Residential Property Disputes

A wide range of factors can contribute to a boundary dispute between two parties. These factors can be categorised as either legal/technical issues or personal issues.

The circumstances which give rise to a dispute are often identified as a result of investigation into property extent, following a trigger event for example:

• changes in ownership of a property;
• extension and improvements to a property;
• repair or construction of boundary features such as fences;
• replacement of boundary features such as hedges being replaced by fences;
• change to the position of physical features over time, for example plant and tree growth which impacts on the boundary line.

Other circumstances which give rise to disputes can be caused by personal issues between parties, for example:

• the change to boundary extent as detailed above (perceived as stealing land);
• neighbour antipathy (jealousy, existing issues between the parties not directly related to the boundary at all);
• greed – bullying of neighbours by owner or developers to gain extra land.

Legal issues that can lead to boundary disputes include:

• a lack of adequate evidence to confirm the physical location of the boundary, coupled with an unwillingness of the other party to accept assertions without this substantiation;
• problems caused by changes in physical features;
• a lack of clarity in the available documentation and consequential differences in interpretation or understanding of title deeds and plans;
• different methods of mapping, such as Ordnance Survey maps which causes confusion with identifying the precise boundary;
• badly prepared title deeds showing an inaccurate position for a boundary;
• errors in conveyancing;
• errors in Land Registry;
• developers seeking to maximise plots; and
• claims relating to adverse possession.

Often boundary disputes are complicated by the relationship between neighbours, such as the following:

• Antipathy and jealousy on the part of an adjoining neighbour
• Greed of the owner/developer to extend onto a neighbour’s land, by use of bullying tactics
• An ongoing disagreement, unrelated to the boundary (i.e. noisy neighbours, pet issues etc), where boundary dispute is used as a weapon between neighbours

In personal disputes there is often a greater unwillingness to compromise or accept an adverse ruling, which leads to much more time and cost being expended (on appeals or enforcement proceedings for example) before a conclusion can be reached.
Many disputes are triggered by personal issues.

Not all disputes develop beyond initial complaints or need legal advice. However if the dispute has a legal issue or cannot be resolved between the parties, legal recourse is likely to be necessary.

There are a number of possible ways of resolving any disputes that do escalate, for example:

• Mediation – this may form part of formal litigation, but can be entered into voluntarily and be entirely unconnected with any litigation which may follow, should no resolution be found.
• Arbitration or Expert determination – where advice is sought from experts in the field of boundary position.
• Application to Land Registry – if both parties agree, the Land Registry can identify the position of a legal boundary and make it apparent from the register that the boundary has been determined. Should either party object to the application, Land Registry must refer the application to the Land Registration Division to be decided in a hearing by a tribunal judge. However, on a determined boundary application the Tribunal can only confirm that the boundary line contended for by the applicant is right or that it is wrong. For this reason, the process is rarely used these days.
• Private negotiation or concession – talking informally to the neighbour which if successful will result in dispute resolution agreement out of court.
• Litigation – This takes place either in the County Court or High Court (depending on value but usually County Courts). Litigation can commence prior to any discussions with the other party, or following unsuccessful dispute discussions (such as those detailed above).

Sometimes matters can be resolved and settlement reached after proceedings have begun but before the case comes to trial, thus avoiding very high costs and a bitterly contested dispute. However, where a dispute cannot be resolved cases will be decided by court judgment. Once beyond appeal, this judgment will be final.

Some disputes are resolved by one party or the other simply giving up. This may be due to lack of resources, or where the other party is significantly more “powerful” which can be intimidating and threatening.

If you have been unlucky enough to have had a dispute with a difficult neighbour, then you are obliged to declare this on the Seller’s Property Information Form (or SPIF) which your solicitor will send to you to complete when selling the property.

If you do not disclose this dispute when you should have, you could be liable for damages to the value of the difference between the value of the property with the property dispute and the value without it. This can be a substantial sum.

A restrictive covenant is a contractual agreement, usually included in the deeds to property, which is imposed by the original landowner and stipulates the constraints of the sale regarding the usage of the land.
This covenant applies to the first and any subsequent owners of the land/property, until the covenant is released from the deeds. It is usually applied to land sales, where a portion of a larger piece of land is being sold. The covenant is applied in the deeds of the land which has been sold, to ensure the remaining adjoining land is not compromised by the current or future intentions for the use of the remaining land.

