22nd February 2017
There’s a fine line… Kate Andrews reviews the proposed legislation for the resolution of boundary disputes
The Property Boundaries (Resolution of Disputes) Bill (“the Bill”) has recently cleared its second reading in the House of Lords. The Committee stage – line by line examination of the Bill – has currently not been allocated a date. For further information you can track the progress of the Bill.
The Bill aims to make provision for the resolution of boundary disputes, such as the location of a boundary or private rights of way relating to the title of an estate in land.
The current system
Currently, boundary disputes are determined by the County Court or First-tier Tribunal (“FTT”). Proceedings are brought following either an application for adverse possession, first registration, rectification of the registered title or a declaration as to ownership of an estate. As disputes can be determined by either the County Court or FTT, proceedings can be brought in one, or both jurisdictions. However, proceedings are often brought in both jurisdictions. It is quite easy for costs to become disproportionate to the value of the land in question.
Property Boundaries (Resolution of Disputes) Bill
The Bill will create a new compulsory dispute resolution system similar to the Party Wall etc. Act 1996. Most disputes surrounding a boundary will be able to be determined by examining the physical features to establish a precise boundary. The owner of land who wishes to establish such a boundary will be required to serve notice on the adjoining land owner. If the adjoining landowner does not specifically consent to the boundary, then a dispute will have arisen. This dispute will be resolved by a surveyor who determines the precise boundary and the costs liability of the dispute. The findings of a surveyor are binding unless an appeal is made within 28 days to the High Court.
A criticism of the Bill is that the proposed compulsory dispute resolution system is essentially an expert determination of the boundary. The compulsory nature of the Bill is likely to lead to more complexity and higher costs, as an expert determination of the line of a boundary is not always suitable.
The central issue surrounding a boundary dispute is who owns the land. The Bill fails to address any legal issues that may impact on this, in particular claims relating to adverse possession. Ownership is decided taking into account all the evidence, whilst the Bill only deals with the transposition of a line on a plan to a line on the ground. By making this dispute resolution compulsory, it is feared that higher costs will be incurred as complex legal issues will still need to be determined. However, in situations where this type of dispute resolution is appropriate (it is questionable as to how many cases would be appropriate for this system), it is a welcome proposed change to the law.
We will let you know what happens at the next reading…
For further information, please contact the Real Estate Disputes Team at Hamlins.