Boundary disputes: everything you need to know

If you remember the 1980s, we all liked to think that neighbours became good friends. The reality can be very different, with neighbour disputes being some of the most common we deal with, particularly over boundaries. 

Boundary disputes remain one of the most common sources of conflict between neighbours. They can be stressful, time-consuming, and costly to resolve. In the worst cases, the only viable option is to take legal action. However, boundary disputes aren't unique to a residential setting; they can arise in various situations, including commercial properties, agricultural land, and common land.

There are many factors which contribute to boundary disputes, including:

• Unclear property deeds
• Different interpretations of property boundaries
• Fences, hedges or walls encroaching over a boundary
• Boundary positions changing over time
• Original boundaries being placed along an incorrect position 

Confusion often arises because there are two concepts when looking at a boundary line. Firstly, a physical line separates the two plots (perhaps with a fence, which can lead to fence disputes). Whilst parties can sometimes incur tens (or even hundreds) of thousands of pounds of legal costs arguing over the legal boundary line, even after the parties have their day in Court, you can all but guarantee that the 'neighbourly' relations are never restored.

If you are faced with a boundary dispute, this guide will provide a helpful starting point and offer some practical guidance through the various aspects of boundary disputes, resolving neighbour conflicts and your legal rights should you need to enforce them. 

The Boundary Disputes Protocol ('BDP') is an excellent place to start. This is a non-binding, pre-action protocol. It provides "best practice" for resolving these types of disputes early. If the matter later ends up in Court, a party's compliance will be viewed favourably when it comes to cost recovery.

What is a boundary dispute?

Usually, there is a dispute over the extent of land owned by one party or incorporated into a title, but they can relate to ownership of a boundary feature or structure and the obligations of repair, replacement, or liability to contribute to the costs of the same.

Types of boundary disputes

There are many types of boundary disputes. The most common include when someone has built across the boundary line, and the injured party wants the encroachment removed, or one party may wish to develop, but the boundary line is unclear and unmarked or another common dispute is when a party is trespassing on land by using land that they thought to be theirs but isn't.  

How to identify the legal boundary of your property

The title deeds do not always clearly define the legal boundary. However, the Land Registry is always a good starting point when establishing the boundary between properties.

If this doesn't provide clarity, the next step is to gather any historic conveyances, transfers and plans relevant to the property to determine the 'root' conveyance. 

If you need more than this, there is the option of taking the advice of a chartered surveyor to survey the land and report on the boundary or seeking legal advice to help define and document the boundary line. 

Common causes of boundary disputes

There are many causes of boundary disputes, including:

• Development plans that encroach across legal boundary lines. 
• Aerial trespass, such as eaves and guttering of built extensions to the boundary line. 
• Poorly erected or replaced fencing in the wrong position.
• Long rights of 'use' being misunderstood or abused.

How to resolve a boundary dispute

In order to preserve a good relationship with a neighbour, we would always suggest speaking to them in person where possible, or writing to them to explain the issue which will give them a chance to respons. 

If things have progressed passed this point, then seeking qualified legal advice and instructing an expert chartered surveyor is the first step in resolving a boundary dispute. This will inevitably involve a site visit and the preparation of a detailed plan of the boundary.

The Royal Institute of Chartered Surveyors ('RICS') provides a helpful search function on its website from which specialist surveyors can be located.

Common myths and presumptions

When you're looking to resolve a boundary dispute, it is important not to rely on certain myths and presumptions which we commonly hear. 

For example:

• "You own the left-hand fence when facing your house."
• "You own the right-hand fence when facing your house."
• "A T-mark on a plan shows that you own the fence."
• "The Land Registry title plan lets you scale up to confirm measurements."

These are but a few widely circulated myths with little to no accuracy. You should always refer to your own title documents and conveyance history, and where appropriate, seek legal advice.

The Land Registry ('HMLR') title plans do not (save in the situation of a "determined boundary") establish the legal boundaries of the properties with any precision. The plans used by the Land Registry are based on ordnance survey maps and are deemed to show only what are described as "general boundaries". Therefore, reliance upon Land Registry title plans will, in most cases, be virtually worthless.

The T-Mark

There are also many misunderstandings around the T-Mark on documentation - this does not provide the clarity that is perceived by many about fence ownership. A T-mark on a plan does not raise a presumption of ownership but may indicate ownership of a particular boundary feature. 

The T-mark may identify the subject matter of an express repairing covenant and not indicate ownership of that feature itself. Instead, the T-marks are simply one of several factors which can assist you in understanding the ownership of boundary features.

