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Boundary disputes: back again

Posted on 27 January 2020

On 15 January 2020, the Earl of Lytton presented the Property Boundaries (Resolution of Disputes) Bill 2019-20 for a first reading in the House of Lords.

This private member's bill aims to make it easier and cheaper to decide boundary disputes by taking the job away from judges and giving it to expert surveyors. It is based on the procedure that already applies to party walls under the Party Wall Act 1996. In doing so, the Bill seeks to alleviate the courts, and the parties, from the considerable cost, time and effort typically involved in resolving such disputes.

The Bill has been refined over four previous iterations having been presented, ultimately without success, in the House of Commons in 2012 and by Lord Lytton in the House of Lords in 2015, 2016 and 2017. Lord Lytton is himself a chartered surveyor and was the original presentor of the Party Wall Act almost a quarter of a century ago.

The Bill provides that a single agreed surveyor, or two party-appointed surveyors and a third surveyor chosen by them, shall settle the precise location of the boundary and the extent any structure extends beyond it, in any boundary dispute:

  • Which is the subject of legal proceedings (such proceedings are automatically suspended by the Bill) or
  • Which is deemed by the Bill to arise when, prior to proceedings, the owner of land serves notice setting out the claimed boundary, on an adjoining owner who then objects to the boundary claimed or does not respond within 14 days.

The parties can circumvent this process by simply agreeing the boundary between themselves.

A decision made by the surveyor(s) is called an "award". Either party may appeal against the award within 28 days to the High Court. If there is no appeal, the owner of the land registers the award at the Land Registry. The new procedure would apply to disputes over private rights of way, as well as boundaries.

Laudable though the aims of the Bill are, there remain some concerns as to whether the Bill will achieve these aims in practice:

  • Boundary disputes can involve complex issues of law, such as the interpretation of legal documents, estoppel and adverse possession, as well as the technical points more commonly dealt with by surveyors. Law-heavy boundary disputes may simply be delayed and rise in cost if the parties have to go through an extra layer of pre-litigation expert determination before getting to the courts.
  • Boundary disputes tend to produce a clear winner and loser, in contrast to party wall issues, which may make them more likely to be subject to appeal, adding delay and cost to the resolution of disputes.
  • The Bill does not empower surveyors to deal in their awards with the consequences of finding that a building extends over a boundary. Therefore, if the parties cannot reach agreement about this, they will still need to go to court following an award.
  • Unlike the Party Wall Act on which the Bill is based, the Bill applies to freehold land only. This seems to unduly restrict the Bill as boundary disputes arise also between freeholders and long leaseholders.

If the Bill does progress this time around, there will be a lot to discuss before it becomes law.

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