Boundary Disputes
In one sense any dispute between adjoining landowners over land is a boundary dispute but the term tends to be applied to cases where only a narrow strip of land on the boundary is in dispute.
Boundary disputes are a specialist area within the law of England and Wales and paradoxically tend to be more complicated, and more costly to try to resolve, than land disputes involving larger areas of land. One reason for this is that small-scale plans, the kind of plans used in conveyance deeds, typically do not show the precise limits of the land being conveyed. They are often roughly drawn and not to scale.
Because of these practical difficulties the legislation providing for registration of land in England and Wales in fact provides for the registration of approximate boundaries, or general boundaries, as they are referred to in the Land Registration Act 2002. A Title Plan issued by the Land Registry will contain a note saying This title plan shows the general position, not the exact line, of the boundaries.
One notable logical consequence of the general boundaries rule is that if the registered title consists solely of a thin strip of land, it is possible that that registered title contains no land at all. So counter-intuitive is this consequence that it was thought necessary to spell it out in the original Land Registration Rules 1925. Rule 278 of the old rules provides that:
278.— General boundaries.
(1) Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan... shall be deemed to indicate the general boundaries only.
(2) In such cases the exact line of the boundary will be left undetermined—as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream...
(4) This rule shall apply notwithstanding that a part or the whole of a ditch, wall, fence, road, stream... forms the whole of the land comprised in the title. (emphasis added).
Of course even though the registered title only shows the approximate position of a boundary, the boundary must objectively be in some precise position. It is just that the courts and other tribunals only pronounce on its exact position if some dispute has arisen (which cannot be settled by agreement - always the first thing to consider) and in that case additional evidence - beyond the usual evidence of title - will need to be considered including evidence of historical boundary features. Invariably a land survey will need to be carried out by an expert surveyor.
There can be a risk that litigation over a boundary dispute becomes a runaway train where, after significant legal costs have been incurred, the parties feel that they must see it though to the bitter end, rather than withdraw, because a party which unilaterally withdraws (without terms being agreed with the other side) is normally ordered to pay the legal costs so far of the other party. If litigation continues to the end then generally the party which eventually loses is ordered to pay the legal costs of the winning party. If the dispute is over an acre of land and party A, which claims title, is awarded title to the whole one acre, then party B, which has lost, will typically be ordered to pay A's costs. If A is awarded most of the one acre except for a small strip of land on the boundary then again, A having won the overwhelming majority of the land claimed, B will normally be ordered to pay A's costs. But if, instead of one acre being in dispute, it is only the thin strip of land on the boundary which is disputed - a typical boundary dispute - then who is ordered to pay whose costs hinges on who is found to own that small strip of land. This is what makes the decision about whether to commence or continue boundary dispute litigation particularly difficult.
Court Claim or Land Registry/First-tier Tribunal?
Resolution of a boundary dispute can involve making an application to the Land Registry (which, if objected to, will then be referred to the First-tier Tribunal (Property Chamber, Land Registration Division) or, alternatively, making a civil court claim. A court claim in a boundary dispute case if made in the High Court will invariably be transferred to the County Court so a "court claim" in practice means a County Court claim. The pros and cons of each will vary, to a degree, depending on the particular case, but generally:-
The Land Registry has the power to reject objections which are groundless. Many applications are, on the other hand, accepted and actioned by the Land Registry without any referral to the First-tier Tribunal being necessary. If the Land Registry decides to refer an application to the First-tier Tribunal it will first give the applicant and objector notice of its intention to do so which then allows the applicant to withdraw the application, or the objector to withdraw the objection, before formal litigation (and potential costs liability) commences. The advantage of an application being made to the Land Registry is that the application is required to have a professionally drawn detailed plan and to present the evidence supporting the applicant's contention as to where the boundary line is: the Land Registry can cancel the application if it does not meet the required standards. The neighbour then has the opportunity to examine, and take advice on, the application and will often not object which means that the Land Registry then complete the application without more ado. Most people are willing to compromise a little where matters are unclear on the ground in order to get the matter settled as long as the they do not feel they are being taken advantage of. If the neighbour does object then there is a pause during which the parties can negotiate. If agreement is not reached and neither side withdraws then the Land Registry will refer the matter to the First-tier Tribunal. It is only at this stage that formal litigation, and potential costs liability, commences. By contrast if a County Court claim is started then at the time when proceedings formally commence the Claimant is not required to file a professionally drawn detailed plan with evidence - that comes later. Consequently by the time the Defendant has the necessary information to make an informed decision on what stance to take the parties are already some way in to the processes formal litigation where by default the party which loses (or concedes) normally has to pay costs. Thus the proceedings can becomes rather like a runaway train where by the time information is available which would facilitate agreement on the boundary line, each side is reluctant to agree because they cannot then agree on who should pay the costs incurred so far. It is true that litigants in the courts are required to use a "pre-action protocol" to see if agreement can be reached before formal commencement of proceedings, but because there is no independent scrutiny as to the completeness and quality of the information provided by the Claimant during the pre-action protocol the pre-action protocol is nowhere near as effective as the Land Registry procedure.
