Introduction

In one sense any dispute between adjoining landowners over land is a boundary dispute but the term is more usually applied where a strip only a few feet or yards wide is in dispute. Typically there will be some kind of long established boundary feature such as an earth bank, wall or fence and the dispute may be as to whether the boundary runs down the centre or on one side and, if so, on which side. There some cases there may be more than one boundary feature, for example there may be a wall and a fence running parallel.

Is Mediation Possible?

Everyone has the right to have any civil dispute they have determined by a court, and the courts will not refuse to hear a cases even if the width of the land in dispute is quite narrow. However although the courts will not refuse to hear a case, the courts generally encourage parties to consider settling their differences through mediation if possible.

Boundary disputes unfortunately often lead to a souring in relations between neighbours unless this can be  forestalled by mediation . The object of a mediation is not necessarily to reach agreement over the exact boundary according to the strict law but rather to reach a pragmatic compromise which both parties can live with.

Ideally before the mediation takes place a survey of the disputed area should be commissioned from a professional land surveyor. The surveyor should not be asked to give any opinion on where the boundary is, just to survey what he finds on the ground and produce a large scale map of the site so that, if agreement on a boundary is reached in mediation, the boundary can be drawn on the map which can then be incorporated into any formal written agreement recording the parties' compromise.

Mediation is not always successful. One party may refuse to mediate or, having agreed to mediate may be unwilling to compromise so that the mediation is ultimately unsuccessful. Sometimes what appears to be a dispute over little of monetary value turns out to  have wider implications. For example if a party is seeking planning permission for back-land development the width of the disputed land and its effect on the width of  the access way to the back land might be the difference between permission being granted and permission being refused. 

The other party may not wish to compromise because they want to prevent the development near their property. Or they may be willing to compromise but only on condition that a payment is made to them which takes account of the financial benefit to the other party through planning permission. This could be pure opportunism or, at the other end of the spectrum, it might be that they genuinely believe that the boundary is where they say it is and understandably do not see why they should give up land they believe they own without sharing in the financial benefits which are likely to accrue to the other party.

Court claims

If the dispute cannot be resolved through mediation, a court claim can be made. A claim can either be made in the ordinary civil courts - the County Court or High Court. Alternatively  some claims can be heard by the Adjudicator to the Land Registry if the land is registered or if a party now wishes to register it. There are advantages and disadvantages in either course. For example if the boundary dispute is accompanied by acts of trespass or nuisance where, for example, one party threatens to start building work on the disputed land, then it may be necessary to seek an injunction. The Adjudicator does not have jurisdiction to issue injunctions so any injunction would need to be sought from the County Court/High Court and, all other things being equal, it will, in that case, be convenient for the County Court/High Court to determine the boundary dispute itself as well.

How the Court Decides the Dispute

In the court proceedings each party will bring to the court process the evidence that party has been able to find and the court will hear argument as to the weight to be accorded to each piece of evidence and will make a decision as to where the true boundary lies. 

Many people are surprised that the identification of a boundary is not just a simple matter of looking at the plan accompanying the latest conveyance (or transfer document in the case of registered land). In fact most maps are too small scale to be able to pinpoint a boundary exactly and in any event conveyances (and registered titles) generally make clear that the maps are for "for identification only"  and that boundaries are "general boundaries" - i.e. showing only the approximate  position. 

However if the map and/or the words of the conveyance  actually identify a physical feature at the boundary then that can be used to determine where the parties to that conveyance intended  the boundary to be  providing, of course, that it is clear on whose land the boundary structure is said to  lie (and providing that the physical feature has remained substantially unchanged - i.e. has not been replaced - since the time of the conveyance). 

Yet unless the conveyance in question is the original conveyance which created the boundary  (i.e. a conveyance by a landowner of part of his land only) determining where the parties understood  the boundary to be is not necessarily where it is - if the vendor purported to sell land extending beyond that which he in fact owned then that cannot affect the ownership of the land he has never owned.

Besides the words and plans of conveyances, there may be other historical evidence which can be obtained. Old ordnance survey maps and aerial photographs can shed light on boundaries and there are certain presumptions which can play a part, such as the hedge and ditch rule. Ultimately the court will make a decision after weighing up all the evidence that the parties bring to it.  

Finally it should be noted that the principles of proprietary estoppel and adverse possession may mean that a party gains or loses land thus moving the boundary.