In this article, Sioban Calcott, Head of Dispute Resolution at Moore & Tibbits, provides some practical tips for neighbours engaged in disputes that may be helpful.
What are the common issues neighbours argue about?
Neighbour disputes can arise in various forms, such as disagreements over fences, drainage ditches, rights of way, poorly constructed house extensions encroaching on boundaries, drain locations, or disputes involving trees and hedges. Disputes can also involve trespassing, noise, parking, or nuisance claims.
How can I determine the boundary?
The first step is to check the title deeds, the conveyancing solicitors' report (if available), and the original conveyancing solicitors' file if it still exists. Keep in mind that lawyers are allowed to destroy files after a certain period of time.
Another way to resolve a boundary dispute early on is to contact the Land Registry. However, it is important to note that the plan held at the Land Registry only provides a general guide unless the deeds specifically state that the plan is definitive.
Can the Land Registry help resolve the issue?
In certain circumstances, it may be possible to apply to the Land Registry to alter the Register and have the boundary determined. If there is an objection to the application lodged with the Land Registry, the case may be referred to the Land Registration division of the Property Chamber (First-tier Tribunal). Some parts of the process are conducted through written submissions, but the dispute can also be resolved through a hearing, where the Tribunal Judge visits the disputed area. These hearings are often held at a location convenient to the parties involved. There have been instances where Tribunal cases were held in hotels and other premises more inviting than traditional courts.
How long does it take to resolve disputes?
The length of time it takes to resolve a dispute is unpredictable. In some cases, it can take several years, assuming there are no appeals. It is not uncommon to come across cases within the legal community and in national media where parties have almost bankrupted themselves arguing over issues that others may consider minor.
Can disputes be resolved through mediation?
Most certainly!
When it comes to boundary disputes, lawyers representing the parties should always explore the option of alternative dispute resolution, (ADR) or mediation.
If the parties decide to go to court, it is expected that at some point during the process, the judge will recommend considering mediation if it hasn't been considered before.
Engaging in mediation should not be seen as a sign of weakness. Firstly, the court expects the parties to attempt resolving the matter before resorting to litigation. Secondly, if the parties neglect mediation, the court can impose significant cost orders, rejecting reimbursement of costs if they haven't attempted to resolve the issues through ADR or mediation. Lastly, mediation may uncover issues that the parties were unaware of, which could be useful if the matter proceeds to trial.
Can I issue legal proceedings in the County Court?
Yes.
If litigation is being contemplated, the court expects the parties to have engaged in discussions and negotiations before starting proceedings. Court Proceedings should only be issued as a last resort.
However, if the matter proceeds to court, then the court will expect that the parties clearly present their respective cases and have exchanged relevant evidence in support of their arguments.
At a Directions hearing, a judge may order, (if it has not already been obtained) the parties n expert surveying evidence in addition to setting the timetable to trial.
Will I be able to recover all my legal costs?
It's highly unlikely.
It may sound strange to read this on a blog by a litigation lawyer, but when faced with a boundary dispute, it's crucial to avoid litigation whenever possible. There's an old legal saying that "the law is like Claridge's, open to everybody." And it's expensive! The costs involved in boundary disputes can rapidly accumulate. It's not uncommon for a party to say, "it's a point of principle," which often translates to "all reason has been thrown out the window."
While the general rule in litigation is that the losing party pays the winner's costs, a judge is unlikely to award the entirety of the costs expended. A successful party can anticipate recovering reasonably incurred costs. However, if a judge determines that the parties have acted unreasonably, cost sanctions may be imposed. So even if successful, the winner cannot expect to recover all costs. It should be noted that costs are awarded at the discretion of the Judge and recovery is not a given. For the losing party, the legal costs could end up being double what they have paid their own lawyer.
A recent example of this is in the case of Dr Veena Paes who attempted an ‘ambitious’ land grab of the neighbours’ back gardens. On taking the neighbours to court, Paes ended up facing a huge court bill estimated to be in excess of £200,000.
If we can help people resolve disputes with their neighbours, we are more than happy to do so.
Call Sioban Calcott on 01926 491181 or mobile: 07943 655570.
Sioban Calcott | Head of Dispute Resolution