If that neighbour is the original landowner who drew up the covenant (or his successor), they can enforce the original contractual agreement made between the original contracting parties on subsequent owners of the land/property, as stipulated in the deeds.

Restrictive covenants may:

• limit possible uses of the land, for example, the land can be used for residential purposes only;
• prohibit particular trades or businesses being run from the property;
• forbid undesirable activities or potential nuisances;
• restrict the number or type of buildings that can be erected on the land;
• restrict the size or height of any buildings; or
• require observance of a building line.

Where the proposed use of land would breach a restrictive covenant, the affected property owner could consider:

• negotiating its release with the beneficiaries of the covenant;
• taking out indemnity insurance;
• making an application to the Upper Tribunal (Lands Chamber) for the modification or discharge of the covenant; or
• seeking a court declaration on whether, and how, the land is affected by the covenant, and its enforceability.

• Informal negotiation with the disputing neighbour – The easiest way to resolve any neighbour dispute, is to try and resolve it informally by talking or writing to the neighbour to determine and discuss issues in order to reach agreement.
• Mediation – If informal negotiations do not work, mediation is an option to consider. A trained, impartial mediator (available via a mediation service) will facilitate any discussions and hear both sides of the story. They can make a recommendation as to what should be done to resolve the dispute. Mediation will acquire a fee but if it is successful will negate the necessity to incur substantial costs by going to court or seeking legal advice.
• Commencement of court proceedings. If all else fails it may be appropriate to seek legal advice and commence court proceedings. However, taking court action is very expensive and if you take your neighbour to court, it will ultimately damage your relationship with them.

If your neighbour is a tenant, it may be appropriate to discuss the dispute with the person who owns the property (the landlord).

If the dispute is unfounded, a private landlord has the right, should he deem it necessary or appropriate, to apply for repossession of the property from the tenant on the basis that the tenant has been a nuisance to neighbours.

The Party Wall Act 1996 provides a dispute resolution procedure to not only give the rights to the builder of a property to carry out works, but to protect the interests of the adjoining property owner in the event of a party wall dispute.

A party wall surveyor will assess the works, paying particular attention to the disputed boundary wall issue. In order to resolve the issue, it may be necessary to grant a Party Wall Award to the adjoining property owner.

The surveyor’s costs cover the following assessments:

• The rights of the building owner to carry out the works.
• How and when the works are carried out and the time expected for the works to complete.
• The access rights of the adjoining parties.
• Any issues regarding the erection of scaffolding, if relevant to the build.
• Any other matters incidental to the dispute.
• The value of any Party Wall Award, if granted.

The building owner (as the person who is undertaking the building works) who has engaged the Party Wall surveyor will pay their costs and any award costs. However, if the proposed works includes an element of maintenance or repair to the party wall, which will benefit both parties, that element of the Party Wall Award costs may be divided fairly between the property owners, dependant on the build assessment, who caused any disrepair and who will benefit most from the repair.

From completion of a sale, it usually takes four to six weeks to complete the legal processes involved in registering the transfer of title to the new owner.

An easement is a right benefiting a piece of land (known as the dominant tenement) that is enjoyed over land owned by a third party, often the neighbouring land (known as the servient tenement).

An easement cannot be sold separately. It passes with the land when it is transferrred.

It is possible, although rare, to lose a right to an easement. An easement may be lost by one of the following ways:

1. Abandonment – where it has not been used for a significant period of time and it can also be shown that the owner of the dominant land had a fixed intention not to use the easement in the future.
2. Alteration of the dominant land – where the dominant land has been developed and the easement was only ever granted for a specific purpose.
3. Unity of ownership – where the dominant and servient land is owned by the same party.
4. Express deed of release agreed between the parties.

If the right is created by deed then it should expressly state who is responsible for repair and or contribute towards the costs of repair. In the absence of any written terms, neither the dominant or the servient land owner have to maintain a right of way. The user of the easement does have the right to go on to the servient land and undertake necessary maintenance but not to make improvements.