Correct presumptions

However, some presumptions do have merit in law. The "Hedge and Ditch" rule provides that where a hedge and a man-made ditch separate two properties, there is a presumption that the boundary is along the opposite edge of the ditch from the hedge or bank.

Land abutting a highway is presumed to extend to the middle of the road (subject to the surface vesting in the Highways Authority, where appropriate), and the same presumption applies to owners of property abutting a natural non-tidal river.

These presumptions are all rebuttable; in many cases, the presumptions will not provide anything like a definitive answer.

The law

When determining the position of a boundary, the Court's task is to ascertain the historic boundary line at the date of the earliest conveyance. That is when the land was first divided and is known as the "root conveyance".

The Court must ultimately consider what a reasonable person, standing in the position of the parties with the relevant objective factual background knowledge, would have understood the conveyance to mean about that particular boundary. A party's subjective beliefs about the location of the boundary are not admissible as evidence.

The topographical features of the land at the time of the conveyance are often determinative of the position of the boundary, but of course, how easy it is to understand the lay of the land at the appropriate time depends upon the date of the root conveyance.

Adverse possession

Once the position of the boundary is established, this could be the end of the matter. However, it frequently is not, as many factors may have come into play since the root conveyance.

Unregistered land

Regarding unregistered land, a "squatter" may acquire title to their neighbour's land if they have "moved" the boundary line and have been in exclusive possession of the land for 12 years. 

Registered land

In respect of registered land, the Land Registration Act 2002 ('LRA 2002') permits adverse possession of land if a neighbour has been in possession, for at least ten years of land adjoining a general boundary and the squatter "reasonably believed" that they owned the land over that time.

The decision of the Court - relief

Assuming that a resolution cannot be reached, a judge will decide the legal boundary line and have wide discretion.

In some cases, the line may be found to be located at a position not advanced by either party but in which there is some gain and some loss. 

Case law shows that judges are not obligated, in boundary disputes, to order the removal of any encroachments (injunctions) and could merely award damages (financial compensation) in lieu. This can then amount to a pyrrhic victory for the "winning" party if a structure complained of remains in situ.

The costs of a boundary dispute

Of course, by the time parties reach Court, the trial is often more about costs than recovery of the land itself. Again, the Court retains a general discretion on costs under rule 44.2 of the Civil Procedure Rules. It is by no means unheard of for a judge to disallow costs of a "successful" party in a neighbour dispute who has exaggerated or inflated the importance of the claim (or even order the winning party to pay the other side's costs). 

Indeed, the recent introduction of a fixed costs regime may impact the amounts recoverable inter parties, exposing any party to the costs they agree to pay on a solicitor or own client basis.

As always, "without prejudice save as to costs" offers, compliance with pre-action protocols, and an early mediation offer is always advisable.

The Property Boundaries (Resolution of Disputes) Bill 

Boundary disputes are fraught with difficulties, and in most cases, litigation costs dwarf the value of the land itself. 

The RICS, in conjunction with the Property Litigation Association ('PLA'), have launched a joint Alternative Dispute Resolution ('ADR') service for boundary disputes. As with most forms of ADR, the use of the process is voluntary, and there is currently no means to force parties to seek a resolution to their boundary disputes outside of Court.

The Property Boundaries (Resolution of Disputes) Bill has been going through Parliament since 2015. This Bill provides for the mandatory expert determination of boundary disputes by a surveyor before the commencement of any court proceedings (much like the Party Wall etc. Act 1996) and was last revived in January 2020. Time will tell whether this long-running Bill will be revived and make its way onto the statute books, but it's probably unlikely.

Glossary of terms used in boundary disputes

Boundary agreements

These can be useful as a means of resolving disputes, but be wary of any limitation on the binding of successors in title (subsequent owners). Boundaries can be ‘Determined’ on application to HM Land Registry in some circumstances.

Boundary markers

Usually, physical features that indicate the intended position of a boundary, such as a tree line or hedge. Surveyors use new markers to ‘peg’ out what they consider the legal boundary in the absence of other physical features.

Overhanging trees and shrubs

These can be cut back to remove any encroachment if it is reasonable to do so and does not cause disproportionate damage. Check for any preservation or conservation orders and always return any ‘cuttings’ to the owner.

Encroachment

Is the offending trespass being suffered.

Adverse possession

Occupying land ‘adverse’ to the true owner’s rights for the required period of time (which varies depending on when this occurred and if the land is registered) allows a ‘squatter’ to take possessory title to it.

Party walls

The most recognisable party wall is a wall that forms part of the building owner's building and stands on a boundary between the building owner's land and the adjoining owner's land.