Concern has, over a number of years now been growing surrounding homeowners pursuing boundary disputes through the courts. The reasons for the concern centre on the ever increasing costs associated with court proceedings and that such costs very often outweigh the value of the property in dispute.
Whilst courts do increasingly encourage use of alternative forms of dispute resolution once litigation is underway between parties such as mediation, the best outcome for neighbours in dispute is often not to litigate at all.
The Government recognised these concerns by publishing in 2012, the Property Boundaries (Resolution of Disputes) Bill which sought to impose a compulsory determination of boundary disputes by a suitably qualified expert. The process removes the sometimes archaic but prescribed process of inferring a boundary out of the hands of lay homeowners and into those of a suitably qualified surveyor. Although the bill passed through the House of Lords in 2015, progress into law has been slow but its introduction does seem likely at some point in the future.
While legal practitioners recognise the merits of legislation in this area there are concerns over prescribing a single route to resolution of a boundary dispute. This is particularly so when property lawyers have the ability not only to interpret relevant documents according to established principles but are often best placed to navigate the way to a solution between neighbours who have become stuck on principles.
With this in mind, Falcon Chambers and Hogan Lovells International LLP have developed a protocol for the resolution of disputes where neighbours are in deadlock over the location of the boundary between their properties. The protocol is part of an increasingly wider drive by the courts to establish best practice for parties’ conduct prior to court involvement. The protocol consists of a step by step guide leading the parties to a potential resolution of the dispute. It is at this point voluntary but has the backing of the Property Litigation Association.
The protocol seeks to prioritise the early and timely exchange of documents and information between the parties, prioritise the early resolution of the dispute potentially by using alternative dispute resolution, and to reduce the legal costs associated with such disputes.
There is a guidance note accompanying the protocol to assist in its implementation. In addition, there is a supplementary guidance note detailing the role of the surveyor in the process.
The protocol can be found at www.propertyprotocols.co.uk
Stuart Merrison is a Senior Solicitor in our Dispute Resolution Team.