Resolution Methods

Jon Maynard Boundaries Ltd, Boundary Demarcation and Disputes, Rights of Way, Expert Witness, Chartered Land Surveyor

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Boundary Dispute Resolution Methods

  You are here:    Boundary Problems | Resolution methods
Methods for resolving disputes
Consider the cost effectiveness of the resolution method
Amicably negotiating with your neighbour
Amicable use of expert advice
Resolution using solicitors
Alternative Dispute Resolution
ADR - Mediation
ADR - Expert Determination
ADR - Adjudication and arbitration
RICS Neighbour Disputes Service
Litigation
Court - Adjudicator to Land Registry
Court - County Court
Court - High Court

 

Methods for resolving disputes

There are many ways in which you may settle a boundary dispute:

Amicably:

  • by informal agreement between you and your neighbour;
  • by taking the advice of a jointly instructed expert in Boundary Demarcation and Disputes;

Alternative Disputes Resolution:

Alternative Disputes Resolution, or ADR, is a term used to describe a range of formal methods for resolving disputes that fall short of taking the matter to court, the results of which a court of law would be inclined to uphold should a disgruntled party insist on taking the matter all of the way to a court hearing.

  • Mediation;
  • Expert Determination;
  • Adjudication;
  • RICS Neighbour Disputes Service

Legal Action: or litigation

  • Adjudicator to Land Registry;
  • County Court;
  • High Court.

In general terms, methods higher in the above lists will cost you less than methods lower in the list. This raises the issue of the cost effectiveness of the method that you use for settling the dispute.
 

It is worth seeing what two Appeal Court judges have to say about resolving property disputes: in the case of Oliver & Another -v- Symons & Another this was a dispute about a right of way rather than a boundary, and it was heard in the Court of Appeal in January 2012.

Lord Justice Elias
"This is a dispute about the extent of a right of way on farmland in County Durham. The disputed part of the right of way is little more than 100 metres in length. The costs of the litigation are enormous and wholly out of proportion to the practical importance of the issue: the appellants alone have expended in the region of £150,000.00 for their costs. This is a case which was crying out for mediation, even assuming that it could not have been settled more informally than that. It ought never to have come near a court ..."

Lord Justice Ward
"I also agree. I wish particularly to associate myself with Elias L.J.'s pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come."

 

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Consider the cost effectiveness of the resolution method

According to Wiktionary, cost effective is an adjective meaning "Returning a benefit that justifies the initial investment". The benefit to an aggrieved landowner is the return to his possession of the land that he believes is his. The initial investment is the total cost of achieving a settlement of the boundary dispute.

So what is the value of the disputed land that is the focus of the dispute?

Back in 2000, when I first wrote the Boundary Problems web site I stated that the value of development land was then about £60 per sq ft or £600 per sq m. Thus, if a neighbour replaced his fence such that he took a triangle of land 10 metres (33 ft) long by 200 mm (8 ins) wide at its thick end, you would be disputing a piece of land having an area of 1 sq m. You might, in 2000, have thought that was worth £600, and you will be wondering what it is worth in 2010. I am not going to tell you because this method of valuing land is based on the false premise that someone, other than you and your neighbour, might be interested in purchasing that land.

So, the standard method for valuing the disputed land is to ask a chartered valuation surveyor to value your property as it stands, and to re-value it on the assumption that you are able to repossess the disputed land. The difference between the two valuations is the value of the disputed land. The exercise may be checked by making similar valuations of the neighbour's property. The result of the four valuations is usually that the ownership of the disputed land does not affect the value of either property - the disputed land has no measurable value.

 

If the benefit to be gained from a resolution to the dispute has no monetary value then it stands to reason that the resolution method must also cost nothing if it is to be cost effective. This logic suggests that all boundary disputes should go unresolved. But surely, as this would allow any bully to prevail over a weaker neighbour, this would be a recipe for anarchy?

It is therefore necessary to make a decision as to how much money should be set aside to defend a principle that has great emotional value but no monetary value. The choice of resolution method should be based on such an evaluation.

As a general guide to the costs involved in resolving a boundary dispute, let me give the following examples.

The Royal Institution of Chartered Surveyors offers the RICS Neighbour Disputes Service as a hybrid expert determination / mediation service. The cost (in December 2009) is £2435 plus VAT plus any legitimate expenses incurred by the surveyor. The fee may be paid jointly by the parties, or wholly by just one party. Note that this service involves only one professional, a chartered surveyor, appointed jointly by the disputing neighbours; there are no solicitors or barristers involved and the overall cost of the dispute to the client/s is thus kept low.

