Boundary disputes and neighbour disputes are frequently complicated and difficult (or sometimes impossible) to determine with true certainty. Often the documentation providing legal evidence of the intended boundary is of a poor and inaccurate standard and a great deal of experience and expertise is required to interpret this information and to make a meaningful estimate of the intended boundary location.
It is not at all unusual to find that the boundary dispute concerns only a small area of land, often concerning only a few inches of discrepancy regarding the position of a boundary and sometimes of no measurable financial significance. However, usually this does not lessen the intensity of feelings in respect of a boundary dispute and it does not lessen the need for good quality, sensible and considered advice from an experienced Surveyor regarding the true and intended position of the disputed boundary. Certainly, there is no benefit at all in telling a client ‘what they want to hear’ in a boundary or neighbour dispute if this is not an opinion which would be defensible in court – because that is ultimately where a boundary dispute may end up.
SMITH MARSTON LLP - DEALING WITH BOUNDARY DISPUTES
At Smith Marston, we have much experience of dealing and advising on boundary disputes, some of which have been resolved relatively easily and some of which have ended up in Court. In this respect, one of the partners of the business, Philip Smith has been involved with numerous boundary disputes over the years, including the production of Expert Witness reports and, on occasions, he has also appeared in Court as an Expert Witness.
When dealing with a boundary dispute, we use a Nikon Total Station device to make highly accurate measured survey plan drawings of the physical features in respect of a disputed boundary. The drawings produced using this are accurate to within only a one or two centimetres in most circumstances. This provides great certainty regarding the existing physical features and is a very useful basis upon which to then consider the legal documentation regarding the intended position of the disputed boundary.
It should be noted that Philip Smith is the only Surveyor in the North East region (and one of only two in the entire North of England) to have been accepted onto the RICS Expert Witness Registration Scheme with regards to boundary disputes. The details can be found on the following link:
http://www.rics.org/ricsweb/expertWitness.aspx?ExpertWitnessRegions.Id=NER&ExpertWitnessSpecialisms.Id=2&ExpertWitness=true
AN ALTERNATIVE TO COURT
An alternative approach to hopefully avoid a boundary dispute or neighbour dispute ending up in court is the RICS Neighbour Dispute Resolution Service. The RICS description of this is as follows:
"A fast effective alternative to litigation and the courts at a fraction of the cost.
Many neighbour disputes relate to property, this new service provides a referral service to surveyors, solicitors, the public and the wider legal profession who require expert third party assistance with neighbour disputes.
The service uses a fixed price, structured, non adversarial approach. Application is made to RICS who make an impartial appointment. Applicants, or their representatives can then use one or more of the following:
Stage 1: Neutral on site evaluation to clarify the facts
Stage 2: Negotiation and encouragement of the parties to compromise
Stage 3: if required, the surveyor prepares an expert evaluation report"
In respect of a boundary dispute, initially, at Stage 1, the Surveyor would be appointed to inspect, measure and provide a report with conclusions regarding the estimated intended position of the boundary. If necessary, Stage 2 would involve the Surveyor acting as intermediary in respect of structured negotiations to hopefully resolve any further outstanding issues between the parties. Finally, if still unresolved, either party can elect to use the report as the basis for an Expert Witness report if Court remains the only means of resolving the boundary dispute.
It should be noted that, in order to reduce the pressure on the Courts system, there is great emphasis placed upon parties to make all reasonable efforts to resolve disputes out of Court. The use of a scheme such as that described above would certainly meet this requirement..
The link for the RICS brochure for this service is attached here: RICS Neighbour Dispute Brochure
Philip Smith is registered with the RICS Neighbour Dispute Resolution Service.
CONTACT US
If you have any queries regarding a potential boundary dispute or neighbour dispute, please call Philip Smith for a brief telephone discussion to provide general advice and guidance.
