December 18, 2020
One of the most common disputes between neighbours is the boundaries between their properties.
Boundary disputes can be in relation to commercial, residential and agricultural land. Residential boundary disputes are the most common.
We are often asked to help clients with boundary wall disputes or with issues relating to boundary fence ownership.
Get help as soon as possible.
A minor disagreement can quickly become a full-scale dispute and become very expensive to resolve.
If you have a boundary dispute then you should obtain legal advice from a solicitor as soon as possible.
This is particularly important in a residential case where two neighbours are in dispute. Effective representation at this stage may avoid a long, bitter and expensive dispute.
What is a boundary?
Every piece of land and property, whether or not it is registered, has exact legal boundaries.
The legal boundary is an imaginary or invisible line that divides one property from another.
The physical boundary is a feature such as a fence, wall or hedge. The physical boundary may or may not follow the line of the legal boundary.
The physical boundary may change over time.
There may be many reasons; a diverted water course, a wooden fence that moves slightly every time it is replaced. The reason for these changes is rarely recorded and can easily lead to disputes.
The Land Registration Act 2002 allows you under certain conditions to determine and record the exact line of your boundaries on a registered title. This will avoid any future boundary disputes.
It is always wise to check your position with regards to your boundary before making any changes.
Your neighbour may complain that a new wall is overlapping their land or you may feel that their new extension takes up part of a pathway between your houses.
If your neighbour has moved your boundary or indeed you are thinking of doing the same, specialist advice should be sought first.
A lot of disputes arise over a wall or fence being erected in the wrong place which can lead to an intolerable situation with your neighbour.
Boundary disputes are extremely stressful for all involved and can last a number of years.
“Check your position with regards to your boundary before making any changes”
Establishing the boundaries and ownership
The first stage of dealing with a boundary dispute is to check the title deeds of the properties to establish the position of boundaries.
The Land Registry records the general position of the boundaries in each registered title using an adapted large scale Ordnance Survey plan. This title plan may not accurately represent the true ground positions of the boundaries.
The red line drawn around a property on the Land Registry plan only shows the general boundary. It does not identify whether the boundary runs along the centre of a hedge or along one side of it.
Ordnance Survey maps are equally unreliable because, as part of the mapping process, they do not mark exact property boundaries. So a line surrounding the property is not necessarily the property boundary.
If you think that the boundaries are not defined correctly in the title deeds then you should consult a solicitor.
Further information may be required from a surveyor specialising in boundaries.
Surveyors can survey the land, check deeds and the plans attached to them and refer to historical documents and aerial photographs.
It is possible that you can obtain an expert that agrees with you where the boundary is only for your neighbour to find one that believes it is somewhere else. This is why a lot of boundary dispute cases end up in the Courts with a Judge making a decision based on all of the evidence as to where the boundary is.
However, litigation through the Courts should always be a last resort. Many boundary disputes can be resolved through correspondence, by mediation or a ‘meeting on site’ of experts.
Check the title deeds to see who has a duty to erect a barrier.
The title deeds of a property may specify that the owner must erect a fence, wall or other barrier and may even stipulate the type of barrier to be erected.
The title deeds can also contain restrictions on putting up a barrier, for example on open plan housing estates. If the deeds make no reference to fences or barriers then, generally, the property owner is under no obligation to erect one.
“Many boundary disputes can be resolved through correspondence, by mediation or a meeting on site of experts”
Who can use or repair a barrier
In order to establish who can use or repair a barrier, you first need to establish who owns it.
The ownership of the barrier may be stated in the title deeds of the property, as may the responsibility for repairs and maintenance. If the deeds do not refer to the rights to use and repair a barrier, then you should seek legal advice.
If the barrier belongs to one owner, s/he can use it as s/he wishes, without the neighbour’s consent, providing it is safe.
The neighbour has no rights over the barrier. For example, s/he could not use it to support trailing plants without the owner’s permission. If the fence is jointly owned, each neighbour can use it for support, provided neither makes it unsafe.
A property owner is not obliged to repair her/his barrier unless the title deed says so.
However, if the barrier injures a person or damages her/his property, s/he may be liable for damages. It is therefore in the owner’s interests to keep the barrier in a reasonable state of repair.
How do I find out who has responsibility for a boundary fence, wall or hedge?
A title register will give information about the ownership of boundary features only where the information was available in the title deeds lodged for registration.
The most common marking on deed plans indicating boundary ownership, or the liability to maintain and repair it, is a ‘T’ mark.
‘T’ marks on a plan to a deed would normally indicate that the proprietor of the property within the red edging is responsible for the maintenance/repair of any boundary with the inward facing ‘T, mark.
However, the wording in the deed must also be read to obtain the necessary interpretation of the ‘T’ marks in the particular deed.
‘T’ marks on a deed plan that are not referred to in the deed have no special force or meaning in law.
Not all deeds contain plans showing ‘T’ marks and sometimes the boundary may be referred to in the wording of the deed.
The Land Registry rarely reproduce ‘T’ marks on the title plan. More commonly they will add a note at the end of the register entry, such as, “The ‘T’ mark referred to affects the northern boundary of the land in this title”.
Sometimes a deed is referred to in the register as ‘Copy filed’. In that case you will need to request a copy of it to see if it contains any details as to ownership/upkeep of boundary features.
Even when the register refers to walls, fences, hedges and other boundary features, these may have changed since the register was created.
For example, new boundary features might have been built and the neighbours at that time might have agreed who was responsible for them.
When ownership cannot be determined
There is no legal foundation in the belief that the way a wall or fence is constructed indicates ownership (e.g. that the posts and rails of a fence are on the owner’s side).
Deeds may contain covenants to maintain a wall or fence but, on their own, such covenants do not necessarily give ownership.
Where the ownership or responsibility for maintenance of a boundary cannot be determined, that boundary feature is generally best regarded as a party boundary.
Any alterations or replacement of the boundary should be done only with the agreement of the adjoining owners.
How to resolve boundary disputes
In a dispute with a neighbour you should always start with amicable discussion.
You may find that the land that is important to you but may be insignificant to your neighbour or that your neighbour readily agrees to your suggested solution.
It is also worthwhile putting together documents that establish boundaries as this will help you with your discussions and help you communicate clearly.
If your initial discussions do not get you anywhere, it is useful at this early stage to consult a solicitor and show them your documentation.
A good solicitor could discuss the matter further with your neighbour and mediate on your behalf.
If all attempts at negotiation fail, you could attempt mediation, involving both parties with their solicitors and an independent mediator.
As a last resort you could take the issue to court.
We can help you with your boundary problems
Our solicitors can give you advice and information on all types of boundary disputes.
We will be able to help you decide whether or not you have a viable case and if you do we are here to help.
We will look at your specific problem and obtain any technical information that may help solve the dispute at an early stage. We can also advise on alternative dispute resolution procedures which could avoid the need to go to court.
If necessary we will prepare the evidence and information that a court will need to make a judgement.
If you have a question for our specialist solicitors please complete our online enquiry form on our contact page or call 0121 705 7571 and ask for Daniel Zakis or Mark Baldwin.
This article is for general information purposes only. It does not constitute technical, financial, legal advice or any other type of professional advice and is no substitute for specific advice based on your individual circumstances. We do not accept responsibility or liability for any actions taken based on the information in this article. For more information, please click here.