Where to draw the line?

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Boundary disputes are among the most expensive and acrimonious litigation. It is rare to find an area of law in which a "point of principle" so often leads to such disregard of otherwise compelling considerations such as time, energy and cost. Kerry Bretherton QC of Tanfield Chambers provides a summary of some of the main legal principles applicable in boundary disputes that RICS professionals should be aware of.

Quality of evidence is crucial

The role of the expert in these cases is crucial. A boundary dispute can be won or lost on the quality of the evidence of the expert. Indeed, in Jones v Murrell [2016] EWHC 3036 (QB), an appeal against an award by a jointly instructed expert on the basis that he had made a mistake of law failed; the terms of the instruction envisaged that he would look at legal documents and so could only be challenged if he departed from the terms of his instruction.

Physical features can be valuable evidence

In Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894, at 896, Lord Hoffman held that topographical features, present at the time the conveyance was carried out, can be relied upon. More recently, in Pennock v Hodgson [2010] EWCA Civ 873, at para 12 the Court of Appeal considered the position and held that "looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date."

Accordingly, detailed evidence of physical markers should be obtained at an early stage, including photographs. There may be cases in which a dispute has been so long running that the client has obtained photographs for the purpose of litigation. But, often of greater assistance, are photographs which were obtained for unrelated matters, such as a birthday or weddings (so that the date of the photograph can be ascertained), with physical features on the property often in the background. Assistance can also be derived from aerial photographs, any planning records held by the local authority and from ordnance survey plans.

Such reports should be detailed and include reference to all relevant features apparent during the inspection. The site plan should record all of the relevant physical features and age of those features in so far as possible in the context of the conveyance. It may be that inspection of the site can lead to identification of evidence which was not immediately obvious or uncovering supporting evidence such as the family photographs mentioned above.

The hedge and ditch presumption

One of the most common physical features is a hedge and ditch. It is such a common marker that a common law presumption known as the "hedge and ditch presumption" exists. Where there is such a feature, it is presumed that the boundary is on the opposite end of the ditch from the hedge, as set out in Vowles v Miller 128 E.R. 54. The rationale underpinning the presumption is that the person who dug the ditch did so on his own land and digs to the extremity of that land leaving the soil dug out on his own land. This is a rebuttable presumption and so evidence to the contrary or other factors may mean that the presumption does not apply in a particular case.

Where a fence is built on the boundary, there is a presumption that the fence itself is owned by the landowner on whose side of the paling the fence post stands, Hawkes v Howe [2002] EWCA Civ 1136. This is because it is assumed that the landowner will place the post on his own land and attach the paling on the opposite side, thus enabling maximum use of his own land. Once again, this is a rebuttable presumption which can be displaced by other relevant factors and evidence.

Ultimately, the best reports often lead to offers to settle from the opposing party and in so doing will save the client further costs and the risks inherent in litigation.

This article first appeared in RICS newsletter and can be viewed here.