Annoying Boundary Dispute

Annoying Boundary Dispute

Postby bristolmatt » Thu Feb 25, 2010 2:48 pm

We are currently in the middle of an on-going boundary dispute with a neighbour and need a bit of advice...

We purchased the house in the summer last year. Our plot is quite large and used to be the site of an old quarry, so to the rear there is a high quarry wall surrounding most of our rear garden. The previous owner bought the plot and built the house back in 1961 and we bought it from his estate after he passed away early in 2009. Because the quarry wall is so high and there are houses on the land above whose gardens back onto the quarry edge, the previous owner also bought a narrow strip of land at the very top of the quarry edge from the previous owner of one of these houses and a covenant was included into the deeds for our property stating that a satisfactory fence had to be maintained by us along this boundary line (we presume to avoid the risk of anyone from the neighbouring properties falling over the quarry edge - which would most likely be fatal, as it's quite a drop).

When we moved in we were quickly approached by the gardener (who had been maintaining the garden at our property for the previous owner for over 10 years) and one of our other neighbours. They both told us that the owner of the house above us had, soon after the old guy who used to own our house had passed away, removed most of the old hawthorn hedge that used to run all along the boundary line and had started to use the path at the quarry edge as his own. At the same time he erected a chain-link fence roughly where the old hawthorn hedge used to stand and put in a gate from his garden through this fence and onto the path. Because he destroyed the old path when he removed the hedge, he re-laid a new grass path. On several occasions after we moved in we saw him walking the path and even on one occasion pruning one of the shrubs on the quarry edge (which we know is ours).

Our other neighbour (who we also share a boundary with) told us that they had had problems for years with the same people and advised us not to even bother trying to discuss it with them and to make the issue as formal as possible straight away by issuing a solicitors letter. This we did - our standpoint being that the land registry and OS plans for both properties clearly show a detail of the quarry edge itself and also show the boundary line to be stepped back from this and the path inside our curtilage. We requested that they cease using the path and remove the access gate.

They responded, claiming that the hawthorn hedge was always entirely within their boundary and that they laid the new grass path in the same position as where the hedge used to stand. The very narrow strip of land between the edge of the new path and the quarry edge they claim is all that we own. They also claimed to have had various discussions with the daughter of the previous owner (who lived at our house for many years before and on & off in the months after her father passed away and before we moved in). We have since contacted her directly and she has confirmed that her understanding is that we do indeed own the path and that her father always maintained it independently since he built the house in the 1960's. All the discussions our neighbour stated they had with the daughter where she did not object to what they were doing, she denies ever took place.

On talking to the daughter it seems that her father did erect a fence many years ago as the covenant requires, but that the hawthorn hedge (planted by the previous owner of the house above) pushed against it as it grew and so he had to remove it. The hawthorn hedge was very well established and quite tall and thick by the time it was removed. The daughter has also informed us that the new chain-link fence erected by our neighbours above is roughly where she recalls the boundary line being. Some of the old hawthorn hedge remains at one end, although it has been cut back quite heavily so it’s difficult to know for sure how thick it used to be here.

We have looked at the google-earth image of our plot which shows the property before the hawthorn hedge was removed. As far as we can tell from this, the centre line of the hedge seems to be consistent with the boundary lines on the land registry plans. The image clearly shows the shrubs at the quarry edge and a decent size path between this and the extent of the hedge (our house is the yellow dot, the neighbours above us are the blue dot).

We are now at a complete impasse, as despite all the indications on the plans and statements from the gardener and the daughter, the neighbours still claim the path is theirs. Because most of the original landmark (the hedge) that used to mark the boundary has been removed, we have very little to go on other than the various plans and the old google-earth image. Our solicitor has stated that the balance of the evidence is in our favour especially given that a fence was once erected (without any dispute) on our side of the hawthorn hedge and that the path has always been maintained (with no contribution from the neighbour) by the owners of our property.

Our issue is not so much the land itself (which is of little use to us other than giving us privacy and some access to prune the shrubs on the quarry edge), but more that we feel we need to comply with the covenant and erect a fence asap - as we don't want to be in a situation whereby anyone could access the path and fall over the edge. We have been advised by our solicitor to appoint a surveyor to try and establish the boundary line location and our thinking is that once we have done this, we will simply erect a fence an inch or so on our side of this and leave the matter there.

Does this seem to be the best course of action or can anyone offer and further advice as to how to resolve this without needing to issue court proceedings?

