Dispute resolution – Boundaries

DISPUTE RESOLUTION – BOUNDARIES

A boundary is a line that divides two pieces of land. It may be physical (marked by a feature) or it may be legal (identified in the legal documents of title). The fact that a physical feature exists does not necessarily mean it is consistent with the legal boundary and often the physical boundary crosses the legal boundary along its course.

ESTABLISHING THE BOUNDARY LINE

The Land Registry plans only indicate the general location of the boundary of a property. To establish the boundary line:

• Look at the deeds (are there measurements?)
• Consider the text of the conveyance (e.g. does it say more particularly delineated on the plan attached or for identification purposes only?)

The granting of planning permission is not conclusive as to the location of a boundary. The planning authority is only concerned with the issues of planning law and does not investigate boundaries in respect of which it grants permission.

OWNERSHIP OF BOUNDARY FEATURES

Conveyance plans often include “T” marks. The direction in which the “T” is pointing is indicative of who owns a particular boundary feature. If there are no “T” marks then extrinsic evidence will be required to attempt to ascertain ownership.

EXPERT EVIDENCE

It is advisable to instruct a land surveyor who will take measurements on site using electronic plotting equipment, consider the historic documents, aerial photographs and features on the ground, compare the same and provide an opinion as to the location of the legal boundary. This is not always conclusive.

The role of the lawyers and the court is to use the surveyor’s opinion in conjunction with established legal principles to determine the line of the boundary.

TRESPASS AND ADVERSE POSSESSION

Trespass is committed when one person enters onto the land of another without the landowner’s consent or without lawful justification. It follows that in a boundary dispute it is likely one party will also be trespassing over the other party’s land. If a landowners fails to prevent a trespasser from occupying his land for long enough the trespasser may gain legal title to the land. This is known as adverse possession.

REMEDIES

A boundary dispute usually includes:

• A claim for a declaration as to the true position of the boundary
• Damages for trespass
• An injunction restraining trespass
• An injunction preventing a structure or for removal of one
• Costs

 

PRACTICAL IMPLICATIONS

When selling your property you will have a duty to disclose any previous or existing disputes you have with the owners of neighbouring properties to your buyer.

Entering into extensive litigation regarding a boundary dispute can fracture neighbourly relations beyond repair.

Many boundary disputes involve extensive litigation over many years at substantial cost often over very small areas of land.