To quote G.K. Chesterton, “The Bible tells us to love our neighbours, and also to love our enemies; probably because generally they are the same people.” Does the new Boundary Disputes Protocol mean this will soon be a thing of the past?
Over recent years, there has been growing concern surrounding the number of boundary disputes that end up in the Courts. The concerns mainly surround the ever-increasing costs involved, and the fact that those costs generally far outweigh the value of the property in question.
The Government recognised these concerns as early as 2012 by publishing the Property Boundaries (Resolution of Disputes) Bill. This sought to impose a compulsory determination of boundary disputes by a suitably qualified expert. However, the progress of the Bill has been slow and any advances are likely to be halted altogether for the foreseeable future, given the current political climate.
2. The protocol
With a keen need for some structured guidance in this area in mind, Falcon Chambers and Hogan Lovells International LLP have developed a Boundary Disputes Protocol. It is said to apply “where neighbours are in dispute about the location of the boundary between their properties” and applies to both residential and commercial properties. The aim is “to provide such a process, which seeks to ensure that neighbours exchange sufficient information in a timely manner to minimise the scope for disputes between them; and to enable any such disputes to be readily resolved, keeping costs to a minimum”. At the moment the Protocol is voluntary, but it does have the backing of the Property Litigation Association.
Looking in a little more detail at the Protocol itself, the main features are:
- Parties are encouraged to exchange information at a very early stage. At the earliest stage, this is said to include Land Registry title information or any notes about boundary agreements in the official copies.
- If this fails to resolve the dispute, the parties are encouraged to engage in a quasi-disclosure exercise and assemble all the information they have in their possession, and then exchange such information with the other party. At the same time, if either party considers they may have an adverse possession claim (which would render any further investigation of the paper title useless), they must inform the other party.
- In a case which does not involve adverse possession, the parties should consider whether they can exchange information as above, without professional input and having exchanged information, whether they can reach an acceptable resolution by direct negotiation or with the assistance of a mediator.
- Even if legal advisers are subsequently appointed, the Protocol suggests that they should consider whether further negotiation or mediation is appropriate and inform the other party within two weeks of their appointment.
- Parties should seek to agree whether they have the first conveyance by which the properties passed into separate ownership, and if so, which one it is. Once the first conveyance has been identified, each party must consider what evidence they will be able to adduce about the physical features which existed on the ground at the date the first conveyance occurred. The parties should identify proposed witnesses of fact and what they will say.
- Where the first conveyance provides accurate plans and the parties cannot settle the dispute, the Protocol anticipates that it is likely expert surveying evidence will be required. The Protocol recognises that in some cases it will be appropriate to have a jointly-appointed expert and in others, for the parties to instruct an expert each.
- After complying with the Protocol as above, the parties are encouraged to try again to agree the boundary. If they cannot agree, they should consider whether alternative dispute resolution might be more suitable than litigation.
- If agreement cannot be reached, the ‘final step’ will be for the dispute to be referred to the appropriate tribunal; either the Court or the First-tier Tribunal (Property Chamber) (Land Registration) for determination. The costs consequences of this ‘final step’ are heavily emphasised.
- Parties are reminded that, where an agreement is reached, this should be set out in writing with a plan attached. It is suggested that it would be wise for the agreement to be drawn up by a lawyer and for each party to apply to the Land Registry to note the agreement against their titles.
3. The future
Although it is not compulsory for the parties to comply with the Protocol, it is anticipated that this will become the first port of call for those involved in boundary disputes. It is hoped that, like with other areas of the law such as construction, dilapidations and professional negligence, where compliance with a protocol is compulsory and as a result, disputes are often resolved more quickly and at a lower cost, that the new Boundary Disputes Protocol will follow the same path.