The approach of Autumn sees shorter days and deteriorating weather, however, with increased winds comes the risk of falling fences and can open up issues relating to repair and maintenance of boundary structures, with the potential for boundary disputes to follow…
One recent long-running case saw an Essex couple fighting over six inches of disputed land ownership for eleven years, with costs predicted to be as high as £60,000. The couple, Philip and Denise New, say they have had to remortgage their home to cover the costs after losing their case.
The argument started after they replaced rotten fence panels: they say they used the original cement posts that had been there for 50 years, but their neighbours said the fence was in the wrong place and that the News were trespassing on their land.
Mediators and land professionals were called in, but the neighbours were unable to reach any agreement over the disputed land, with the case finally reaching the High Court.
Property litigator Daniel Smith commented: “This was an extreme example, but boundary disputes have a tendency to inflame neighbour relationships.
“The best approach is to try and avoid arguments arising in the first place, by having a quiet chat with neighbours before you do the work. If that highlights a difference of opinion and you can’t resolve things, then staying civil is important. You still have to live next door to each other and even if you think a house move may be a solution, remember you have to declare any disputes when you come to sell a property these days.”
Boundary problems often arise because nobody knows who owns and is responsible for a fence or the location may not be clear from Land Registry records, the Land Registry usually only provides general boundaries. While modern housing will more likely state who owns which boundary, or whether it is a party fence, it is not always clear. Locating original title deeds may help ascertain the ownership or location of a boundary.
One option is to apply to the Land Registry for what is known as a ‘determined boundary’, obtaining an expert’s report to make your case and submitting with a surveyor’s drawing of the proposed boundary. Approval is not a guaranteed solution, as the neighbour must still agree with the determined boundary; if they don’t then it would mean going to a tribunal.
Otherwise, an offer of payment for any area of land under dispute, in return for setting an agreed boundary may be a solution.
Another possibility where there is uncertainty over the boundary line would be to fence the area concerned, then after ten years, provided the land is registered, an application for formal ownership can be made, claiming ‘adverse possession’. This may be an option where the adjoining landowner is not known or other situations where no immediate neighbour is involved and actively disputing the boundary.
Establishing where the boundary is and who is responsible for it does not place any requirement on the owner to replace a fence, so if you are the one determined on the upgrade, it may be worth considering offering to pay for it. There is no reason why not, even if you are not the one who is responsible, but you will still need to get agreement from your neighbour first. Discussing what you have in mind also gives an opportunity to agree who is responsible for future maintenance.
He added: “If you really don’t feel able to have an initial conversation, or if you’ve already landed yourself in the middle of a red-hot boundary dispute, then that’s the time to call in a professional to act as intermediary with your neighbour, rather than pressing on and raising the temperature further. Then, if you reach agreement, you may have to declare the dispute, but you can say it was settled”
If you require legal assistance regarding boundary disputes or another dispute listed please do contact Daniel Smith or our Dispute Resolution team.