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Nyree Applegarth  

Partner, Dispute Resolution

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Nyree Applegarth 2014

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Don’t sit on the fence if you want to avoid boundary disputes

 

Article date:  04/03/2015

Anyone watching the BBC adaptation of JK Rowling's, The Casual Vacancy will be familiar with the issues that can result from disputes surrounding boundary lines. And though real life disputes may not often feature drugs, ghosts or murder, for those involved the impact can be just as dramatic.

"Boundaries, fences and high hedges are perpetual bones of contention between land owners and frequently the subject of litigation, much to the dislike of the judiciary," comments Nyree Applegarth a specialist in property disputes at Higgs & Sons solicitors.

"All too often one party thinks they know the position of their boundary, based on a misconception or an incorrect reliance on a Land Registry Title Plan."

Nyree, a partner based in Higgs' dispute resolution department believes that problems often occur where parties rely on title plans that can often be unclear.

"Unless a boundary has been 'determined' either by a Court or the Land Registry, then any red edging on a title plan is for indication purposes only and not definitive.

"To properly determine a boundary, a land surveyor should be instructed and the starting point is to look at all historic conveyances dating back to the time when the two parcels of land were owned by the same party and what provisions were made, if any, when the parcels were separated."

She feels problems may be compounded by the vagaries of the conveyancing system which rarely provides accurately measured transfer plans.

"More often than not, the transfer simply refers to a plan showing the land for 'identification purposes only' or, if boundary features, such as a fence, are already in situ, and there is an obligation on the buyer to erect a fence, the plan shows a boundary with a 'T' mark on it, and the transfer obliges a party to be responsible for that particular boundary.

"Based on these assumptions, a party may then try and rely on the existence of a 'T' mark as evidence that it is their boundary or that they own a particular boundary feature."

But this is where particular caution is advised.

"In a recent Court of Appeal decision (Lanfear -v- Chandler) the Court confirmed that a 'T' mark on a plan is only one factor (and not necessarily the determining factor) to be taken into account when trying to ascertain the precise location of a boundary and the ownership of it.

"To determine a boundary, a Court will look at a number of factors, including the conveyancing history, physical features on the ground and witness evidence.

"For a party to assert that they know where their boundary lies without the benefit of legal advice and a boundary surveyor, is fraught with difficulty. To do this may lead to a protracted and costly dispute, and so we would always recommend seeking specialist, expert advice."

For further information on issues arising from boundary disputes, please contact Nyree Applegarth at Higgs & Sons solicitors on 01384 327 151 or via nyree.applegarth@higgsandsons.co.uk

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