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Last edited by bristolmatt on Fri Feb 26, 2010 9:15 am, edited 1 time in total.
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Postby essex_chris » Thu Feb 25, 2010 5:27 pm

I must admit i am having trouble picturing where the boundary is from your point of view.

One of those photos shows the old hawthorn hedge, and the quarry edge, and a gap between them. Are you saying that there was another hedge or fence between the two?

The Title Plan to me looks as though your property is up to the bottom of the quarry edge - unless i have got the wrong end of the stick.

The yellow dotted property represents them, and the blue dot reprsents you - have i got that right?
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Postby bristolmatt » Thu Feb 25, 2010 7:53 pm

Sorry I maybe didn't explain properly...

We are the yellow dot and our neighbours are the blue dot. The title plan picture is actually a copy of theirs that we obtained from the land registry as ours plan is a more recent drawing that doesn't actually show the quarry edge at all - just the boundary line.

The second photo has their house on the left with their new chain-link fence and the newly laid grass path beyond the fence line (but according to them still part of their land). Their claim is that all the land up to the RH edge of the grass path belongs to them and our strip of land is the very narrow rough strip to the right of the new path. It looks relatively wide in the second photo but in reality, much of it is very narrow (see the third picture) and not safe to walk on without possibly falling over the quarry edge and into our garden 30ft below. Certainly not enough room for us to safely access to erect a fence. Our gardener has stated that he used to regularly mow the path, so we know it must be at least wide enough for a commercial lawn-mower to freely access.

The first picture is looking the other way with the hawthorn hedge on the right (marked by the yellow line on the google-earth image).
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Postby essex_chris » Thu Feb 25, 2010 9:31 pm

Thank you for clarifying.

It does seem quite clear to me that your neighbour is in the wrong by using a path on the cliff side of the hawthorn hedge.

The title plan identifies which property is his, and gives an idea of the general boundary - but do you have clearer plans with dimensions in the deeds?

What would be your ideal outcome to all of this? He can keep his fence, or that he remove it and plant a new hedge to replace the one he removed?

Or would you be happy with the new fence staying but that the grass path is clearly yours and he should not use it? Are there any rights of way over that cliff edge path?
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Postby bristolmatt » Fri Feb 26, 2010 8:51 am

No rights of way on the path. There are no measurements on any of our plans. Our neighbours have produced a very poor photocopy of a 1/500 scale drawing done when the strip of land was bought by the previous owner of our house, but the dimensions on it anyway just state the lengths of the various sections of the boundary and make no reference to any fixed points or structures that can be used to determine where the boundary lies between our two properties. Even in this plan however, the boundary is clearly shown to lie stepped back from the quarry edge. This plan copies very poorly, but I have enhanced it below. You can see the boundary line (in RED) is well away from the marks indicating the quarry edge (in BLUE).

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We have no problem with his fence as it has been built on his land. Our problem is that he is laying claim to the path as well and has installed access (that previously never existed because of the hedge) from his garden onto the path. Standing on the path gives you a direct line of sight right into our entire back garden and all the windows in the rear elevation of the house, so we obviously also have a privacy issue if our neighbours use the path as their own.

These neighbours apparently have a history of being extremely difficult and confrontational over their boundaries. We are obviously suspicious of their intentions as the removal of the hedge happened soon after our hosue became un-occupied when the previous owner passed away. We also can't see why, if our neighbour really thinks the path is his, he would have built his new fence where it is. Surely he would have taken the opportunity to extend his garden area as the path is of no practical use to him as it stands.

All we want to achieve is to determine where to build our fence so that our neighbours can't access the path and we comply with the covenant in our deeds.

Many thanks for all your advice on this!
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Postby essex_chris » Fri Feb 26, 2010 8:06 pm

Have you tried measuring his boundary to see that each side of his property adheres to the dimensions as provided to you?

It does look quite clear that the path is on your land, but with a general lack of dimensions it's hard to say exactly where the boundaries lie. Have you actually had a walk around the two properties with both of your title plans and whatever documentation you have to try and establish a clear idea of where both of you stand?

You neighbour might well believe he owns it, but should be able to show a justification why. Those dimensions are not exactly clear - so it should be impossible to use them to measure as it's not feasible to determine where to measure from.

