Purpose of Expert Determination
Expert Determination is a form of dispute resolution used when both parties are in agreement that there is a need for an evaluation of a specialized but disputed factual issue. The parties appoint an independent expert in the subject matter of the dispute to resolve the matter. The expert's decision is - by prior agreement of the parties - legally binding on the parties.
The Expert Determiner does not sit in a quasi-judicial capacity and is therefore not bound by the evidence and the submissions made to him: the Expert may undertake his own investigations and come to his own conclusions, irrespective of the evidence and submissions.
The advantages of Expert Determination are that the process is confidential, speedy, cost effective and final.
Expert Determination of a boundary dispute
The principal expertise expected of a surveyor in a boundary dispute is that of interpreting onto the ground the position of a boundary as described in the earliest conveyance (if the land was unregistered at that time) or transfer deed (if the land was registered) affecting the parcel of land i.e. the position of the "paper title boundary".
The description of the boundary in the earliest title deed may have been ambiguous, and it is possible that the parties (or any pair of their respective predecessors in title) may have agreed an exact position for the boundary for the purpose of clarifying the ambiguous description in the earliest title deed of the paper title boundary. It would fall within the Expert's remit to Determine the position of a disputed boundary that was the subject of such an agreement.
It is for the parties to agree whether or not they will permit the Expert to consider whether or not the position of the boundary is affected by questions of adverse possession. An Expert in Boundary Demarcation is well placed to discover and evaluate the evidence for adverse possession but the Courts will usually hold that adverse possession is a legal decision beyond the Expert's area of expertise.
Again, it is for the parties to agree whether or not they will permit the Expert to consider whether or not the position of the disputed boundary has been affected by estoppel, i.e. the actions of one party (or their predecessors in title) that may have caused the other party (or their predecessors in title) to believe that the boundary was in some other position.
Stages of the Expert Determination
1. Obtain Agreement of parties to Expert Determination.
2. Submission to the Expert, by both parties, of documentary evidence.
3. Site meeting for the Expert to:
a. view physical evidence, and
b. make a land survey of the physical features.
4. The Expert will (if he deems it necessary) obtain further evidence :
a. by requisition from one or both parties, and/or
b. by direct acquisition of e.g. historical aerial photographs;
5. The Expert will analyse evidence against land survey and draw a Determined
Boundary Plan, which constitutes the Expert's Decision.
6. The Decision is implemented when:
a. the parties accept and sign the Determined Boundary plan, and
b. Land Registry accepts the Expert's Application to Determine the Exact Line
of the Boundary, following which
c. Jon Maynard Boundaries Ltd will render a final account.
A decision made by an independent expert regarding the matter in dispute that is legally binding on the parties.
The same process can be used to settle a dispute as to the extent and width of a right of way.
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