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James Picknell points out it isn’t always the incorrectly placed fence that sparks a dispute in the Essence November issue.
Most of us like to think that we would use our common sense and neighbourliness to find a swift, amicable resolution to any suggestion by our neighbour that the boundary fence is ‘not quite straight’ or ‘has been replaced a couple of inches to the wrong side’ by the fencing contractor. These are minor issues, right? In most cases, yes, but it is often not the incorrectly placed fence which sparks the dispute. There is often some other reason more important than the land in question.
At Mundays, we have handled and successfully resolved many boundary disputes involving all sorts of shapes and sizes of land. Our experience tells us that the classic triggers for causing boundary disputes are things like the extension that next door is planning which you really do not want built or the second house they are seeking to build in their large back garden, which may overlook your own.
A neighbour’s proposed development sometimes causes the boundary position to be examined when it might otherwise not. It could be because the neighbour planning the works considers the fence is not in the right place and were it realigned, this would make their works easier or facilitate a larger development. If they were not planning works, they may not care. Sometimes, it is simply that a neighbour has, despite best efforts, failed to prevent their neighbour from obtaining planning permission for that (in their eyes) hideous extension and so they look for other options to create leverage in the hope of causing their neighbour to reconsider their plans.
How can it be that we hear of boundary disputes rumbling on for months if not years? Is it really that difficult to locate the boundary of your land?
Most land in this country is registered at HM Land Registry. This means that your land has a bespoke title number shown on a registered title; the registered title describes your property and tells you about most property rights which affect it. It will also have a registered plan showing your property outlined in red.
Contrary to what many people think, the red line on the plan simply shows a general boundary line; it does not identify the precise location of your boundary. It may, of course, be of some use in dealing with a boundary dispute, but it will be next to useless for a dispute over a few inches here or there.
An exception to this is where the boundary has become a ‘determined boundary’ under section 60 of the Land Registration Act 2002. Here, the registered plan will show the precise location of the boundary.
How do you determine where the fence should go in the absence of an agreement?
It is beyond the scope of this article to provide a detailed answer to this question, but here is a short list of some of the key issues which are commonly considered at the start of a boundary dispute:
Even if there is evidence to prove that the fence is in the wrong position, a neighbour might claim to have acquired the right to be the registered owner of the disputed land due to their having been in possession of the disputed land for the required number of years without the consent of the neighbour. This is known as the law of adverse possession. Most claims for adverse possession are commenced by an application being filed at HM Land Registry.
Prior to the Land Registration Act 2002, a period of at least twelve years’ adverse possession of the disputed land was required in respect of claims concerning registered land. That is the period which still applies to claims concerning unregistered land.
However, for registered land the required period is now ten years save that, if the claimant can show that they had accrued twelve years’ adverse possession prior to 13 October 2003 and their land was already registered at that date, they can still bring their claim under the old twelve year rule as well as the ten year rule.
Surely the ten year rule is easier? Not always. Unlike the twelve year rule, proving ten years’ adverse possession is potentially just one of the hurdles which need to be overcome in a successful claim. A landowner who is served with a ten year rule application has the option both to challenge the alleged adverse possession and/or require the claimant to satisfy one of three available conditions. Claims can come unstuck at this stage.
As can be seen from this short note, boundary disputes can be far from straightforward.
Top tips for boundary disputes if one can’t be avoided
Whilst boundary disputes can be complicated, drawn out matters, we always consider with our clients at an early stage the available options for seeking to bring about an amicable resolution with their neighbour.
The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2018.
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