Assuming that you could agree to a position of the boundary - do you want to fence and gate the land yourself? What reaction has any approach to your neighbour to discuss the matter provoked? The plan shows a strip of land at the top of the cliff to be yours - where would he consider that boundary to be exactly?

Would you be prepared to sell him that path, but simply have some kind of covenant to a right of way, and appropriate maintenance - it is a cliff overlooking your house after all.
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disputed land

Postby prcphillips » Fri Feb 26, 2010 10:02 pm

If there is a covenant does it run with the land or was it a personal covenant.
If the former what land has the benefit of the covenant?
When was your land registered?
Answers based on 40 years of Property Developing
"The University of Life"
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Postby bristolmatt » Wed Mar 31, 2010 11:14 am

Recent developments in this case are that our neighbour has responded basically disagreeing with all our arguments and still laying claim to the entire strip of land where the path lies.

I have to say that we really don't understand their position as they do conceed that the original hedge represented the boundary line, yet are still laying claim to the path, even though it is quite clear that at least one section of this is on our side of the small length of original hedge that remains.

There seems to be no way we are going to resolve this without further intervention of some kind - either by taking it to court or by getting surveyors to determine the position of the boundary line. Our neighbours have suggested that we both appoint surveyors who should then meet and agree the position of the boundary line together, recommending a settled line to both parties.

We obviously want to get this resolved without going to court, but I am not sure if the above route is the best way to go now? Does anyone have any experience of this sort of procedure and how it's likely to work? I assume that the surveyors will only be interested in the available title plans etc. and ignore all the other (andecdotal) evidence about who did what in the past etc. If so, this would appear to work in our favour as all the plans and drawings seem to show the strip of land set back a significant distance from the quarry edge.
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Postby pilman » Thu Apr 01, 2010 2:13 pm

I have just read this posting and tried to understand the difficulty you describe.
You are now saying the neighbour is suggesting each of you employs a surveyor to decide the boundary.
Does it matter for all practical purposes who owns the land above your plot if a tall wooden fence was erected on the edge of the quarry.

You will not be overlooked, you will not need to maintain the path, you will not have to pay any costs if an agreement is made with the neighbour that he erects and maintains a close boarded wooden fence in return for a transfer of land in his favour.
Am I missing some important reason why you need to retain ownership of the land above your plot other than a need to ensure privacy?
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Postby bristolmatt » Thu Apr 01, 2010 3:43 pm

We don't want a tall fence at the quarry edge. At the moment it's a nice looking green boundary and we want to keep it looking this way. There are no fences anywhere else on our land, so we don't want to add one here. We also do need to have access to the quarry edge from above so we can maintain the shrubs that grow there (as it's virtually impossible to maintain them from below due to the overhangs etc. in the quarry face).

I appreciate that it may be easier to simply let our neighbour just have the land (seeing as we don't use it for anything), but we honestly don't see why we should if it does indeed belong to us. The previous owner of our house purchased this strip of land for a good reason so we don't see why we should simply give up and conceed to our neighbour just because he's being difficult.

We are confident that any joint surveyor will come down in our favour as all the plans and drawings that exist clearly show the boundary set back a reasonable distance from the quarry edge. Our neighbour is not arguing that the quarry edge has eroded backwards over time, so the quarry edge should be a fixed landmark that can be easily used to take measurements from.

I am not sure the two-surveyor solution will get us any further along as I would fully expect our surveyor to come down on our side and theirs to give an opposite view. The joint surveyor option seems like our best bet to avoid court proceedings and giving us a good chance of getting a resolution. I assume that is both parties agree to be bound by the final decision then it would be very difficult for either party to then take the case to court and stand a chance of winning? If we are in fact wrong and the land does belong to our neighbour then we would of course conceed, but logic seems to dictate that the path must belong to us. Otherwise, why would our neighbour have erected his (new) fence set back 3ft from where he belives the boundary line to be (especially when his garden is already very tight in this area) AND why would the previous owner of our house have purchased this land (and agree to have a covenant put in the deeds), if there is no actual means of ever accessing it to erect a fence?
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Postby pilman » Thu Apr 01, 2010 4:28 pm

You say that you do not want a tall fence but will erect a fence even if it is inches from the existing wire fence, once you confirm the boundaries of your land.
I am assuming that your property was not registered when you came to buy it because you say the original owner was there from 1961.
It would mean that all of the deeds are in your possession from the original land purchases.
You are now considering the costs of hiring a surveyor having already incurred the costs of a solicitor writing to the neighbour, who was unmoved by that approach and still insists on his ownership of the path outside the original hedge line.
You are probably aware that a statutory declaration needs to be made before a solicitor who charges a fee of £5 to have it sworn before him.
If you can obtain statutory declarations from the previous owner's daughter and gardener and the neighbours who saw the hedge removed during the period after the owner's death this will not cost you much compared to engaging a surveyor.