By comparison, in 2003, two neighbours took their case to the county court. Each represented themself. Each asked their own chartered surveyor to attend court to give expert evidence. Whilst each had taken some kind of legal advice, there were no solicitors or barristers present in court. Even so, the two parties had between them spent £20,000 on resolving this case. Moreover, the Judge exercised his discretion to award costs to the party in whose favour he found, so that the loser was £20,000 worse off as a result of this case.

In 2005 two other neighbours took their dispute to a different county court. These two neighbours each used London barristers, one of them used a London solicitor, the other a local solicitor, and they each used the foremost expert witnesses. Between them they spent some £140,000 on resolving their case.

 

Having read these examples, you will conclude that the only way to avoid spending serious amounts of money is to amicably negotiate directly with your neighbour. The RICS Neighbour Disputes Service is probably the least costly way of obtaining professional help that stands a chance of settling the dispute, and even this will cost upwards of £3,000.

All too often, amicable negotiation will not be possible. If this is the case then it will be necessary to evaluate the different resolution methods available and to decide which method is likely to find acceptance by your neighbour: this means both acceptance of the method as a viable means of resolving the dispute and acceptance of the outcome. And so you have to take account of your neighbour's views on how to work toward a resolution of the dispute and cannot simply steamroller through a settlement in your own favour on the presumption that your neighbour is a rogue and a scoundrel.

 

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Amicably negotiating with your neighbour

There need be no formalities at all surrounding an amicable settlement of your dispute. However, you and your neighbour would be wise to learn about boundary demarcation and land registration and to apply that learning to the circumstances of your own case before taking any action to resolve the dispute.

You should also give some attention to the implications of the proposed outcome and to a means of recording that outcomne in order to prevent the dispute arising again at a later date. Remember that where the description of a boundary in the title deeds is unclear the law allows two adjoining landowners to agree the position of their common boundary for the purpose of clarifying that description. You may therefore ask Land Registry to note on the title registers the boundary agreement that you and your neighbour have made. However, Land Registry will be unwilling to note the agreement if they feel that the effect of the agreement is to transfer the land from one party to the other rather than to clarify the boundary description.

If you want greater precision in your boundary description then you will want to apply to Land Registry to determine the exact line of the boundary. This is a misleading title for the service, as it is up to you and your neighbour to decide precisely where the boundary runs and to engage a suitably qualified surveyor to prepare the necessary plan and description for you.

 

Amicable use of expert advice

Rather than learn about boundary demarcation and land registration for yourselves, you and your neighbour may prefer to engage an expert in boundary determination and disputes and to put his knowledge and accumulated experience to work for you. Jointly instructing a single expert will both reduce costs and reduce the risk of confrontation between you and your neighbour. A suitable expert will also be able to prepare an agreed boundary plan for noting by Land Registry on the registers of your respective titles and to advise when it would be preferable to apply to Land Registry to determine the exact line of the boundary.

 

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Resolution using solicitors

When faced with a boundary dispute, many landowners turn first to a solicitor for legal advice. After all, land ownership is a legal matter. Hopefully, they will instruct a solicitor who specialises in property law, neighbour disputes, or property litigation, rather than using a generalist. Having discussed the problem that the client is facing, most solicitors will suggest that they write, on their client's behalf, to the neighbour with a view to setting matters right.

Many other landowners, when they receive a letter from their neighbour's solicitor alleging some infringement over the boundary, will also consult their solicitor. Their solicitor will usually suggest that the neighbour's claims are rebutted.

Thus begins a series of correspondence with ever increasing allegations and demands made by both sides. Whilst the initiating solicitor, and quite possibly the responding solicitor too, intended to resolve the dispute through the exchange of correspondence, the result is usually a greatly increased level of confrontation that places the two neighbours further apart than they were at the beginning of the dispute.

Up to this point, many solicitors will not have considered recommending to their clients that they jointly instruct an expert in boundary demarcation because an expert represents an expense that they were hoping to avoid. But by now the solicitors will have incurred significant fees, and the dispute will have become so heated that the solicitors are not going to be able to resolve it without outside assistance. And because the dispute is so heated, neither neighbour will agree to a joint instruction, so the cost of expert opinion is doubled as each party appoints its own expert.

In some cases I have known the solicitors to each seek Counsel's Opinion (i.e the advice of a barrister) on the legal strengths and weaknesses of a client's position before they suggest appointing an expert to advise on the true position of the boundary as indicated by the deeds and by any relevant extrinsic evidence. Perhaps this is because the solicitor doesn't know any trusted experts who can advance everyone's understanding of the boundary (or of other pertinent issues). In my view it is essential to consult an expert prior to consulting a barrister, as barristers need an expert's interpretation of the evidence before they can assess the strengths and weaknesses of the legal arguments that may be appropriate to the particular case. Sometimes, expert opinion may be all that is needed to resolve the dispute. And, surely, experts charge less than barristers?

