Boundary disputes to be overhauled
Property Boundaries (Resolution of Disputes) Bill 2016
The Bill you may have heard about has recently stalled. What is it intended to do, and will it ever see the light of day?
Boundary disputes are often a symptom of wider personal disagreements between neighbours which culminate in disproportionately bitter, protracted and expensive disputes. In the absence of agreement boundary disputes are ultimately decided by a single judge in the County Court or in the specialist property tribunal. The tribunal alone receives approximately 1200 cases per year.
In 2012 the Property Boundaries (Resolution of Disputes) Bill (the Bill) was introduced in the House of Commons during the coalition government of the Conservatives and the Liberal Democrats to try to combat this growing problem.
The Bill was withdrawn following its first reading in the midst of other proposed reforms, such as the attempt to overhaul the House of Lords. However, it was reintroduced by the House of Lords in May 2016 and was expanded to cover disputes between neighbours concerning rights of way.
Progress of the Bill has been thwarted by the General Election in June 2017 and a date is awaited for the first committee consideration of the specifics of the Bill. However, if the Bill is implemented it will revolutionise the way these disputes will be concluded. The aim is to reduce the burden on the court and/or tribunal and to provide an alternative dispute resolution process based on expert surveying guidance.
The procedure set out in the Bill will be compulsory for all disputes where legal proceedings have already started. It will also cover cases not at that stage but where the owner wishes to establish the boundary position. Failure to use the Act will carry a penalty for non-compliance.
The Bill is modelled very closely on the Party Wall Act 1996. The owner first obtains a report with a plan showing their view on the boundary/right of way and provides this to their neighbour. If there is no response then there is deemed to be a dispute. At this point a surveyor is instructed, either one by each party or a single one jointly (in which case his fees would be split – a process which is encouraged in most cases to limit costs and encourage openness). If there are two surveyors, they consider each other's report and, if agreement cannot be reached as to the boundary then a third independent surveyor will be instructed. The third surveyor's findings are conclusive and can only be challenged if the opposing party appeals to the High Court within 28 days of the surveyor's decision.
The owner of the land must, within 28 days, submit the award to the Land Registry which will then be noted on both titles.
- The proposal places surveyors at the heart of the decision making process. Many surveyors are not legally trained and will not necessarily take in to account legal issues when reaching their conclusions. Complex legal questions are common in boundary cases, such as the impact of any adverse possession rights, estoppel or the enforceability of any previous agreements. This means there is likely to be inconsistency in the decisions. This may lead to an aggrieved party using the appeal route to the High Court, adding an extra layer to the process and ultimately more costs.
- As a result it is likely that solicitors will still be required to advise on the choice of suitable surveyors, the basis of their instructions and whether an appeal is prudent.
- Part of the aim of the Bill is to avoid adversarial adjudication of neighbour disputes. However, the process still requires a decision to be forced on both parties; the new procedure just places this responsibility on surveyors directly rather than a judge who is experienced in weighing up the evidence. Ultimately therefore surveyors will have to gain experience in this new process if it is to work in practice.
- The procedure will not deal with all disputes. The Bill is intended to apply to owners of land wishing to establish the position of their boundary against their adjoining owner. Both must be freehold owners so leaseholds will not be able to use the procedure – whether to ascertain the extent of their demise against a freehold owner or against any neighbouring freehold owner. The Bill will also not cover right of way disputes between parties who are not adjoining land owners.
Whilst reducing the time and expense of resolving neighbour disputes is laudable, and this approach may very well encourage settlements, it will take some time to change perspectives and is unlikely to reduce significantly the number of disputes. In any event, the progress of the Bill is limited as political focus is on key issues like Brexit. Unless the parliamentary will is found to push this Bill through, there is little chance of it becoming law before the next election.