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Author: Tamsin Reader
Dispute Resolution lawyer, Tamsin Reader, comments on Parliament's proposals to try and resolve boundary disputes between adjoining neighbours without involving the courts and expensive litigation through the introduction of the Property Boundaries (Resolution of Dispute) Bill 2016 which is currently at Committee stage in the House of Lords.
Boundary disputes can be long and complex matters, particularly in a residential context. The size of the piece of the land involved can be inversely proportionate to the level of discourse between neighbours. Mediation has improved situations to allow neighbours to attempt to live in peace once agreement has been reached but this is not always possible.
The Bill has been drafted to suggest that rather than making an application to the Courts, the boundary is determined by surveyors appointed for the purpose. This is similar in nature to the process employed under the Party Wall Act 1996.
The Bill envisages that where an owner of land (defined as a freehold owner of land) wishes to establish the position of a boundary or private right of way, he must serve on the adjoining owner (defined as freehold owner) a notice accompanied by a plan. If the adjoining owner does not consent to the line of the boundary as shown on the plan, a dispute is deemed to have arisen.
Where a dispute arises, parties can agree a single joint expert, to employ one surveyor each who will then jointly instruct a third. The surveyor(s) shall then determine the dispute and set out the decision in an award which will also deal with who should pay the costs of the dispute.
The surveyor’s findings will be conclusive and can only be challenged if an appeal is made within 28 days to the High Court. Within 28 days after the expiry of the appeal period, the owner of the land is required to submit the Award to the Land Registry and the Award will then be noted on both Titles of the affected land.
However, there is a long way to go before the Bill receives Royal Assent. Clearly, the main focus is to try and free-up the Courts time and allow parties to deal with matters in a much more cost effective and timely manner. It relies entirely on the expertise of surveyors without any significant contribution with regards to the legal matters involved, including the legal construction of documents, boundary agreements and any potential adverse possession matters. If the Bill is enacted, it will be compulsory and therefore this oversight could lead to further problems at a later date.
Whilst the process must be welcomed as an opportunity to reduce freehold owner’s costs and the timeframe in determining boundary disputes, it does not appear to address the legal aspects of such a dispute. Further it appears that it will only be open to freeholder owners and leaves open the question of what a long leasehold owner would do where a boundary dispute arises.
lt is likely their only recourse would be to the Courts in any event.