Experts | Drawing a line in boundary disputes

Boundary Disputes (BDs) have been a perennial problem in English neighbourhoods. Aside from the fact that BDs are chronic between hostile or unfriendly neighbours, lack of an accurate mapping system often leaves homeowners at a loss as to what exactly is the extent of their property, with the more aggressive claiming a piece of land that truly belongs to their neighbour. In a survey conducted several years ago, there were approximately 21,000,000 separate properties in England and Wales ranging from small suburban houses with tiny gardens to large rural estates covering thousands of hectares of land. Statistically the number of boundary disputes is small, perhaps a paltry 0.01 per cent over a ten-year period. Moreover, neighbours often end up spending a disproportionate amount of money over litigations in relation to as little as 25 millimeters of land or even less.

BDs are expected to continue to be rampant at least for the foreseeable future caused by a double whammy of inaccurate Land Registry (LR) plans and the deep rooted misunderstanding and reliance among England's homeowners that LR plans identify the correct boundary positions. At best, LR plans based on Ordnance Survey maps merely place on paper what is seen on the ground and quite often in the wrong position. The problem gets compounded with limited accuracy of plans drawn to a scale of 1:1250 or 1:2500. Boundaries can also change over time and this may not be recorded.

LR plans are only meant for general identification purposes. This is well reflected by the General Boundaries rule of LR that describes how a line on the LR title plan represents a hedge, ditch, a wall or fence. Cost is a major deterrent preventing the production of accurate maps that in the long run could prevent costly disputes between neighbours. It is expensive to employ land surveyors who can produce a map that accurately describes boundaries. Vendors and buyers rely on inaccurate and inadequate descriptions passed over by homeowners from many years back. Conveyancers overlook the importance of accurate dimensions.
Therefore there is insufficient information at hand to accurately define boundaries. It will be many years before the existing system of mapping is overhauled and replaced by more efficient and accurate mapping systems already available to other developed nations. This by implication means that we have to work within existing resources to make the system as cost effective as possible when a BD arises.

There has always been an argument that it is extortionate to take a matter as trivial as a BD (often a heavy price is paid for resolving a dispute over a very small area of land) to court.

It is contended that BDs can be resolved amicably through proper understanding and discussions between neighbours.

This is easier said than done as for the affected parties it would be rather difficult if not impossible to settle a matter across a fence as the BD would have caused hostility between them.

Role to play'¨However, a few effective methods have been devised to prevent BDs from being taken to court and this is where the role of experts comes into play. Taking advice from a jointly-instructed expert in boundary demarcation and disputes is cheaper than contesting the dispute in the court.

The expert's responsibilities also lie with the court. Under rule (35.3.1) of the Civil Procedure Rules (CPR) of the Ministry of Justice the expert is required to help the court on matters within his own expertise. This duty is paramount and overrides '¨any obligation to the person from whom '¨the expert may receive instructions'¨and payment.

In order that the expert's resource is used to its full capacity, he needs to be clearly instructed as to what exactly is required of him by the parties concerned. This will help the expert ascertain whether he actually has the expertise in the job that he is expected '¨to perform.

Experts should exercise reasonable skill and care to those instructing them and must provide independent advice. They should also maintain consistency with the advice they give irrespective of which party instructs them. They should be honest with the parties with whom they deal and should only offer opinion with matters where their expertise is recognised and advise when the matter is outside their expertise.

Alternative Dispute Resolution (ADR) provides a cost effective alternative to the expensive and long drawn out court procedures. Experts play a very important role in ADR. ADR is divided into mediation, expert determination, adjudication,arbitration and the RICS Neighbour Dispute Service (NDS).

In the middle'¨Experts can act as mediators who facilitate the meeting of the contesting parties. The role does not contain a decision making power and leaves the decision entirely with the affected parties. However, the mediator should have a firm grounding in property or land law and must steer the parties to settle the dispute amicably. Depending upon the expert's effectiveness, the dispute could be settled in a day's mediation. Obviously the time taken is also dependent on the magnitude of the dispute but generally BDs can usually settle quickly '¨as commonly the disagreement is over a piece of land between the gardens of the parties concerned.

The major proviso of mediation is that all parties must agree to create a binding agreement that will be written up and the dispute resolved. There is no requirement that all parties must be satisfied with the settlement but most people will be content with it as it saves time and money that will otherwise be spent in courts and leave them with a solution created by the parties themselves. There are no losers and winners in mediation.

Boundary demarcation and disputes experts will be well equipped to thoroughly study and analyse the documentary and physical evidence and will be able to draw conclusions based on analysis of the evidence akin to a forensic scientist. Most experts act in boundary disputes.

Adjudication and arbitration take the decision making process out of the party's 'hands and therefore are accompanied by the disadvantages that go with that.

NDS is cheaper and quicker than dealing with a dispute in courts. It is rather a hybrid ADR offering a three stage process of expert evaluation, negotiation and compromise and expert witness reporting. Parties have the option of settling at the end of either the first or second stage of the process with the expert preparing a report if a settlement is unachievable and the parties are convinced that they should follow the court procedure.

With the government's cut back on court services and legal aid it is easy to forecast that the role of experts will only increase substantially in the years to come and will provide plenty of opportunities for those who wish to qualify as experts.