The Stresses and Strains of Legal Liason03/05/2005 |
| Boundary Dispute Resolution in England and Wales |
| Approximately 21,000,000 properties exist in England and Wales, ranging from small houses with tiny gardens to large rural estates. Boundary disputes are relatively rare and involve an average of 100mm - about the width of a fence post - yet cost each party around £25,000 to settle in court. The author describes the stressful role of the surveyor, co-operation with lawyers and a possible cadastral system of boundary records. |
| David J. Powell, chairman, Geomatics Faculty, Royal Institute of Chartered Surveyors, UK |
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The root of the problem in a boundary dispute often lies with the personalities of the parties involved. Many people live side by side, with indistinct and ill-defined boundaries, yet without experiencing any problems with their neighbours. But where different types of people live side by side problems can easily flare up. Differences do not actually matter in racial group, sexual gender, class; differences in personality type cross all such categories. Surveyors and lawyers specialised in this field must be well aware of the people factor. This is because in a court of law, conduct of the dispute and the professional’s part in it will come under very close scrutiny. Surveyors should remain calm and relaxed and acquire the skill of nodding their heads in understanding rather than necessarily in agreement. Only by listening to often aggravated and even abusive parties will the surveyor hear about the old iron post in the hedge or the remains of the base of the brick wall so vital to finding a solution.
Measurements should be shown in both metric and imperial values. Most deed plans still have dimensions in feet and inches, whilst surveyors should work within the metric system at all times. Since the deeds may, for example, specify only '66ft', a court will be helped by showing a distance on a plan as being 66 feet 2 inches as well as 20.168m. A judge can then easily see that the distance is two inches greater, without having to convert and reconvert it. Deeds may also contain measurements in other units and it is useful to know, for example, that 1 rood equals 0.25 acre, 1 perch equals 0.00625 acre and that 2.471 acres go into one Hectare. Steel Tape Best Modern electronic methods of measurement should always be used, for reasons of speed and economy. However, relying on GPS can be dangerous because critical points are often buried within a thick hedge or under an overhanging roof. When neighbours are arguing over less than 25mm, which frequently happens, then the steel measuring-tape is often the best instrument in confined or congested areas. Digital plans are essential, as it may be necessary to produce plots at differing scales for the court at very short notice. The information on the plans must be identical in every respect, except for the change of scale. This author commonly uses 1:50 and 1:100, sometimes even 1:20. Teamwork Independent surveyor’s reports are not prepared for their clients - the parties or their lawyers - but for the court and should be prepared in a completely independent manner with this in mind. Boundary dispute resolution is one of the few areas where surveyors and lawyers regularly work together as a team. The lawyer relies upon good, independent expert advice from a surveyor, and the surveyor relies upon the lawyer to provide the deeds and other helpful documents. Surveyors must realise and understand their place in a team that may well include other experts. An overview of the usual stages of liaison with lawyers is to be found in the infobox. Single Joint Expert Where there are two experts, one representing each party, the court usually orders them to meet. They have to prepare a schedule of agreed and disagreed points, together with an agreed plan showing the respective lines in different colours. A surveyor should not adopt an adversarial pose, but should rather try to resolve the matter in the way that two people might try to solve a jigsaw puzzle; one with no picture on the lid of the box, some pieces missing and other pieces not belonging to it! It is not an easy or exact science. Since the advent of the Civil Procedure Rules in 1998, the court frequently appoints a Single Joint Expert (SJE) to provide one all-encompassing report instead of having two experts. The surveyor has to visit and interview each party, then carry out comprehensive measurements of both properties and write a ‘joint’ report for the court. Each party, normally through their solicitor and counsel, is then allowed to ask one set of written questions. These questions and the surveyor’s answers to them then form an addition to the original report. The idea behind the SJE method was to eliminate the cost of experts going to court. In practice, this has not been the case. The Courts Boundary disputes go before the County Court or the High Court, depending upon the value of the properties. Thus a dispute involving a few centimetres in the City of London may go to the High Court, whilst in a rural part of Cornwall such a dispute may go to the local County Court. For the surveyor it makes no real difference; the sequence of giving evidence is always the same:
Giving evidence is a solemn and serious business and can be very stressful, particularly when under cross-examination. If a surveyor find he cannot stand the strain of cross-examination he should avoid working in the field of boundary demarcation. The surveyor normally liases with lawyers and the court to ensure that a new fence or wall is constructed in accordance with court judgement. Finally, the surveyor will need to draw up a plan showing the new boundary location and forward this to his instructing solicitor for notification to LR for record purposes. Boundary Cadastre Boundary disputes occur even where a full and efficient cadastral system exists. However, these disputes seem to occur infrequently and do not involve the cost and intensity of those in England and Wales. The introduction of a cadastral system of boundary records in England and Wales would thus eliminate many boundary disputes. Cost is the main problem preventing the installation of a blanket cadastral system; installing such a system would cost around £2,000 per property. After initial installation, of course, its operation would be simpler and cheap to update as time went on. The initial projected cost (21,000,000 x £2,000 = £42 billion), which would presumably have to be met by the UK taxpayer, is such that no politician is likely to campaign for it! A better way of introducing such a cadastral system would be to make it mandatory on new housing estates. This would involve a cost of around £200 per property. Since the average cost of a house on a new housing estate is £180,000, this amounts to 0.1%. The usual stages of liaison with lawyers are as follows.
It typically takes eighteen months for a case to come to court after proceedings have been issued. |
| Biography of the Author(s) David Powell qualified as a land surveyor in the Royal Engineers in 1967. Since then he has travelled to many parts of the world carrying out land surveying and mapping. Since 1989 he has concentrated on boundary dispute matters. He is the current chairman of the Geomatics (Land Surveying) Faculty Board of the RICS, a member of council of the Academy of Experts and a member of the Land Registration Act Rule Committee. |
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