As the old saying goes “An Englishman’s home is his castle”. But experience has shown that battles over land are by no means confined to the English, and nor are they an exclusively male phenomenon!
Few things are more universally guaranteed to provoke a bitter, lengthy and expensive feud than encroachments upon, or interference with the enjoyment of, a person’s home. Boundary disputes between neighbours – even over very small amounts of land - often become fiercely contested and ugly conflicts.
Whether it be a fence that encroaches over the boundary or overhanging trees, there is a multitude of sins that neighbours can commit which may result in all out warfare.
How do I determine where my boundary is?
This is a fair question which I’m frequently asked. It might be assumed that the answer is simple. If only that were true.
The starting point when trying to identify the boundary is to look at the title documents to the property. But, whilst most UK properties are now registered at the Land Registry, and therefore shown on an official filed plan, the vast majority of such plans will merely be ordnance survey map extracts where the scale (frequently 1:1250) is too small to be of any real use in precisely identifying where the boundary line is. At that scale, even the boundary line itself would be around a metre wide if scaled up to actual size.
Moreover, the plans only show the “general boundaries” and therefore cannot be relied upon.
Older properties might be identified on a larger scale plan, and so earlier title deeds are sometimes useful. The measurements of the plot might also be stated in the old title deeds, though frequently not with precision, and measurements followed by “or thereabouts” are often given.
Historical evidence, such as old aerial photos, or statements from long term residents in the area, is sometimes useful.
Rather than trying to prove that the boundary has always been where it is presently marked (e.g. by a fence or hedge, etc), it is sometimes easier to rely upon a long period of occupation of the land as giving rise to ownership, or the right to apply for it, by virtue of “adverse possession”. This is a complex area and the law changed in 2003 but, in summary, if a neighbouring owner can prove the right sort of continuous and exclusive possession of the land for long enough (12 or 10 years depending upon the period in question) they may have acquired, or be entitled to acquire, title to the land, even if it was not theirs in the first place.
As if not already complicated enough, relatively small boundary movements might also be shown to have occurred following an informal ‘boundary agreement’ between neighbours (even if not in writing). Equally, a person may be unable to challenge the position of a boundary, even though it can be proved to have been moved, if they are now “estopped” from doing so – on the grounds that their previous actions or inactions would make it unfair to now assert their true property rights.
Who owns the boundary fence, wall or hedge?
This is another common cause of disputes between neighbours.
On older title plans, and often on the newer site plans prepared by developers, it was common to find “T marks” on the boundary lines to designate who owned or was responsible for the maintenance of the boundary features. The base of a capital ‘T’ would be placed on the boundary line and the T itself protruded onto the land whose owner owned or was responsible for the maintenance of the boundary feature.
However, this is not an invariable rule and it is not uncommon to find that disputes have arisen because the original boundary feature has either changed ownership by agreement, or been replaced by a later feature which belongs to the other neighbour – e.g. where a hedge was planted next to the original fence, which was the feature marked with the T, but the fence has long since rotted away and only the hedge now remains.
It is a common misconception that the owner of a boundary feature has an obligation to maintain it. Whilst this may be the case – e.g. because the was a covenant requiring the owner to keep it in good repair - in the absence of such a covenant the owner does not have to maintain it or keep it in place.
For more information on this subject, please call Paul Davis on 0115 985 3483 or visit www.buckles-law.co.uk
In the second part of this exploration of boundary disputes, I will examine disputes concerning trees and hedges and methods to resolve them.