Property Boundaries

Lord Kennedy of Southwark Excerpts

Thursday 15th January 2015 Grand Committee

[Lord Kennedy of Southwark (Lab)]

My Lords, I start my remarks by thanking and paying tribute to the noble Earl, Lord Lytton, for putting down this important question for debate today. In preparing for this debate, I read a number of very useful documents that gave sensible and practical advice on dealing with property boundaries. The overriding theme I picked up was the importance of discussion and communication with your neighbour, and of seeking to find a solution on a reasonable basis. The last place that anyone should want to find themselves in seeking to deal with these matters is a court of law. That, in my opinion, is very sensible advice. Every now and again a case is reported in the media in which a boundary dispute got completely out of hand, and both sides became involved in expensive litigation which cost far more than the worth of the boundary they were actually arguing about. This is, of course, in addition to the stress and anxiety people suffer in dealing with such matters.

In his remarks to the Grand Committee, the noble Earl highlighted the point that in many cases the boundaries for registered and unregistered properties are poorly defined. That is where the problems start. Relying on the Land Registry against a backdrop of Ordnance Survey mapping of the general position of the boundary may not provide the detail required to resolve the problem. I am an elected member of Lewisham Council, and at a recent planning committee meeting which discussed an application for an extension to a resident’s house it emerged that most of the garden was actually owned by Lewisham Council, which owned a long strip of land that went through a number of gardens behind properties. No one seemed to have any idea why the council owned the land or for how long it had owned it, but own it it did. It was not a huge problem in that case, but it illustrated to me how in many cases property boundaries can be ill defined and that, as the noble Earl said, can bring significant difficulties.

Clear boundaries are important, and it is good advice to get the boundaries of your property clear with your neighbours. As I said, and as the noble Earl mentioned earlier, relying on a Land Registry guarantee of title is not the protection that some people think it is. The noble and learned Lord, Lord Hope of Craighead, usefully outlined the position in Scotland. Not for the first time, we could learn valuable lessons from how property law operates in Scotland. To resolve any dispute, speaking to your neighbours is of paramount importance, as is not taking action that would be seen as inflammatory, such as submitting a planning application or using any other means to reclaim land. Reaching an amicable solution to the dispute is in the interests of all parties.

Problems can occur when boundaries are not clear or have become confused over time. Hedges, fences, stone walls or other physical barriers might not be the actual boundary at all but have become seen as the boundary. As I said earlier, minor disagreements can quickly escalate into major disputes involving solicitors and expensive litigation. When agreement cannot be reached between the parties themselves, the objective should be to resolve the dispute at the lowest common denominator. For example, that could involve chartered land surveyors or chartered surveyors who specialise in boundary work making an expert determination. That could be legally binding on the parties concerned if they agree that it is to be so. There are a number of advantages to this method, which is confidential, speedy, cost effective and final, but actually this procedure is not very popular or often used. I am not sure why that is. Perhaps it is because people are not aware of it, and by the time that professional people get involved lawyers are often needed, as it has come to a court action.

As with other disputes it is possible to go through a process of mediation, by which a settlement is negotiated between the parties that they can live with. However, for this to work there has to be a willingness to negotiate. That involves give and take, and being prepared to enter into the process with an open mind about the discussion and the options for reaching a solution. It is possible that at the end of a mediation process one party will feel that the outcome is unsatisfactory, but if people enter the process with an open mind it can resolve matters. It is also worth noting that the advantages of mediation are that the parties arrive at the agreement themselves, and in reaching that agreement hopefully get a better understanding of the position of the other side.

Moving on from these ways of seeking agreement, people can often find themselves at the land registration service of the Tribunals Service, the county court or the High Court, in certain circumstances. All those options begin to cost quite a lot of money. It does no good to enter into disputes before courts and tribunals that, in the end, cost more to resolve than the value of the land or boundary in question.

The Government need to act on this, and the noble Earl, Lord Lytton, has made the case today with a sensible solution to the problem before us. We need an effective link between the public and the Land Registry so that, where required, the position of boundaries can be formally established and recorded without recourse to litigation of the type I outlined earlier.

As the noble Earl suggested, to achieve that there should be a system of notification of a boundary proposal to neighbours which, if disputed or ignored, would trigger a dispute resolution system backed by a requirement to register the outcome with the Land Registry as a formal determined boundary. It would be similar to the process that operates under the Party Wall Act 1996. It would ensure that the vast majority of boundary disputes were removed from the courts, but without in any way preventing an appeal in appropriate cases. We have only to look at how many party wall cases are appealed to the courts to see the effectiveness of such a measure.

In conclusion, I again thank the noble Earl for raising this issue and I look forward to the response of the noble Lord, Lord Faulks.