Act of 1925, the records of individual ownerships were maintained only through conveyancing records – and solicitors have never been very good at surveying!
- In recent times, ownerships have often been defined by thick red line. When a photo copy without differential colouring, has been sent to the Land Registry, that registered record may well show the boundary as 5 m wide, removing even correct evidence from an earlier period.
- When a building company constructs multiple houses on a site, they make a set of rules (“covenants”), which have to be accepted by every house buyer. Sometimes a house owner will consider one of the covenants to be ridiculous. He will simply refuse to comply.
- Common law nuisance: "causing a substantial and unreasonable interference with a [claimant]'s land or his/her use or enjoyment of that land". In the round, it covers noise, dogs, bright lights and so on.
- The rule in Rylands vs Fletcher: things escaping and causing the problem: water flooding; drones overflying; loose dogs, and many more.
- Finally, we have the Human Rights Act which is often thrown in as an afterthought because it covers almost everything.
The Mediator will help both sides to see through this thick and tangled forest and, in most cases, come to a deal satisfactory to both sides which enables you to get on with your lives without this constant worry
Most common complaints
In a suburban location:
- boundary arguments
- barking dog
- leaving dog loose to wander
- dog is aggressive, or at least frightens children
- noise – particularly constant, repetitive noise of machinery, equipment or music, including late-night parties
- exterior lighting which protrudes onto neighbour’s land or into windows
- unfounded accusations based on fear of what the neighbour might have done
- hedges, or any other growth which spreads onto neighbour’s land or causes excessive shade
- reduction of right to light
- reduction or interference with a right of access or parking
- drone activity, which could interfere with privacy
- ungrounded fears and threats
In the country:
- streams, ditches, drainage
- drifting chemical spray
- shooting, bird scarers
- boundaries and fencing obligations
- rights of way
Mediating a boundary dispute
The mediation process is straightforward. The Mediator will deal with your dispute objectively, sympathetically and fairly. He will not be a judge or critic. He will simply help you to find solutions you may not previously have considered and will nudge you in the direction of finding a settlement acceptable to both parties.
The Mediator will certainly need to come and have a look on site and weigh up the problems for himself. In some cases it may be helpful for him to talk to each side separately; in others it may be possible to discuss over a cup of tea in someone’s kitchen or at the local pub.
If the circumstances are complicated then the dispute may require mediation more aligned to the procedure for a business dispute. If that is your preference, it opens up a wide range of
possibilities with regard to the venue.
Faced with the Mediator’s assessment and explanations and the enormous cost of County Court litigation is the only alternative outcome, both parties will find a way to agree. The Mediator will draw a simple heads of terms document which will be binding on the parties when it is dated and signed.