In boundary dispute cases in the County Court it is very rare for the parties to each be allowed to engage their own expert land surveyor: the court will invariably only give permission for the instruction of of a "single joint expert" (SJE) land surveyor. That is to say the same single expert surveyor has to be jointly engaged by both sides. The thinking behind this is that it should save costs, but it does not always save costs in the end. First of all the parties are obliged to negotiate with each other over the joint written instructions to initially be given to the SJE. An expert is not a "hired gun" - their ultimate duty is to the court and the expert must be professional and give their honest opinion in the report they write and the survey plan they produce. But exactly what questions the surveyor expert is asked to address and the scope and detail of the survey they are asked to carry out, is specified, either generally or in greater detail, in the instructions. One party may suspect that if the surveyor looks at some particular aspect in depth that is may help that party's case and they may wish the joint instructions to specifically direct the surveyor to deal with that aspect. The other party, suspecting that some other aspect may particularly assist their case, may wish the surveyor instead to be directed to concentrate on that aspect. The SJE's fees - to be split between the parties - depends on the amount of work involved so each party has an incentive to try to limit the aspects to be considered by the SJE to those which have a chance of helping its own case. Hence agreeing the joint instructions is not always straightforward. If in the end the parties cannot agree joint instructions then they can each send their own separate instructions to the expert but they are obliged to first try to agree, so the whole process of the initial instructions to an SJE can involve much time and hence cost. Once the expert has written their report each side can put their own questions in writing to the expert but these are essentially questions of clarification or of asking the expert for more details of their reasoning or asking them to consider some hypothesis against their findings. One party cannot instruct the expert to carry out further surveying activity if the other does not agree (as both are sharing the costs) without a direction from the court and a formal application for directions to the court involves a party in further cost. Indeed any application to the court involves costs for both parties with the party which "loses" the formal application for directions - i.e. the party which does not obtain the direction it seeks - being ordered to pay the other side's costs of the application for directions. So not only is the process of making an application for directions costly but it is also risky because the court may refuse the application not because it is defective or irrational but simply because it is considered to involve more work than the importance of the matter in dispute deserves. By contrast if the Land Registry route is taken the applicant alone instructs the expert who draws up the plan for the initial application so that the process of giving instructions is much simpler. In deciding whether to object to the application the neighbour always has the option of instructing their own expert surveyor but if the plan produced by the applicant's surveyor is clear (as it will be otherwise the Land Registry themselves would have cancelled the application at an early stage) and the evidence cogent, and particularly if the amount of land involved is not large, the neighbour may decide not to object so that a second surveyor is not required after all. Or the neighbour may decide to object but do so on grounds which do not require them to instruct their own expert surveyor - such as some legal argument or some argument based on facts which can be proved by old photographs or witnesses and which do not rest on the need for expert surveyor evidence. It is rare for the actual survey plan produced by the applicant's professional surveyor (as distinct from any report drawing conclusions) to be disputed as that is a matter of measurement.
The judges of the First-tier Tribunal (Property Chamber, Land Registration Division) are specialist land law judges whereas judges in the County Court who deal with boundary disputes are not usually specialists.