You have confirmed that you are in no doubt as to the correctness of your boundary position and the existing part of the hedge surely confirms this.

Obtaining statutory declarations from all objective sources will be an invaluable aid to settling the matter before spending more serious amounts of money. It could be the method of convincing the fence owner to capitulate and remove the gate if you show him the written evidence that would be comprised in these documents.

With these in your possession it would be simpler and less expensive to make an application to a Court for an injunction to stop the fence owner incorporating a gate in the fence because this is causing a trespass on to your land, rather than trying to reach an agreement via surveyors and solicitors that costs far more than a single application to a court.
Or are you not that convinced about the boundary position?
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Postby bristolmatt » Thu Apr 01, 2010 4:42 pm

pilman wrote:You say that you do not want a tall fence but will erect a fence even if it is inches from the existing wire fence, once you confirm the boundaries of your land.


Of course we have to erect some fence to comply with the covenant, but would prefer this was something of our design (i.e. chain link we can grow something against as far back as possible) rather than a solid wooden boarded fence right at the quarry edge.

Thanks for the advise about the statutory declarations though - will cetainly investigate this more if it's something that is going to add weight to our case. But, seeing as our neighbour is ignoring the written letter we already have from the daughter though, I'm not sure this is going to change their mind. We can get further statements from the gardener and our other neighbour though which I guess can only help.
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Re: Annoying Boundary Dispute

Postby bristolmatt » Tue Sep 13, 2011 3:49 pm

Been a while since my last post... To bring things more up-to-date, last year our NFH decided to take us to court through the small claims court even though we were still communicating via our solicitors to try and resolve the situation. After much back and forth through solicitors we had an initial hearing where the judge bumped the case up to the fast track as she felt it was wholly unsuitable to be seen in the small claims court. As the fast track obviously involves far greater cost implications than small claims, immediately after the hearing we offered to simply split the difference of the strip of land that was in dispute with our NFH. This was rejected by them though. The judge recommended that we appoint a joint surveyor to determine the boundary line, which we finally got arranged a couple of months ago. Just got the report back which 100% agrees with our understanding of where the boundary line is (i.e. their existing fence). Added bonus (of no relevance to the case, but it made us chuckle) is that the surveyor also worked out during the survey that our NFH appears to have lost about 4ft of land to their neighbour at the side, but has no chance of ever getting it back due to adverse posession.

Next court hearing is due in the next month or so. We now have two independent witness statements and the surveyors report that fully back up our position, so feeling pretty confident of a decision in our favour. Stuggling to see what our NFH will come up with next, but they are nothing if not stubborn, so I expect they'll try and introduce some element of doubt to the surveyors findings.
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Re: Annoying Boundary Dispute

Postby ukmicky » Tue Sep 13, 2011 9:16 pm

If you win you will also need a order preventing them from trespassing on the land
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Annoying Boundary Dispute

Postby hawky99 » Wed Sep 14, 2011 1:16 pm

Prior to any court proceedings, and if time allows, the more visual evidence you have for a water tight case the better your case. As an aerial photographer of over 15yrs, I not only under current day aerial photography but I also specialise in tracing historical imagery (both verticals & obliques) for private residential clients, surveyors and solicitors, from over the last 70yrs, from over 300 UK and foreign Govt, Public, MoD, Commercial and private sources, and have done so for a number of years.

Essentially with visual mapping and photographic evidence say from late 60's after purchase or late 80's one may find a close enough image to show definitive visual evidence of the boundary as there is 4-5ft involved, quite large as most boundary disputes go and costs are far less than a couple of hours with a solicitor ! Contact me off-line and I can send email info. to see if we can help.

As a very recent contributor to garden Law and this reply may appear to be touting for business, but I do have a genuine satisfaction of helping those people whose 'boundaries get confused over time'. Boundaries Disputes are both annoying , long winded and expensive to pursue ... expensive into the 10's of thousands, so doing the ground work, to ascertain to the best of your ability whether you are right or wrong, is essential. I hope I can help.
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