Let’s use the legislative vacuum
to good effect

Richard Crow, Associate Director, Trident Building Consultancy

Who would have thought
that Brexit – or the lack of it – would significantly affect the way in which the
industry manages boundary disputes?

Two years ago, a
Private Members’ Bill sponsored by Lord Lytton received its first reading in the
House of Lords. The Bill suggested that boundary issues could be better addressed
by using a structure which broadly replicated the provisions of the Party Wall Act
– essentially removing much of the responsibility from solicitors and handing it
to surveyors. Progress of the Bill was thwarted by the general election of June
2017 and with parliamentary time apparently unavailable to advance the legislation,
it is yet to have its second reading in the House of Lords. The delay is frustrating,
but is also provides some necessary reflection time.

Breaking boundaries

There is undoubtedly
a need to reform legislation which, as the local newspapers tell us, can cost individuals
as much as £20,000 for trimming a hedge – as well as costing them their relationship
with their neighbours. And as large scale development is rushed into existence to
address the housing crisis, landowners will increasingly seek boundary dispute services
to maximise their landholding prior to development.

The objective of the Property Boundaries (Resolution
of Disputes) Bill is to replace the thousands of court and tribunal hearings which
take place each year with expert surveying guidance.

Lord Lytton’s Bill
aims to reduce costs and expedite the resolution of property boundary disputes.
Its mandatory dispute resolution scheme involves one neighbour serving a formal
notice on the other, along with a plan indicating where they believe the boundary
lies. If the neighbour disagrees, then a dispute is deemed to have arisen. Either
a surveyor is instructed jointly (which is encouraged to both limit costs and bring
about openness), or individual surveyors are appointed by each party and a third
independent surveyor instructed to make the final decision. Surveyors must be members
of either RIBA, RICS or ICE and must adhere to the RICS code of conduct, regulations
and RICS Professional Guidance regarding measured surveys of land, buildings
and utilities and most importantly for surveyors acting on boundary disputes, boundaries,.
The surveyors’ findings are regarded as conclusive unless an appeal is made to the
High Court within 28 days. When this period expires without appeal, both parties
must inform the Land Registry.

As a surveyor, I would be expected to support legislation
but I have some reservations.

Legislation reservations

There are notable
omissions. Not all boundary disputes are captured by the Bill, specifically leasehold
land. This means that two adjoining leaseholders cannot determine a boundary dispute
without the authority and approval of the freeholder(s). This may not appear to
be an issue at first sight; however, during my career I have encountered
numerous long leasehold commercial tenancies. The freeholders may have no
interest with such boundary issues or may no longer be contactable as contact
details have changed over the passage of time. If the tenant’s occupational use
of the land is infringed due to encroachment (for example), who would the
leaseholder turn to if they could not self-manage this process?  .

Furthermore, the
Bill does not appear to authorise the surveyor to instruct a landowner to either
remove a structure on a neighbour’s land or award compensation – this would
require strict, prescriptive guidance set out, reviewed and approved by legal
professionals, if the surveyor was to be granted such powers. As a consequence,
there is an increased likelihood of aggrieved parties using the appeal route of
the High Court – ironically adding an extra layer to the process and ultimately
more legal costs.

The Bill imposes
criminal sanctions on those who prevent the service of the boundary dispute notices
but there is no reference to property owners who prevent surveyors from inspecting
the property.

And we need more
clarification on how the new procedures would work with existing rules and procedures
on adverse possession or the acquisition of rights of way through the Land Registry.

Finally, due to the current system, there are very few
surveyors with expertise in this area. When I undertook the inaugural RICS Expert
Witness Accreditation Scheme (EWAS) certification recently, I was one of just three
who, though this process, attained the recognition as an RICS Registered Expert
Witness. Perhaps the lack of those suitably qualified reflects the fact that there
are currently no minimum standards for boundary dispute advisors. But when this
new legislation comes into effect, we would require substantially more qualified
experts – ideally those who combine the experience of land surveying and a building
surveying, as I do. Determining a boundary goes beyond considering topographical
features and plans: the legal construction of documents, estoppel and boundary agreements
and the issues of adverse possession relies on us being able to fully comprehend
the legal implications of historic conveyances. If the conveyance is available,
it must be interpreted – is it the clause, plan, both or neither which determines
the land conveyed? – and if it is not, extrinsic evidence must be selected and appropriate
weight attached.

And although the
Bill aims to avoid adversarial adjudication, it requires a decision to be forced
on both parties. This responsibility is placed on surveyors rather than a judge
– so experience in weighing up evidence and presenting a persuasive conclusion is
required. The proposed system, at present, does not allow for the parties to
mediate should they wish to do so. This can be criticised as undemocratic, with
the potential to set a dangerous precedent.

Light at the end of the tunnel?

Of course there
are benefits in reducing solicitors’ involvement. The adversarial nature of litigation
and the accruing liability – not to mention the substantial court costs – can be
socially and emotionally harmful. This is well reflected in the comments of a presiding
judge: “A party can litigate over a tiny strip of land, although I would certainly
agree that it is usually economic madness to do so�.

Boundary disputes are a messy business – and so it would
seem, is boundary dispute legislation. I am fully in support of change and welcome
Lord Lytton’s initiative but clearly it requires further consideration before –
hopefully – the Brexit cloud lifts one way or another and necessary legislation
such as this is once again visible on the horizon.

www.tridentbc.com