Residential boundary disputes: worth the fight?

In a recent webinar on Residential Property Litigation, Carl Brewin of 3PB Chambers looked at the current law and practice on dealing with boundary disputes, asking whether they can ever really be straightforward and in a residential context whether they are ever worth the fight.

In this post, Mr Brewin looks at some of the recent authorities discussed in the webinar as well as considering what changes to the law - and in particular practice - have been proposed and what the effect of those might be.

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No real shortcuts

Compulsory land registration has seemingly not reduced the number of disputes appearing and this does not look set to change because the law and principles on which they are determined has not changed. The authorities of Hatton v Connew [2013] EWCA Civ 1560 and Weymont Place [2015] EWCA Civ 289 continue to tell us only that there are no real shortcuts and that the Courts and Tribunals are required to take their time to consider all evidence and follow all proper procedures in determining such disputes at a final hearing.

Tribunal’s jurisdiction clarified

Despite the decision in Murdoch v Amesbury [2016] UKUT 3 (TCC) that cast some doubt over a Tribunal’s jurisdiction to determine boundaries given to it by the Land Registration Act 2002 and Land Registration Rules 2003, the Upper Tribunal has clarified in Bean v Katz [2016] UKUT 168 that the Tribunal has jurisdiction to dispose of determined boundary references where the objection is not to the quality of the boundary plan proposed but to what the plan says about the boundary.

Court of Appeal reiterates general disapproval of boundary disputes

In Gilks v Hodgson [2015] All ER (D) 96 (Jan) the Court of Appeal has once again in clear words reminded litigants and their advisors of its disapproval of boundary dispute litigation generally and particularly in relation to the costs involved and proportionality as against the value of the land in dispute.

Nonetheless, it seems inevitable that such disputes will continue to arise and continue to be fought, not least because their true essence is very often not financially motivated and quite often not even to do with the boundary itself.

Avoiding litigation – what are the options?

The Ministry of Justice “Boundary Disputes – A Scoping Study” January 2015 report, following consultation, concluded that wholesale reform of the law or principles to be applied (themselves somewhat piecemeal) was unnecessary, but there should be more emphasis on mediation and expert determination.

However, while mediation is very often successful, the process itself can sometimes simply add to already spiralling costs for cases where it is clear no settlement can be reached but the parties realise or are advised they must nonetheless attempt it.

Use of expert determination remains limited and it can be difficult even to persuade the parties to agree to the process and be bound by any decision.

In addition, the report cited early judicial site visits and indications with more robust case management and transfer of cases to the Tribunal as measures that would assist to dispose of more cases in as proportionate a manner as possible. It remains to be seen how this will be implemented in already stretched civil courts and in particular the County Court so that it will not divert resources from other areas in need.

In the full webinar: Residential Property Litigation, our expert speakers discuss contentious issues relating to residential property law including:

  • Establishing and quantifying beneficial interests;
  • TOLATA and remedies; and
  • Current law and practice on boundary disputes.

 

Filed Under: Property

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