When you hear the term “boundary dispute”, you probably imagine the following familiar set of circumstances:
- Two parties at loggerheads over a small strip of land.
- Entrenched positions holding sway over the legal and surveying considerations actually needed to resolve the dispute.
- A complex, chaotic and protracted dispute, even though there should be a well-worn path for resolving such arguments.
- Legal and other costs quickly getting out of all proportion to what is at stake.
- A dispute which is ripe for mediation or some other form of alternative dispute resolution (ADR) but with parties unwilling or unable to take that step.
Surely there must be a better way? Now there is. As part of the Property Protocols initiative, Hogan Lovells, together with barristers from Falcon Chambers, have devised a Protocol for Disputes between Neighbours about the Location of their Boundary (The Boundary Disputes Protocol) . It is a free resource available to all and applies to any commercial or residential property situated in England and Wales.
How does it work? The protocol sets out a timeframe and process for neighbours to exchange information, minimise the scope for disputes, and enable disputes to be resolved as efficiently as possible.
First it details a series of steps for the parties to follow as soon as a boundary dispute arises, including identifying the first conveyance by which their properties fell into separate ownership (very often the key for unlocking the entire dispute). Evidence should then be sought and exchanged about the physical features on the land at the time of the first conveyance.
The protocol then lays down ground rules for the use of expert surveyors. A single expert should be jointly instructed where appropriate. Where the value of the land justifies separate experts, they should produce reports, meet, identify and narrow the issues between them in accordance with a set timetable.
Once those steps are taken, there should be a meeting on site with the parties and their surveyors in order to agree exactly what the issues are and see if any accommodation can be reached. If so, the protocol outlines the importance of properly documenting and registering any agreement to prevent further disputes in the future.
Significantly, the protocol encourages the use of mediation and other forms of ADR at key stages throughout the process and directs the parties and their lawyers to keep further negotiation and mediation under review at all times. The protocol rightly warns that parties who fail to do this will do so at their peril should it come to costs being awarded at court, whatever the outcome.
In our view, this structured but consensual way of resolving boundary disputes, which does not always have to involve professionals, but recognises that sometimes there are legal and surveying issues to be considered, is preferable to the draft Property Boundaries (Resolution of Disputes) Bill currently in Parliament. The Property Litigation Association agrees with the approach taken in the protocol and has given it their backing.
The authors of the Boundary Disputes Protocol are:
Guy Fetherstonhaugh QC of Falcon Chambers
Jonathan Karas QC of Falcon Chambers
Stephanie Tozer of Falcon Chambers
Nicholas Cheffings of Hogan Lovells
Mathew Ditchburn of Hogan Lovells
David J Powell FRICS of PSL Chartered Land Surveyors has contributed a Supplementary Guidance Note on what to expect from surveyors