Andrew Troughton, expert in boundary disputes looks at the basic principles and issues to consider:
Why do boundary issues arise?
What should be a simple line on a plan, can frequently cause costly issues for the parties involved. Disputes often arise from one of the neighbours inadvertently or deliberately replacing a boundary structure i.e. fence, hedge or ditch. It would be nice to think that the neighbours would meet and resolve the issues but this does not always work.
Issues can particularly arise when plans and title documents are not clear or documents conflict. Both Land Registry documents and Ordnance Survey plans for example, do not claim to be 100% accurate and the strength and intention of the documents needs to be assessed.
What do the expert do?
Firstly the Expert undertakes a careful analysis of all documents including deeds and deed plans, Land Registry documents, historical photos and aerial images. This is normally followed by a site inspection to take measurements and assess the physical boundary features.
An expert will assess all this evidence and weigh up what are the strongest or most reliable parts of the evidence and then answer the questions they have been asked by the client or instructing solicitor. These normally relate to the position of the boundary, but could also include, plotting particular points and assessing the condition of the ground surface and drainage issues that may have been created. As valuers, it is also out task to assess issues relating to loss of freehold value, annual losses and the costs to put the problem right.
An expert would normally prepare an expert report to summarise the findings.
Who does an expert work for?
An expert can be instructed by one side in the dispute, just to help them or jointly by the parties or be instructed by a court. When acting as a joint expert or for the court a strict set of rules known as the Civil Procedure Rules are followed. These require that specific rules are followed with the most important being that the expert has a duty to the court and must assume that they are instructed by the court as an independent expert (irrespective of which side has instructed them).
When does an expert get involved?
The most common time for an expert to become involved is when legal proceedings are possible and the parties need to ensure their cases are robust. Courts expect parties to try and settle disputes without going to court so an expert’s involvement is a good way to progress this.
The Expert report may also lead to an offer to settle the dispute being made (i.e. based on the analysis). The earlier a reasonable offer to settle is made the better, in terms of costs awards, as it shows the parties willingness to settle.
There is nothing to stop an expert to get involved at the start of a dispute informally, but a thorough analysis of the facts is always important.
Andrew provides advice in the following areas:
- Boundary disputes
- Access and right of way disputes
- Agricultural tenancy disputes (1986 Act and 1995 Act)
- Residential development valuations