Boundaries: protocol for dealing with disputes
Drawing a line
16 March 2018
David Powell introduces a new protocol intended to help surveyors and lawyers handle the thorny area of boundary disputes
Boundary disputes continue to cause friction between neighbours, generating disproportionate costs for those involved. For example, a dispute over a tiny strip of land in a suburban garden – perhaps just 50mm wide and 10m long – can often result in costs of £30,000 or more. That works out at a staggering rate of £120m per hectare.
In an attempt to reduce the likelihood of boundary disputes becoming so expensive, or even developing into full-blown disputes in the first place, a group of like-minded lawyers and a surveyor – the author of this article – got together in 2016 to see whether a standard approach could be devised for those involved in boundary disputes; the result is the Boundary Dispute Protocol.
The aim of the protocol is to provide a helpful guide for lawyers and surveyors. It may also help the parties themselves to gain a better understanding of what professional advisors can and cannot do for them.
For lawyers, the protocol contains advice on the documentation required and the timetables involved if the matter proceeds to litigation. For surveyors, there is supplementary guidance intended to take them through the process step by step: it describes the form in which instructions are likely to be received, and how the surveyor should make an initial reading of the supplied papers to understand the nature of the dispute.
Importantly, the guidance lays out the procedure for the site visit, including the initial interview with the property owner and the guided tour of the area in dispute. It includes tips on the sort of questions to ask and the method of measurement most commonly used, such as a total station instrument.
Most boundary disputes are complex in that there are often several features in close proximity
It also emphasises the importance of taking a set of clear photographs, which may prove invaluable when describing the details of a dispute to a court. Most boundary disputes are complex in that there are often several features in close proximity, so a clear photograph can help those who have not visited the site.
Detailed advice is also given on the office-based analysis needed after the survey has been processed, including the difference between paper title and the extent of registered title, as well as the use of available aerial photographs.
Most boundary disputes that become litigious reach a stage where the expert surveyors are instructed to meet and produce a schedule of agreed and disagreed points, together with reasons for any disagreement. This enables a court, and the parties themselves, to identify the remaining areas of potential argument, therefore saving much time and money.
The guidance elaborates the form in which this meeting takes place, and explains that it can even be carried out by email, thus making it easier to cope with congested diaries and avoiding costly long- distance travel.
There is also a section on the approach to take when a surveyor has been appointed as single joint expert with a typical site programme.
Again with the aim of keeping costs to a minimum, the guidance suggests that there are cases where a short report, rather than one that complies fully with the Civil Procedure Rules (CPR), might be appropriate. Such reports can easily be upgraded to fulfil the CPR criteria if the matter proceeds to court but, in most cases, they will enable the parties and their lawyers to understand where the probable boundary lies without having to pay any more than is necessary. Short reports are frequently requested by insurance companies where a property owner has applied for financial cover, for instance, because they allow the likely risk to be assessed.
Here to help
It is appreciated that many surveyors already have their own way of approaching boundary disputes, and may be concerned that the guidance is too restrictive. However, that is not the intention of the protocol or the guidance; the aim is to help those who may be new to the field and provide a simple manual for those who are more experienced.
The protocol is sure to be updated in the future, with feedback from surveyors being key to its evolution. The most important aspect is that it lays out how professionals can work together to ensure that property owners and insurers can resolve their disputes in an efficient, structured and cost-effective way.
David Powell is a chartered land surveyor and one of the founders of the RICS Boundaries and Party Walls Panel