Boundary Disputes

A boundary dispute arises when two parties disagree about the exact location or ownership of the dividing line between their respective properties or parcels of land.

If your neighbour has moved a fence or wall onto your land, this may amount to trespass (unlawful entry onto land).

Sometimes, a trespass also causes a nuisance—for example:

• A wall causes damp to build up on your side.
• The spread of weeds or invasive plants in your garden
• A shed blocks natural light to your windows.
• A structure redirects rainwater into your garden.

Initially you can politely speak to your neighbour to try and resolve the issue informally. Keep a copy of any correspondence or an accurate note of any conversations you have with your neighbour and gather evidence such as photos, plans or surveys to support your position. If direct discussions fail, you should seek legal advice. We can review the title documentation, instruct a surveyor if needed and send a formal letter asserting your position. We will discuss and explore different means for resolving disputes in the most cost-effective manner, however, if necessary, we can represent you in Court. 

The exact layout of boundaries can be very complex. We can start by checking your title deeds and Land Registry title plan, but these documents give a general indication of the boundary only, which means the red line shown is not the precise boundary line. Historic deeds and extrinsic evidence should be considered to provide context. To assess the strength of your position and to progress your claim, you may need to instruct a surveyor to visit your property and conduct a boundary survey. Your neighbour might instruct their own surveyor, and if they disagree with your surveyor on the line of a boundary, which can lead to lengthy and costly litigation. At Herrington Carmichael we understand the various risks and can advise on complicating issues that might arise as the matter progresses.

For further information, please read our article – Think your Title Plan Defines your Boundary? Think Again

Boundaries can change over time or land can pass to an occupier after extended periods of continuous use.

If you’re considering making a claim it is important to understand what exactly needs to be proved, before you make further enquiries and incur legal costs in a matter, which is as follows:

1. That you’ve actually possessed the land and have obvious physical control over it (10 years for registered land, 12 years for unregistered land). Occasional or sporadic use is unlikely to be enough. The possession must be for the full length of time without interruption. If your possession is interrupted, you have a limited time period to bring your claim and might lose your ability to bring a claim.
2. That over that time you intended to possess it to the exclusion of all others, including the legal owner. This might including fencing, locking gates, putting up sings or taking other active steps to prevent access by others. If the owner or any other third parties have had access then this could prove fatal to your claim.
3. That your possession was without the agreement of the legal owner. Any permission, anything from formal written permission to verbal consent can defeat a claim in adverse possession.

You also need to provide strong evidence in support of your claim. Useful evidence includes details of any fencing you have maintained over the period of possession, dated photographs, records of works or maintenance, email/text/letter communications, statements from neighbours, and anything else that shows a clear pattern of control and use. Gaps or inconsistencies in the timeline can be fatal to a claim.

Adverse possession is far from an easy route to ownership and you need to satisfy all of the above requirements.

If you meet the requirements and you are considering make a claim, or facing one, Herrington Carmichael, have an experienced team that can guide you through the process, assess the strength of your position, and help you put forward the best possible case.

Disputes over boundary structures like fences, trees and hedges often arise over a misunderstanding of responsibility for the upkeep or maintenance of those boundary features.

Landowners often perpetuate common misconceptions without reference to the title deeds and other legal documents that determine ownership and maintenance responsibilities. Title deeds can be missing, or unclear or difficult to interpret. Neighbours might have come to an agreement for the upkeep of boundary structures or by conduct over long periods of time.

You might try to resolve issues through friendly discussions with your neighbour, but where ambiguities exist or where an amicable agreement cannot be reached, Herrington Carmichael can assess your matter, provide advise you on your options and potential costs, and assist you with bringing your dispute towards a resolution.

You might have a claim in trespass (unlawful entry onto land) if something physically crosses onto your land without your permission. For example:

• A fence that’s on your side of the boundary.
• A shed or outbuilding that overlaps your garden.
• A wall or driveway extension that cuts into your land.
• Foliage that encroaches on your property or garden.

You may be tempted, but we strongly recommend against interfering or removing overhanging structures you believe to be on your land. Taking matters into your own hands can lead to a claim in damages against you.

In the case of vegetation, you might have the right to “abate” the trespassing parts of the tree or bush, which means you can cut back branches and roots that encroach onto your property up to the boundary line. However, we strongly recommend that you to get prior permission from the neighbour or seek legal assistance first, because it could irreparably sour neighbourly relations and if you are wrong about the position of the boundary, and/or cause damage or instability to the tree, you could find yourself liable in damages and costs.

Sometimes, the encroachment may be small. You will need to consider the extent of harm that these interferences have on your land as the courts may not consider the harm to be ‘reasonable’ enough to justify a claim. This is known as the “de minimis” rule. A claimant can be exposed to very significant costs in pursuing such litigation, and might be ordered to pay the defendant’s costs, even if a minor trespass has occurred.

Herrington Carmichael and assess your claim and assist with negotiating a resolution with your neighbour, and if necessary, we can represent you in Court. 

Two properties might be separated by a wall that is jointly owned, or a wall that one party is obliged to maintain for the benefit of the other (e.g. where the wall holds up the structure of the neighbouring property).

This is known as a party wall, and legislation sets out obligations and responsibilities when one property owner proposes development to or in the vicinity of the party wall.

The legislation sets out notice provisions between neighbours and the requirements for entering into a party wall agreement. Some work might be considered so negligible that it is not worthy of notice and owners proceed in blissful ignorance of the requirements; however, even minor works (like repointing) can cause damage and become a painful and expensive ordeal.

This legislation is designed to allow property owners to carry our work, but which at the same time protects the legitimate interests of the adjoining owner. However, this is a difficult and highly contentious area of law, and it is likely you will need to engage a surveyor experienced in this area of law to guide you through the process. We can work alongside surveyors to successfully navigate through the requirements.  Where a dispute arises, such that litigation is either very likely or inevitable, then Herrington Carmichael have a dedicated Property Dispute Resolution team that can assist.