Boundary Disputes

The boundary dispute remains a feature of the litigation solicitor’s practise and even for mine in Sussex which, on the South Coast particularly, is home to a number of housing developments built long ago on formerly agricultural land.

The term “boundary dispute” covers a number of issues. The most common follows from a property owner doing work to his boundary by replacing a wall, hedge or fence and placing the new boundary in the wrong place thereby enclosing some neighbouring land and depriving the neighbour of the use of it.

It is essentially a matter of trespass. It ought to be easy to resolve. The neighbour who has been robbed of a piece of his garden has the right to issue a claim in the County Court for an injunction to prevent the trespass and to have the original boundary line restored. However, a number of factors can make this a lot less simple than it looks.

The first is that enclosing the land for a period of 12 years without complaint from the deprived neighbour can result in title to the “stolen” land vesting in the trespasser. The reason for this is that the Limitation Act 1980 (not the “Statute of Limitations” which so many people have adopted from too many American legal dramas) places time limits on making claims. For actions based on a deed the time limit is 12 years and after that period the dispossessed owner is time barred from making a claim.

The Land Registry, whose job it is to record and guarantee the legal title to property in England and Wales saw the problem with this and the Land Registration Act 2002 brought in a new regime. The person claiming title to the enclosed land must now apply to the Registrar after 10 years of adverse possession to be registered as the owner. Notice is given to the neighbour. If the neighbour is does not object the change to the title is made. If the neighbour opposes the change then the Registrar will reject it except in a limited number of circumstances and the dispossessed owner has his two years in which to issue proceedings before missing the limitation period.

It seems a gloriously simple way to prevent expensive disputes. The dispossessed owner gets a statutory reminder that time is running against him and can do something about it before the 12 years has expired. However, that is not the end of it.

A problem with which we are presently dealing relates to two properties on a Sussex estate. They were created after division of a bigger piece of land at the beginning or the last century. The deeds stipulated defining the boundary by the creation of a fence or other “party” division satisfactory to the owner. This would have been easy as a party fence or wall stands on the boundary line. In this case the boundary was marked by a hedge. Nobody agrees as to who planted the hedge or whether it was planted on the boundary or to the side of the boundary belonging to the person who planted it. The argument runs that in the latter event it would have been planted at a distance from the boundary so that it did not hang over and encroach on to the neighbour’s land but a hedge’s “line” will vary according to the time of year and the amount of trimming and maintenance. Certainty would be achieved as defining the boundary by its root line (particularly if the hedge was intended to be a “party structure” although it is not clear that the law recognises any such thing).

Add to this the fact that the dispossessed owners never appreciated that the enclosed land was ever at risk of an adverse possession claim and the dispossessor simply assumed that it was his so that neither made any application to the Land Registry and we see the problem. We have to go back to the original deeds with hand drawn plans which are not very clear and lack measurements, the content of the conveyances and, to top it all, various minor changes including replacement of parts of the hedge with fencing and the creation of a privacy screen some years ago which was apparently not intended to reflect the boundary.

The dispute is an expensive one. There will be arguments about the proportionality of the costs in relation to the value of the land concerned. Against that, why should a land owner lose a narrow strip of land amounting to 20 square feet in total simply because his neighbour thinks that he is entitled to it. Sometimes the size and value of the land is less important than the use to which it can be put such as access for maintenance.

We still have the idea of our homes being our castles deeply ingrained. There are often less than honourable reasons for trying to take a piece of next door’s garden such as non-compliance with planning regulations or a wish to enhance the size and value of the dispossessors garden. Boundary disputes will not be disappearing from the Court’s workload at any time in the foreseeable future.