If they are unable to achieve a settlement of the dispute by their own efforts, some solicitors will suggest, whether or not they have obtained expert's and counsel's opinion, that the clients engage in one form or other of Alternative Disputes Resolution (ADR). A good solicitor will suggest this at an early stage, thereby keeping his fees as low as possible. ADR methods are discussed below.

Other solicitors may suggest that the dispute is taken to court to be tried: they may be forced to do this if ADR has been attempted and has failed to result in a settlement of the dispute. Courts are discussed below.

It is when litigation is unavoidable that solicitors come into their own. A property litigation solicitor will manage and be the focal point for all communications relating to your dispute. He or she will advise on all the documents you will need to obtain to support your case, and will be able to instruct an expert (if you haven't already instructed one yourself) and a barrister on your behalf.

 

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ALTERNATIVE DISPUTE RESOLUTION

An excellent briefing doument about ADR has been prepared by Herbert Smith LLP and may be viewed at their web site. Readers of it should be aware that it is written for a wider audience than merely those who have a boundary dispute, but it does highlight and outline the different ADR methods available. It is recommended that you read it before continuing down the present page.

 

ADR - Mediation

Mediation should be the ADR method of choice because it is the only dispute resolution method that leaves the decision making entirely with the parties. The mediator's role is to be a facilitator and this role includes no decision-making powers.

It is important that the mediator has a background in property law. Although the focus is on the interests of the parties rather than on the legal rights alone, it would be unfortunate if the agreement that results from the exercise took no account of the law.

A good mediator will limit the tendency of either party to use the mediation as a means of unloading their grievances and will focus the parties on moving towards a settlement of the dispute. It is perfectly possible for a boundary dispute to be settled in a single day of mediation.

For a fuller explanation of how mediation works, albeit one written with solicitors in mind, please see What is mediation? A guide for your client on the web site of Hesketh Merdiation Services. A shorter explanation of how mediation can work well in a boundary dispute can be found at How to resolve boundary disputes without breaking the bank page of the same web site.

 

ADR - Expert Determination

If the outcome of an Expert Determination is contractually binding on the parties then it stands to reason that the parties need to identify an expert who really knows what he is doing.

  • At one end of the scale is the "property professional" who thinks that boundary disputes are a property matter that he can deal with, when in truth he is able only to dabble in things he doesn't know a great deal about.
  • Somewhere in the middle of the scale is the pundit who relies on training and past experience to give what can only be described as an "opinion".
  • At the other end of the scale is an expert in boundary demarcation and disputes who is prepared to thoroughly study and analyse the documentary and the physical evidence and to draw conclusions based upon his analysis of the evidence in a manner reminiscent of a forensic scientist.

It should go without saying that it is the last of these three kinds of expert that you require for your expert determination. But how do you find out if the expert you are approaching fits into that category?

  • Firstly, ask the expert what percentage of his annual workload comes from acting as an expert witness in boundary demarcation and disputes. It should be a high percentage if the expert is to have credibility in your eyes.
  • Secondly, ask the expert for the names of any solicitors or barristers who can vouch for the standard of his work. Then telephone those solicitors and/or barristers and take heed of what they say.

 

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ADR - Adjudication and arbitration

These are methods that are sometimes cited as being an appropriate way to resolve a boundary dispute. However, neither seems to be the case.

Adjudication is more usually set up by a particular industry as a quasi-judicial method of resolving the kinds of dispute that dog that particular industry. Boundary disputes usually involve neighbouring landowners who work in different industries from each other, and their dispute has no direct relevance to the industry in which either of them works.

Arbitration is often included as a clause in a contract between two parties who enter into a business relationship with each other: its purpose is to provide the parties, in the event of a dispute, with a resolution mechanism avoiding the need to take the matter to court. Next door neighbours do not have a contractual relationship with each other, so it is hard to see how arbitration might be applied to a boundary dispute.

Adjudication and arbitration have the disadvantage of taking the decision making process out of the hands of the parties to the dispute, in much the same way as referring the matter to a court of law does. Surely, mediation is a more appropriate method for resolving boundary disputes? If the parties are so entrenched in their views that mediation is impossible, then determination of the position of the boundary by an expert in boundary demarcation is far preferable to leaving the matter to an arbitrator or adjudicator who has little or no knowledge of boundaries and of property law.

