As the old saying goes “An Englishman’s home is his castle”. But experience has shown that battles over land are by no means confined to the English, and nor are they an exclusively male phenomenon!
Few things are more universally guaranteed to provoke a bitter, lengthy and expensive feud than encroachments upon, or interference with the enjoyment of, a person’s home. Boundary disputes between neighbours – even over very small amounts of land – often become fiercely contested and ugly conflicts.
Whether it be a fence that encroaches over the boundary or overhanging trees, there is a multitude of sins that neighbours can commit which may result in all out warfare.
How do I determine where my boundary is?
This is a fair question which we are frequently asked. It might be assumed that the answer is simple. If only that were true.
The starting point when trying to identify the boundary is to look at the title documents to the property. But, whilst most UK properties are now registered at the Land Registry, and therefore shown on an official filed plan, the vast majority of such plans will merely be ordnance survey map extracts where the scale (frequently 1:1250) is too small to be of any real use in precisely identifying where the boundary line is. At that scale, even the boundary line itself would be around a metre wide if scaled up to actual size.
Moreover, the plans only show the “general boundaries” and therefore cannot be relied upon.
Older properties might be identified on a larger scale plan, and so earlier title deeds are sometimes useful. The measurements of the plot might also be stated in the old title deeds, though frequently not with precision, and measurements followed by “or thereabouts” are often given.
Historical evidence, such as old aerial photos, or statements from long term residents in the area, is sometimes useful.
Rather than trying to prove that the boundary has always been where it is presently marked (e.g. by a fence or hedge, etc), it is sometimes easier to rely upon a long period of occupation of the land as giving rise to ownership, or the right to apply for it, by virtue of “adverse possession”. This is a complex area and the law changed in 2003 but, in summary, if a neighbouring owner can prove the right sort of continuous and exclusive possession of the land for long enough (12 or 10 years depending upon the period in question) they may have acquired, or be entitled to acquire, title to the land, even if it was not theirs in the first place.
As if not already complicated enough, relatively small boundary movements might also be shown to have occurred following an informal ‘boundary agreement’ between neighbours (even if not in writing). Equally, a person may be unable to challenge the position of a boundary, even though it can be proved to have been moved, if they are now “estopped” from doing so – on the grounds that their previous actions or inactions would make it unfair to now assert their true property rights.
Who owns the boundary fence, wall or hedge?
This is another common cause of disputes between neighbours.
On older title plans, and often on the newer site plans prepared by developers, it was common to find “T marks” on the boundary lines to designate who owned or was responsible for the maintenance of the boundary features. The base of a capital ‘T’ would be placed on the boundary line, with the ‘T’ on the side of the owner or the person who was responsible for the maintenance of the boundary feature.
However, this is not an invariable rule and it is not uncommon to find that disputes have arisen because the original boundary feature has either changed ownership by agreement, or been replaced by a later feature which belongs to the other neighbour – e.g. where a hedge was planted next to the original fence, which was the feature marked with the T, but the fence has long since rotted away and only the hedge now remains.
It is a common misconception that the owner of a boundary feature has an obligation to maintain it. Whilst this may be the case – e.g. because there was a covenant requiring the owner to keep it in good repair – in the absence of such a covenant the owner does not have to maintain it or keep it in place.
Encroaching roots, branches of trees and hedges
A landowner also owns the space above and below the land (theoretically up to the heavens, but more limited in practice). So, if the roots or branches of a neighbour’s tree or hedge encroach beyond the boundary, they constitute a trespass and, if they cause damage, a nuisance.
The adjoining owner can seek damages and/or an injunction for their removal or, preferably after giving due notice, exercise the remedy of abatement or ‘self-help’ and remove them himself. It is important to ensure that no more than the encroachment is removed, and to take particular care if there might be a preservation order on the tree, or if removal of the encroachment might destroy the tree or hedge. Moreover, strictly speaking, the roots and branches remain the property of the owner of the tree or hedge and should therefore be returned. Also, beware of disturbing nesting birds! (You might infringe the Wildlife and Countryside Act 1981.)
What about the height of hedges?
There are no specific regulations covering the acceptable height of a deciduous hedge, unless it interferes with a neighbouring right of light (a complex subject). However, in respect of evergreen or semi-evergreen hedges in a domestic setting, there are rules (under the Anti-social Behaviour Act 2003) which the local authority can use to regulate the height of the hedge.
If it is alleged that the height of such a hedge on another’s land interferes with the reasonable enjoyment of a domestic property, and negotiations with the owner have failed to produce a resolution, the local council can (for a fee) intervene and, amongst other things, issue a remedial notice requiring the reduction in height of the hedge to a maximum of two metres.
Have I got a right of way?
Sometimes the answer can be ascertained by looking at the title documents, but that is not the end of the story. Such rights can also be acquired by various legal ‘myths’, and by long usage, provided it is of the right kind and in the right circumstances.
This is another area where the law is complicated, ripe for conflicts, and where the history and nature of the use of the land needs to be carefully investigated by a specialist solicitor.
Will the police assist in boundary disputes?
Neighbour disputes over boundaries and overgrown trees or hedges fall within the civil law and the police are unlikely to get involved – unless the situation has deteriorated to the point where a perceived breach of the peace may occur.
So, how can such heated issues be resolved amicably?
The courts do not like these disputes. They frequently occupy a disproportionate amount of time and can be costly for the parties involved. Consequently, settlement ‘out of court’ is always the aim.
There is a ‘Practice Direction’ requiring the parties in such disputes to make reasonable attempts to resolve them using ‘ADR’ – i.e. alternative dispute resolution. This frequently involves mediation, or the appointment of a joint expert, such as a surveyor. However, as noted above, many disputes involve complicated legal issues, such as estoppel, adverse possession or prescriptive rights, and not just the interpretation of plans. Here a specialist solicitor is required.
The involvement of a specialist solicitor is also helpful if the dispute has deteriorated to the stage where the parties can no longer have a sensible conversation.
A solicitor who specialises in boundary disputes and property law can research the boundary and the history of usage and either establish where the boundary is or prove that rights have been acquired which make the original position of the boundary no longer important.
Legal disputes over boundaries have been known to drag on for years. Getting the right advice early on – whether the news is good or bad – can save you a lot of stress and financial hardship.