The rules which apply to the Land Registry and First-tier Tribunal have been written this century whereas many (not all) of the rules which apply in the County Court have not changed since the 19th Century. For example the rules in the First-tier Tribunal require the key documents which a party relies on and the documents required to understand a party's case to be provided with their Statement of Case. This is not so in the County Court and consequently the responding party may not fully appreciate the case of the party which commences County Court proceedings until later in the process when even more costs have been incurred.
On the other hand you can only apply to the Land Registry to register a "determined" (exact) boundary if the land is already registered land (registered in the normal way with "general" boundaries) or if an application to register is made at the same time.
It should also be appreciated that a court claim, if pursued to the end, will invariably result in the court deciding exactly where the boundary line is. If the court decides that the boundary is not where the Claimant claims it to be, the court will do the best it can, even if the evidence is somewhat sparce, and declare where the boundary is: it is extremely rare for the court to dismiss both claim and counterclaim and leave the boundary undecided. If the First-tier Tribunal decides that the boundary is not where the Applicant claims it is, it will also attempt to decide exactly where it is but the First-tier Tribunal will more readily exercise the option, if the evidence is sparce, of simply dismissing the Application and leaving the boundary "fuzzy" - i.e. leaving it registered as just a "general" (approximate) boundary. Sometimes the First-tier Tribunal may decide the exact position of part of a boundary and leave another part, about which the evidence is less clear, as a "general" boundary. If the tribunal leaves the entire boundary as a general boundary then that means that the applicant is counted as having "lost" the case and normally has to pay costs.
The jurisdiction of the First-tier Tribunal (Property Chamber - Land Registration Division) is generally limited to matters which could affect what is recorded in the Land Register. The County Court, on the other hand, has a much wider jurisdiction. This could be an advantage but in most cases it turns out to be a disadvantage. In most boundary dispute the neighbours are primarily interested in having the position of the boundary decided but typically there will have been some action which precipitated the dispute and often some ongoing friction. Usually once a boundary position has been definitively declared by the tribunal that resolves matters one way or another and neither party would wish to go to the trouble of commencing court proceedings for past acts of nuisance for which the court would be likely to award no more than modest monetary compensation - and an application to the court for an injunction to prevent future acts of nuisance would only be likely to be granted if it can be shown that there is an ongoing likelihood of further acts which there normally is not. However if matters proceed in the County Court then precisely because the court does have jurisdiction to consider nuisance claims it very often happens that a claim for nuisance and the like is included in the claim along with the boundary dispute itself which in turn results in much time and money being spent in litigating the details of each complained of incident. So this is a further reason why the court option can be very costly compared to the Land Registry/tribunal route.
Although the First-tier Tribunal has no power to itself grant an injunction that is not really a problem. Usually once a boundary has been definitively declared it is respected: it is the uncertainty which causes neighbours to encroach and once an authoritative decision has been made by the tribunal usually there will be no continuing problem of trespass. If, following a decision by the First-tier Tribunal, there were to be a continued encroachment then a court claim for an injunction could still be made and would be more straightforward because the position of the boundary would already have been determined by the tribunal. Occasionally an urgent injunction is essential before a final decision on the position of the boundary can be made. For example if a neighbour is threatening to demolish a historical wall, a temporary injunction will be necessary if it is desired to prevent that happening while the process of having the position of the boundary authoritatively decided proceeds. In that case court proceedings would need to be issued. But once the urgent matter of an interim injunction has been dealt with the court proceedings could be held in abeyance ("stayed") whilst an application for a determined boundary is made to the Land Registry.
So overall the limited jurisdiction of the First-tier Tribunal (Property Chamber - Land Registration Division) turns out to be an advantage. It means that the underlying dispute over the position of the boundary is determined first whilst the costly process of litigating over individual acts of nuisance is put to one side. Litigation over past nuisance can still be pursued later in the County Court if either side thinks it worth it but the parties avoid being plunged prematurely into costly court litigation over something which, in the cold light of day, once the position of th eboundary has been determined, both parties may come to view as a secondary matter not worth costly court further litigation.
Disclaimer
The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but Contact me for advice
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