 

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ADR - RICS Neighbour Disputes Service

RICS (the Royal Institution of Chartered Surveyors) offers a service that is a significantly cheaper and quicker alternative to the courts. The RICS Neighbour Disputes Service is a hybrid ADR that offers a three stage process of Expert Evaluation, Negotiation and Compromise, and Expert Witness Reporting. The parties have the option of settling at the end of either the first or the second stage, with the option of having the expert prepare a report in the event that settlement is not achievable and that the parties wish to proceed to litigation.

 

LITIGATION

To litigate means to go to law or to be party to a lawsuit. In other words, to seek to settle a dispute by means of the decision of a judge handed down in a court of law.

Before deciding to litigate, a landowner should consider what it is he aims to achieve by the process. If his expectation is to receive justice, perhaps to punish his neighbour for perceived wrong-doing, then he will be disappointed. A Judge will view the trying of a boundary dispute as an exercise in resolving a civil dispute between neighbouring landowners who are incapable of resolving the dispute themselves and who have tried and failed to resolve the dispute by means of one or more of the methods outlined above.

The Judge is normally interested only in establishing the position of the disputed boundary on the basis of the evidence presented to him and on the legal arguments put to him. The behaviour of either of the parties during the course of the dispute that has been brought before him is not a deciding factor in establishing the position of the boundary.

The landowner who wishes to resolve his boundary dispute through litigation should also be aware that whilst he himself sees the dispute as a matter of overridingly important principles, the judge may think differently. The judge is going to think of it as a very expensive court procedure being used to settle a dispute over a very small piece of land whose inclusion within or exclusion from either property has little or no bearing on the value of either property. In other words, the judge will consider the trial as a very expensive fight over the ownership of a very small piece of land that has no monetary value. In such circumstances the judge is unlikely to show any sympathy to the principles to which one or other of the parties clings so dearly.

There is a school of thought among the judiciary that a trial in a court of law is not the most appropriate means of resolving a boundary dispute. Accordingly, there are instances where a case has been brought to court without the litigants first attempting an alternative method of dispute resolution and where the judge has directed at a pre-trial hearing both:

  • that the parties must first attempt ADR;
  • and that if they fail to resolve the dispute by such methods and if the matter is brought back to the court, then the judge will exercise his discretion and make no award of costs (usually, the winning party may ask the court for an award of costs, which the losing party must pay, to compensate them for the expense they have been put to, expense that would have been avoided had the losing party conceded at an earlier stage).

Such a direction is clearly intended to encourage the use of ADR in preference to a court.

Once the boundary dispute reaches court, how is the position of the boundary determined?

In the best traditions of adversarial trials, each party:

  • will be represented by a barrister (to advance the legal arguments in his client's favour),
  • will have instructed an expert (to give an idependently derived professional opinion - which is not prejudiced in favour of the client who is paying his fees - as to certain matters of evidence), and
  • will produce a stream of witnesses of fact (who will attest, without commenting or forwarding an opinion on them, to certain facts that are relevant to the case).

Thus there are six streams of information being channelled towards the judge, who has to try and make sense of them all, balance one against another, decide what is relevant, what is erroneous or misleading, and come to a Judgment. In any given case it is difficult to predict which legal argument will prevail, which expert's opinion is to be preferred, or whether one of the witnesses of fact will produce a piece of evidence that outweighs everything else before the judge. For this reason, boundary disputes have a reputation for unpredictable outcomes, to the extent that some lawyers describe them as a lottery. This unpredicatability is another factor that the would-be litigant should consider before deciding to take his boundary dispute to court.

The court has discretion to direct whether or not expert evidence is to be admitted. The courts also have discretion to direct that the parties appoint a single joint expert (also known a joint sole expert), but such a direction is not usually given if the parties have each already instructed their own expert. Using a single joint expert reduces from six to five the number of information streams that the judge has to consider. But this does not make the outcome of the trial any easier to predict.

The parties, of course, have the right to litigate in person. Whilst this will remove one or both of the barristers from the court room, it does not reduce the number of information streams directed at the judge. In fact, it makes the judge's job harder as he has to make allowance for the fact that litigants in person will be less familar with the law and with court procedures than are lawyers (be they barristers or solicitor advocates).

What factors will a judge consider during a boundary dispute trial?

