Boundary disputes

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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.

The Mediator is not a surveyor but has vast experience of land, property and housing issues both professionally and personally. He will help you to identify clearly what are the options for your possible agreement. 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 simple settlement agreement can then 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 even 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.

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 a thick red line. When a photo copy 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.

In any event, at the end of the day, it is likely that both Participants will have found a way to settle the dispute in the best terms likely to be possible in all the circumstances. The Mediator will have drawn the meeting to a close in good time to be able to assist the parties in recording their agreement.

In order to avoid even the slightest suggestion of bias, the Mediator will encourage the participants to write their own manuscript settlement agreement which will be binding on the parties when it is dated and signed. Only if this throws up some difficulty will he be inclined to act as a scribe to set down the terms of the agreement, precisely as stated to him/her by the Participants.