Proportionality in boundary disputes

Proportionality in boundary disputes

As well as providing an excellent summary of the law on how to go about the job of determining the position of a legal boundary, a recent decision of Judge Ewan Paton sitting in the First-tier Tribunal (Property Chamber) in a Land Registration Act 2002 (LRA) boundary determination case is also a reminder of the lack of proportionality (and rationality) that often prevails when neighbours fall out about the position of a boundary.

We always have an active case-load of boundary disputes and what the learned judge said strikes a chord with us. In addition to the factors identified by the judge – see below – the legal costs of a fully contested boundary dispute can reach life changing proportions. We have had one case recently where the combined costs of a dispute about a narrow strip of land between two gardens were around £400,000. Quite apart from the underlying disputed issues, costs at that level can themselves provide a perverse disincentive to settlement. That is because the general presumption is that the winning party can expect a significant proportion of their costs to be paid by the loosing party.

The Tribunal case involved an application to the Land Registry under Section 60 of the LRA for the determination of the exact line of a boundary. It turned on the interpretation of a conveyance plan and of the physical features on the ground at the time of the conveyance. The applicant’s case was that the plan itself was sufficiently clear and precise as to override the evidence provided by the physical features on the ground and contended for a line that cut through the physical features in several different places. In dismissing the application, Judge Paton made the following remarks that, although specific to the facts in that case, will be relevant to all those considering or already embarked on litigation over the precise position of a boundary:

“24. It is clear from that plan, and yet further common ground, that this boundary line would cut through the existing post and rail fences (shown dashed on the plan), and trees or “copse”, in three places as shown above. At its eastern end, it would mean that a triangle of land currently fenced onto the Applicant’s side by both fences would in fact become part of the Respondents’ title. A slightly smaller triangle at the western end, currently enclosed by the fencing onto the Respondents’ side, would become part of the Applicant’s title.

25. That is the application which the Applicant has made. It is not strictly speaking a matter for the Tribunal, on such an application, to consider the reasons why it has been made; or the utility or value of the resulting boundary it would produce. It was not, however, apparent to me precisely why the Applicant would prefer such a boundary to the physical one formed (since, on her evidence, about 1984) by the fencing and trees. Any value in the ‘land swap’ and relocation of the boundary fencing which would result from such a determination was not clear. It is a sadly apparent feature of this case that the parties have been in a series of legal disputes since about 2017, and that their relations have deteriorated to a very low point. As is often the case, it may be that this is the major factor behind these proceedings, rather than e.g. any desire for geometric boundary precision or the value of any land in issue.”

The those interested in the law, the judgment is well worth the read.

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