Useful articles on mediation
Boundary disputes are seldom about “just” the boundary. There are often many underlying issues between the neighbours. How they can best be resolved is a matter of debate but most will agree that there needs to be an easy, quick and cheap way of dealing with them.
The current system
Boundary disputes are usually determined by the County Court or by the First-tier Tribunal (FTT) following either an application for adverse possession, to restrain trespass, rectification of the registered title or a declaration as to ownership. One problem with the current system is that the FTT has different powers to the County Court, which can often require concurrent proceedings in both jurisdictions. Costs quickly become out of all proportion to the value of the land in issue.
There is a proposal currently being trialled called ‘flexible judicial deployment’, which seeks to avoid this jurisdictional issue and allows FTT judges to exercise powers of the county court within one set of proceedings. This will hopefully streamline the process.
Property Boundaries (Resolution of Disputes) Bill
This Bill advocates a compulsory dispute resolution system akin to the Party Wall etc. Act 1996. The idea is that most disputes can be determined by looking at the physical features on the ground and deciding where the boundary is. The owner of land who wishes to establish a precise boundary is required to serve notice on the adjoining owner. If there is no specific consent a dispute is deemed to have arisen, which is then resolved by a surveyor who determines the precise location of the boundary and the costs liability of the dispute. These findings will be conclusive unless an appeal is made within 28 days to the High Court.
Most boundary disputes do not just involve the line on a Deed. The fundamental issue is who owns a piece of land and the Bill fails to address the legal issues relevant to this, in particular adverse possession claims. Ownership must be decided taking into consideration all the evidence, not just a surveyor’s view of ‘the line’ but also, the construction of legal documents, historical uses of the land, adverse possession and estoppel issues. The Bill only deals with the transposition of a line on a plan to a line on the ground. It does not deal with any of the other issues. Compulsion to use this system will add another layer of complexity and costs, with these other issues still needing to be deal with.
This Bill also applies to disputes as to the ‘location and extent of a private right of way’ ie easements. Again, the law of easements is complex and we question whether a lone surveyor can conclusively decide these matters as an expert.
Ministry of Justice Scoping Study
In January 2011 the MOJ published the results of its study into boundary disputes. It was not persuaded that there was justification for the imposition of a solution based on the Party Wall Act. It considered that ‘the piecemeal improvement of the current system without imposing on its flexibility is likely to be a better approach’ and proposed exploring further the scope for improving the court and tribunal procedure; encouraging the use of mediation and independent expert determination; and making better information available to those involved in these disputes. The Civil Justice Council is currently executing this brief.
Expert determination and mediation
The process put forward by the Bill is, in effect, an expert determination. There is no reason why parties cannot currently agree to adopt this approach if they think it appropriate. The compulsion envisaged by the Bill is inappropriate and will lead to more complexity and greater costs.
The Scoping Study identified that the most widely supported approach was to promote the use of mediation. Proponents of the Bill claim that ‘settlement is more often than not quite impossible’, citing factors such as unequal strength of position, parties not seeing it in their interests to settle and disproportionate costs having been incurred. All these factors, as well as mistrust and hostility, do make these mediations difficult but our experience is that settlements can often be achieved. Mediations can produce solutions that the courts cannot, not only in the location of the boundary but can also deal with the other aggravating personal factors in a safe environment.
Peter Bourke is a partner in the property disputes team at Wilsons www.wilsonslaw.com
Jacqui and Peter are members of the Law Reform Committee of the Property Litigation Association and are monitoring developments in this area on behalf of the PLA.
A slightly longer version of this article first appeared in the Estates Gazette.