A new protocol for resolving boundary disputes
Author: Lucy Shepherd and Kate McCall
Applies to: England and Wales
A Protocol for Disputes between Neighbours about the Location of their Boundary - or the Boundary Disputes Protocol - has been written and issued by senior members of the legal and surveying professions.
It is accompanied by guidance notes and is intended to apply to both residential and commercial properties.
The protocol is not new law and compliance with it is voluntary. It aims to provide a structured process whereby neighbours exchange information according to a set timescale, to enable the ready resolution of disputes and keep costs to a minimum.
- The protocol recommends this basic structure for handling disputes:
- The exchange of information by the parties within two weeks of the dispute arising;
- The assembling and disclosure of all accumulated information, to include past conveyances, photographs and so on within a further two weeks;
- Discussion, or an alternative method of resolution such as negotiation or mediation, within a further six weeks;
- Failing resolution, the appointment of single experts, or a single joint expert, within a designated timeframe followed by the exchange of expert reports; and
- A final consideration of whether the dispute can be resolved directly between the parties or by an alternative non-litigious method before proceedings are issued.
The protocol also contains guidance in the event that any party should claim adverse possession and advice about how to document any agreement reached.
There are some aspects of the protocol that raise concerns about how effective it will prove to be:
- It is said to be drafted in "readily understandable prose" with the intention that it should be accessible to those without legal training. Some legal terms are explained in the accompanying guidance but the language used is still fairly complex, making it less user friendly to a person who is not a property professional;
- A person who is not a property professional may not become aware of the protocol at an early enough stage of a dispute, by which time positions may have become entrenched;
- The protocol is intended to help parties to resolve a dispute between themselves but it recommends that the process is "supervised by properly qualified professionals" - why?
Boundary disputes bill
As a separate initiative, a private member's bill is seeking to curtail the number of boundary disputes coming before the courts. The Property Boundaries (Resolution of Disputes) Bill is currently on its second reading in the House of Lords and provides for a notice and expert determination procedure akin to that under the Party Walls Etc Act 1996. If the bill is made law, it will mean that a claimant will only be able to claim its costs of proceedings to resolve a boundary dispute where it has first followed the procedure set out in the bill.
Some commentators in the legal profession have raised concerns about the compulsory appointment of a surveyor as expert under the bill. Often, boundary disputes necessitate the interpretation of archaic conveyances and other legal documents as well as, or even instead of, measurements on the ground. There is nothing in the bill which provides for a legally qualified person to be involved and it does not allow for alternative methods of dispute resolution which may be more amicable and cost effective than expert determination by a surveyor. It is hoped that these points will be raised during the bill's passage through Parliament and amendments made.
Boundary disputes often entail disproportionate time and expense being spent by parties and their advisers, arguing about a small piece of land. Disputes take place in close quarters and the stress and personal tone of them can mean that the most reasonable of people can become embroiled in hostile exchanges and lose a sense of perspective over what is at stake. So, for all its minor faults, the protocol is to be welcomed in its attempt to provide a structure by which neighbours can save themselves unnecessary cost and upset and, in doing so, free up much needed court resource.
The protocol can be read here: The Boundary Disputes Protocol
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.