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Lord Justice Mummery condemns “calamitous neighbour disputes”

23 July 2008

There are too many “calamitous neighbour disputes” in the courts, Lord Justice Mummery has said.

Giving judgment in the Court of Appeal in Bradford v James [2008] EWCA Civ 837, a case involving a battle between a Yorkshire farmer and the owner of a barn conversion over a small patch of cobbles, he said that more use should be made of local mediators.

“An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive,” he said.

“By the time neighbours get to court it is often too late for court-based ADR and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue.

“Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties, possibly for both.”

Lord Justice Mummery said the cause the “extreme acrimony” between neighbours in the case was a small area of cobbles used for parking and access to the barn conversion near Hebden Bridge.

He said when the farm was sold separately from the barn in 1976, there was a lack of clarity in the plan attached to the conveyance, and the uncertainty justified the use of extrinsic evidence to construe the conveyance.

He said that the combined the effect of the pre-existing planning permission and the plans, the subsequent conversion of the barn so that access to the front was over the cobbled area, the terms of the later conveyance of the barn, use of the cobbled area by the previous owner of the building and the lack of objection from owners of the farm were all properly construed as excluding the cobbled area from the farm.

Lord Mummery allowed the appeal, set aside the judge’s order and made a declaration of title to the cobbled area in favour of the Bradfords.

He added a practical suggestion to deal with the increase in residential development.

“More permissions are given to change the use of urban and rural buildings to dwellings. Partition into plots and units increases the potential for this kind of damaging and costly neighbour dispute.

“The risks can be minimised at much less cost than litigation by the use of surveyors' larger scale, detailed plans showing what is sold and what is retained and recording vital measurements and physical features.”

Lord Justice Jacob and Lord Justice Wilson agreed.

Robert Horsey, partner in the property litigation department of Ashfords in Exeter, said he agreed with Lord Justice Mummery that mediation was often a much better way of resolving neighbour disputes.

“The problem in persuading parties not to go to court is that they find the disputes so personal and become so emotionally caught up in them,” he said.

“They feel that any kind of compromise means giving in. My advice is often to move before things turn into a dispute. This is not advice they like to hear, but it is not easy to sell once you have a disclosable dispute. If two houses are equally nice and one has a dispute, which one is going to sell first?

“If you do go to court and win a marvellous victory, all you have often done is infuriate the person who lives next to you.”

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Conveyancing