  • Statute Law. This will not tell him where the boundary is located but it will specify the legal framework within which his Judgment may be made.
  • Legal Precedent, also known as case law. The judge will want to know whether the circumstances of the case before him match those of any other case that has been tried within the same jurisdiction (or within other jurisdictions that adhere to similar legal principles). The barristers will of course bring to the judge's attention any cases that they feel are similar.
  • One thing the judge is most unlikely to consider is the position of the general boundary shown on Land Registry's title plans for the parties' respective properties. To understand why, you need only read the Joint Statement made by Land Registry and Ordnance Survey.
  • The legal boundary by paper title is the obvious starting point for any boundary dispute trial. It is the job of the expert witness to interpret the original title deeds onto the ground so as to provide a professional (not legal) opinion as to its position.
  • It is often the case that the description of the boundary in the original title deeds (i.e the first conveyance relating to the parcel of land) is ambiguous. Given that the boundary was created by the vendor who first sold the parcel of land, and that the conveyance is an expression of the original vendor's intentions, the judge may wish to deduce (with help from the barristers, and/or the experts, and/or the witnesses of fact) what those intentions were.
  • In an attempt to uncover the original vendor's intentions some judges will admit extrinsic evidence, such as contemporary documents (maps, planning drawings, photographs and aerial photographs).
  • Sometimes it is necessary, for lack of contemporary extrinsic evidence, to use more recent extrinsic evidence to identify the position of the legal boundary by paper title. Such evidence may include the subsequent actions of the owners of the land to either side of the disputed boundary. Some judges have taken such evidence into account whilst other judges have ruled it irrelevant to an an understanding of the original vendor's intentions (see Solicitor's Journal, Vol 154 No. 27, 13 Jul 2010, pp 13, 14).

Having established the position of the legal boundary by paper title, the judge will want to consider whether its position has been modified by any subsequent action or process, such as:

  • an agreement, or a purported agreement, (whether written or verbal) as to the position of the boundary that may have been made by the litigants, or between their predecessors in title - the court would normally uphold such an agreement.
  • estoppel
  • adverse possession

If a potential litigant thinks he has a strong case and that nothing can stop him from winning, he should carefully review the two bulleted lists preceding the present paragraph. It should become clear to him that any one of the items on either of the above lists is capable of derailing his case. Little wonder then that litigation over a boundary dispute is sometimes described as a lottery.

It is perhaps useful to reiterate the principle points that should influence would-be litigants.

  • Civil courts do not seek to dispense justice: they seek to resolve civil disputes;
  • To take a boundary dispute to court is to conduct a very expensive argument over something that the court will see as having little or no monetary value, and judges may be unsympathetic towards the parties in such cases;
  • Courts are known to try to encourage the parties to resolve their disputes by methods other than litigation in court;
  • The outcome of a boundary dispute trial is notoriusly difficult to predict;
  • The award of costs in favour of the "winning" party is not automatic.

 

The present description of the litigation process has been written from the point of view of an expert witness. Whilst it contains information that is undoubtedly helpful, there will be plenty more that a would-be litigant will wish to know that an expert witness is unable to tell him. To find out more about the process of litigation, a would-be litigant should consult a solicitor who specialises in property litigation.

 

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In the context of a boundary dispute there are three courts to which the parties may turn.

 

Court - Adjudicator to Land Registry

Don't be fooled by the name of this court. It is not a part of, and is completely independent from, Land Registry. It is a part of the Tribunals Service of the Ministry of Justice.

The Adjudicator to Land Registry was created by the Land Registration Act 2002 to resolve disputes about registered land in England and Wales. These disputes may be referred to it by Land Registry, or members of the public may apply directly to the Adjudicator.

The Adjudicator is an independent judge. Hearings in front of the Adjudicator or one of his Deputy Adjudicators (there are over thirty of them) may take place either at their headquarters in London or at some court room (for example, a Magistrates Court, a County Court, or a Crown Court) located more conveniently near to the properties that are subject to the dispute. Hearings are normally conducted less formally than in a County Court.

You can find out more at the web site of the Adjudicator to HM Land Registry

 

Court - County Court

A diagram showing the Court Structure of Her Majesty's Courts Service (HMCS) can be found on the HMCS website.

The HMCS website informs us that: "There are 216 county courts dealing with the majority of civil cases, as well as some family and bankruptcy hearings. A large number of cases come before the county courts and it is here that all but the most complicated civil law proceedings are handled."

Because of the large number and widespread distribution of County Courts, the majority of the boundary disputes cases in England and Wales are dealt with at a County Court.

Further information about the County Courts can be found on the County Court page of the HMCS website, where the emphasis is placed on cases of debt repayment.

 

Court - High Court

According to the The Royal Courts of Justice page of the HMCS website, "The High Court deals with higher level civil disputes." The High Court is located at The Royal Courts of Justice in the Strand in London.

 

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