Boundary and Rights of Way Disputes – A Better Way To Resolve Them

20th September 2017

Without attracting much attention, a new piece of legislation that will improve the way in which we resolve boundary disputes is making its way through Parliament. The Property Boundaries (Resolution of Disputes) Bill looks set to come into force in the next couple of years and it moves the resolution of boundary disputes from lawyers to surveyors.

How the bill will work?

Once enacted and the relevant regulations put in place, parties to a boundary dispute will be strongly encouraged to either appoint a single surveyor or a panel of surveyors to resolve the boundary dispute for them. The surveyors must be members of either Royal Institute of British Architects, the Royal Institution of Chartered Surveyors (RICS) or the Institute of Civil Engineers and the bill requires the RICS to issue a Code of Conduct and regulations for surveyors acting on boundary disputes.

If the parties can’t or won’t choose a surveyor, the local authority will appoint one on the parties’ behalf, unless, of course, the local authority is one of the parties to the dispute. If this is the case, the Secretary of State will choose a surveyor.

The surveyor or panel of surveyors will then explore the dispute and make an award, setting out where, precisely, the boundary lies; details of any buildings or structures which break into an adjoining landowner’s property and who should pay the costs of the exercise. There will be a right of appeal against an award to the High Court but strict 28 day time limits will apply to the appeal. If no appeal is lodged within the timeframe then the decision of the surveyor or panel of surveyors is submitted to the Land Registry for the boundary line to be updated.

What are the penalties for not using the new procedure?

If a party to a boundary dispute goes straight to court without using the new procedure then he or she cannot recover any costs relating to the issue and service of the court proceedings against the other party. All proceedings in court and the Lands Tribunal to determine a property boundary will also be automatically stayed until the new resolution procedure has been used. A surveyor is likely to consider making an adverse costs award against a person who has gone straight to court without trying the new procedure.

Application to Rights of Way

The bill also covers disputes relating to the location and extent of rights of way. It will not apply to disputes about the location and extent of public rights of way (which will continue to be dealt with by the local authority under legislation such as the Countryside and Rights of Way Act 2000). Neither will it apply to disputes about whether a private right of way exists through long use (prescription). These issues will continue to be dealt with by the Land Registry and the Courts. However where there is a dispute about where a right of way runs and how wide the area over which the right of way exists, the new procedure of surveyor-led resolution will now apply.

What Needs To Be Resolved About the Bill

The bill still needs some polishing up and no doubt this will be done in the committee stages. For a start the bill currently only applies to freehold property and not long-leasehold properties. It would be a strange position indeed if the owner of a leasehold property with a 999 year lease had to continue to use the cumbersome court or Land Registry processes but a freehold owner could use the new process.

The bill imposes criminal sanctions on parties who prevent service of the boundary dispute notices but there are no criminal sanctions for a property owner who prevents the surveyor(s) from doing his or her job by inspecting the property. The bill states that the surveyor can be accompanied by a police officer but in the current climate of budget cuts accompanying surveyors on boundary dispute inspections is hardly likely to be a top priority at the local police station!

It isn’t entirely clear yet how the bill will work with existing rules and procedures relating to adverse possession or the acquisition of rights of way through long use at the Land Registry. The Land Registry already has established procedures for people who claim to have gained title to land by openly occupying it for more than 12 years or a right of way through long use. Many people who have a boundary dispute where the area involved is quite large, make an application to the Land Registry both for adverse possession and to have the boundary shown on the index map defined or altered. The bill has no provision as yet requiring that adverse possession or prescription claims are stayed if one of the parties invokes the boundary dispute procedure under the bill.

This could leave a situation where a surveyor is exploring a dispute and making an award about the precise location of a boundary whilst the Land Registry is determining whether adverse possession has taken place. If both decisions are consistent then this is not a problem but if the decisions are inconsistent then the parties will have further uncertainty and expense in trying to reconcile the two decisions.

On balance the new procedure outlined in the Property Boundaries (Resolution of Disputes) Bill is a very good thing. The bill cannot help parties who are in a dispute about what legal documents mean – a surveyor will not be able to determine the content of legal documents. However, it will assist those who are having difficulty in translating the boundaries or features shown or described in documents onto their land. This bill will reduce costs to parties in boundary disputes and should resolve them quicker. For those currently in a boundary dispute, depending on the relationships between the parties, it may well be worth agreeing to adopt the new procedure now. It will be several months at least before the bill is enacted – probably spring 2018.

If you wish to discuss any of the issues raised in this article please contact Rebecca Dixon, an Associate, on 01179743283 or rdixon@murrellassociates.co.uk author of the article.

The information provided in this article is for general information purposes only and does not constitute legal or other professional advice and cannot be relied upon as such. Any law quoted in this article is correct as at September 2017. Appropriate legal advice should be sought for specific circumstances before any action is taken. Copyright © Murrell Associates Limited, September 2016.

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