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A disputed boundary – what’s it worth?

05 March 2012

A recent case in the High Court concerned the boundary between two mews properties in Peckham.

The judge prefaced his decision with a warning: “the only certainty in this kind of case is that the financial outlay is almost always worth more than the disputed property is worth”.

He suggested that people became embroiled in disputes like this because of what he called ‘the territorial imperative’ – another way of reinforcing the maxim that an Englishman’s home is his castle. That is why so many people choose to litigate these cases; it is seen as a way of protecting what belongs to them.

But could mediation play a more important role in this type of dispute?  And if so, at what stage?

The answers to both questions might seem obvious but in reality, depends on two factors.

First, the ability of both parties’ lawyers to recognise the real benefits of an early intervention, and second whether a third party funder (eg a BTE insurer under a household policy) has become involved in the dispute. It is interesting how many household insurance policies offer cover where there is a dispute in relation to the property itself.

The lawyers will know that any boundary, or for that matter right of way or other dispute relating to land, will be time-consuming for them. They will also know that, whatever the outcome, their clients are likely to be less than happy.

After litigating cases like this for almost 30 years, despite constant warnings to clients about cost benefit, I speak from bitter experience. Following years of trench warfare, many a client is heard to mutter that the only ones to benefit are the lawyers and associated professionals.

However, where insurers are involved and aware of the potential for substantial expense, they will be keen to support any early move that settles the case and limits their exposure to cost.

So the first task for anyone involved in this type of case is to identify who holds the purse strings.

The second step is to explain how mediation can deliver a better result than either litigation, Land Registry adjudication or perhaps the intervention of a specialist surveyor by way of expert determination. In my experience, it definitely does, for a number of reasons.

First, as all mediators know, clients often need a forum in which to vent their feelings. If they have lived with a dispute for some years, this can be an important part of the process. No other method of dispute resolution offers the chance to ‘let off steam’.

Second, confirmation or adjustment of a boundary line may be only part of the problem. There may be issues arising out of the ownership of fences or trees, rights of access to maintain buildings and even questions as to rights of light and access. Sometimes a decision one way or the other will have difficult consequences.

What for instance if an adjustment to a boundary line between two buildings creates a flying freehold? Or if a determination of a boundary in one place means one side’s services or drains may suddenly become located on the other’s property?

Even in the most straightforward cases, mediation can allow the parties to tailor-make more comprehensive solutions. In one case, the parties even agreed to transfer a piece of land that was not in dispute, so that its owner could maintain his outbuilding without having to physically enter his neighbour’s property.Here, both sides benefitted from the certainty and the physical separation of the properties, which added value to each. No other process would have been able to offer such a solution.

In short, just as in other types of mediation, the flexibility of the process and the creativity it offers both parties suggests that a’ win-win’ can be achieved for both sides. That is not something I often hear discussed at the end of any court case, adjudication or arbitration in relation to boundaries or other property rights.

If both parties understand that the solution lies with them because they can decide whatever they want to do with their properties (subject perhaps to mortgagee approval), then early mediation of such disputes must surely be a first port of call rather than a last resort.

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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Nick Cox LLB (Hons)
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