Arguments over a right of way or access, someone claiming land that does not belong to them on paper, or returning from a holiday to find your fence has been moved; are just some of the property and boundary disputes which can escalate into full blown litigation cases. Litigation cases can cost thousands of pounds and cause a huge amount of stress if not managed carefully by specialists.
Our aim is always to defuse disputes at an early stage and with the minimum of expense, typically at a mediation.
Below we answer some of the most frequently asked questions we receive regarding property and boundary disputes.
What causes boundary 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:
Other circumstances which give rise to disputes can be caused by personal issues between parties, for example:
What constitutes legal/technical issues in boundary disputes?
Legal issues that can lead to boundary disputes include:
What constitutes personal issues in boundary disputes?
Often boundary disputes are complicated by the relationship between neighbours, such as the following:
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.
How can you resolve a boundary dispute?
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:
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.
Do I have to declare neighbour disputes when selling my property?
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.
What is a restrictive covenant?
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.
Can a neighbour enforce a restrictive covenant?
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:
Where the proposed use of land would breach a restrictive covenant, the affected property owner could consider:
How to deal with neighbour disputes?
What if my neighbour is a tenant?
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.
Who pays for surveyor in a party wall dispute?
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 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.
How long does Land Registry take to transfer ownership?
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.
What is an easement?
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).
Can an easement be transferred?
An easement cannot be sold separately. It passes with the land when it is transferrred.
Can easement rights be taken away?
It is possible, although rare, to lose a right to an easement. An easement may be lost by one of the following ways:
Who maintains a right of way easement?
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.
1520 Management Company Ltd
Paris Smith has developed a reputation in commercial and residential conveyancing, acting for clients across multiple sectors including investors, developers, business tenants and residential landlords. The team also has significant experience in representing developer clients in property contract disputes. David Eminton leads the practice and has increasingly been involved in high-value dilapidation claims, while Cliff Morris has particular expertise in boundary and right of way disputes and housing repossession claims. Clients say the team are “quick to respond, professional, have a good depth of knowledge“. Another states “the firms level of expertise is unique compared to other law firms, as there is always someone who can assist with any legal issue. Staff are also aware of their colleagues level of expertise and are able to refer matters to the correct person if they do not have a particular type of legal knowledge“, and another say they are a “high-quality technical disputes team, but local to its area. Mixes solidity of legal practitioners, good atmosphere, fine juniors and trainees and excellent contacts in the industry. The backroom is very good. Effective admin. Everything you need without going to London”
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