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As work finally starts on Trump’s infamous wall with Mexico, Alex Hoffman of Pierse McCarthy Lucey Solicitors takes a look at an issue that has soured many friendships over the years – the dreaded boundary dispute…
Boundary disputes have been around as long as property ownership itself and can be a source of bitterness and bad feeling, sometimes even passing down through generations.
Even where a dispute finds its way before the Courts there are rarely any winners. Indeed judges hate to see such disputes coming before them as they are often difficult to adjudicate upon and whatever the outcome, the parties are rarely satisfied and are likely to carry the grievance with them for years to come.
The most common disputes relate to ownership, maintenance or encroachment on a boundary line.
Who owns a boundary wall or fence?
In the absence of definitive evidence one way or the other, the common law position is that a boundary wall between two properties is owned jointly by the adjoining landowners.
You should bear in mind however, that even where a boundary wall is owned outright by one landowner, a neighbour may still have rights, such as a right of support for a structure on their side of the wall.
Boundaries which are in divided ownership are generally split down the middle, with each adjoining owner owning a half share up to the central line.
Each owner can, within reason, do as they wish with their half of the wall, provided that they don’t cause any damage to their neighbour’s side or any structure which might be relying on the wall for support.
It can be extremely difficult however to establish how a dividing wall or fence is owned legally, as title deeds rarely go into that level of detail.
Even where the title to the properties involved is registered in the Land Registry, which holds computerised records of land ownership together with digital maps or filed plans, the Land Registry is very quick to point out that neither the description of properties in their registers nor its identification by reference to a registry map is conclusive on the matter of boundaries.
Nonetheless, a landowner should make every effort to investigate and ascertain the ownership of boundary walls or fences before taking any action or carrying out any works.
Carrying out works to boundaries
Even if you have managed to establish ownership or a right to carry out works on a boundary, you should still engage with your neighbour and ensure that they have no objection to the works being carried out.
If you proceed without your neighbour’s consent, you may leave yourself open to a claim of trespass as well as nuisance arising from any inconvenience caused by the works.
While there are certainly people out there who seem to rejoice in being difficult simply for the sake of it, the vast majority of people are reasonable and taking the time to speak to your neighbour and to come to an agreement with them (even if it means buying them a voucher or bottle of wine to coax them along), could save you a lot of time and expense in the long run.
Where an agreement or consent is achieved, be sure to stick to the terms of the agreement – write them down if needs be.
There’s no point is putting in the effort to reach an agreement, only to end back at square one by going beyond what has been agreed.
Unfortunately there are some neighbours who can’t be won over by all the vouchers and bottles of wine in the world.
For those situations, the Land and Conveyancing Reform Act 2009 introduced a system whereby you can apply to the District Court for a “Works Order”, to allow you to carry out the works, subject to whatever terms and conditions the court decides should be attached.
A Works Order can extend to allowing you, or any people authorised by you, to enter your neighbour’s building or land for any purpose connected with the works and/or require you to indemnify or give security to your neighbour for damages, costs and expenses caused by or arising from the works or likely to be caused or to arise.
Trees on the boundary
A common dispute which many will be familiar with is the issue of trees on the boundary line. Again, in the absence of evidence to the contrary, a tree on a boundary will generally be assumed to be the property of both adjoining landowners.
You cannot therefore cut down such a tree without the consent or agreement of your neighbour.
The situation is slightly different when it comes to overhanging branches or roots which may be encroaching or causing damage.
These may be cut back to the boundary line, provided that in doing so you don’t leave the tree or a boundary fence in a dangerous condition as a result of your actions.
While you don’t necessarily need the permission of the tree owner to do this, it is always preferable that such matters would be discussed and agreed in advance.
If you need to enter a neighbour’s property and cannot get agreement, you may apply for a works order as mentioned above.
Stock proofing
The maintenance of good fences becomes even more important if a person is keeping livestock or animals of any kind.
A landowner, and indeed a tenant, is liable for their stock and for any damage that they may cause, so it is essential that boundaries are kept stock-proof so as to ensure that damage or injury isn’t caused by animals straying onto adjoining lands or onto the public road.
As the old saying goes, good neighbours make good fences, and while having a good boundary fence don’t necessarily mean you’ll always get on with your neighbour, if you do have one you’re half way there.
• The material contained in this article is for general information purposes only and does not constitute legal or other professional advice. No liability whatsoever is accepted by Pierse McCarthy Lucey for any action taken in reliance on the information contained in this article.
