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Expert Witness Terms of Engagement
Boundary Dispute and Right of Way Surveys Derby and Derbyshire
Property owners are often neglectful of their boundaries until it is to late. Once the neighbour has chopped down that tree that you thought was yours it is extremely hard to put it back up again.
However if you have suitable tile deeds then it is possible to attempt to resolve many disputes. Measurements can be taken and pegs knocked in to enable a boundary line to be established. Alternatively documents, photographs and drawings can be prepared to support (or disprove) a county court action for compensation and or to get a hedge or fence re-erected in its correct location.
Unfortunately the help we can give is only usually only as good as your title deeds. The current land registry title plans are not very accurate and only enable boundaries to be estimated to the nearest half a metre. This is due to the small scale of the plans on which the boundaries of a property are drawn. It is thus well worth saving copies of old tile deeds with measurements or drawings. When buying a property it is wise to agree the ownership of any unclear boundaries with your prospective neighbours.
In the absecne of title deeds it may be possible to draw conclusions about the line of a boundary or right of way from features on the ground old photographs or possibly OS sheets. Steve Butler has access to a range of historic OS sheest some dating back to before 1900. Care should however be taken before relying on OS sheets. The purpose of the maps is not to identify legal boundaries but features on the ground that may be legal boundaries but may also just be features or near to leglal boundaries. The OS plans are also prepared at a scale of 1:1250 or 1:2500 where 1mm on the map is 1.25m or 2.5m on the ground. The maps are thus difficult tif not impossible to scale off. The maps whilst usualy very accurate can contain errors and were presumably prepared with the care appropriate to a map on such a large scale.
My land registy account also enables me to access the Title Register and Title Plans for nearby properties and more importantly I can often get copies of the original conveyance documents for nearby properties.
Independent RICS surveyors expert witness report on a boundary dispute and nuisance neighbour for county court
This boudary survey report was in respect of a garage. A neighbour had constructed a raised hardstanding using the garage as a retaining wall. This had allowed water to run of the hardstanding into the garage staining the walls and causing pools of water on the floor. Our boundary surveyors were able to prepare a report suggesting that the boudary was some six inches away from the garage.
Expert surveyors report on the boundary of two properties in Derby
Here a property owner claimed that water was entering thier garage due to the ground level of the adjacent property having been raised but we were able to show that this was not the case.
Boundary Dispute Law
Judge Barker recently sumarised much Boundary Dispute Law that had gone before in the case of Acco and Severn 2011
Extract from ACCO PROPERTIES LIMITED - and - SEVERN 2011 - Comments of HONOUR JUDGE SIMON BARKER QC 2011
‘Before turning to the facts and expert opinion evidence, I should briefly remind myself of the principles relevant to determination of boundary disputes, at least insofar as they are potentially applicable to this case:
1 Where, as in this case, the property in question is registered land, the file plans show only general boundaries and not the exact line of the boundaries unless the property is said to be “more particularly described in the plan.”
2 Similarly, Ordnance Survey plans, if not forming part of the registered title as filed plans, are no more than a general guide to a boundary feature, and they should not be scaled up to delineate an exact boundary. This is because the lines marking the boundaries become so thick on being scaled up as to render them useless for detailed definition.
3 In order to determine the exact line of a boundary, the starting point is the language of the conveyance aided, where the verbal description does not suffice, by the representation of the boundaries on any plan, or guided by the plan if that is intended to be definitive.
4 If that does not bring clarity, or the clarity necessary to define a boundary, recourse may then be had to extrinsic evidence - such as topographical features on the land that existed, or maybe supposed to have existed, when the dividing conveyance was executed.
5 Admissible extrinsic evidence may also include evidence of subsequent conduct where of probative value in showing what the original parties intended.
6 Evidence of later features - that is, later than the earliest dividing conveyance - may or may not be of relevance. The probative significance of such evidence depends upon the extent to which, if at all, the dividing conveyance, or evidence of its terms, exists.
7 Where a boundary is in dispute, it is important to bring certainty to the determination by proclaiming the boundary and not leaving the plot “fuzzy at the edges” (Neilson v Poole (1969) 20 P&CR 909, Megarry J).
8 Even where a boundary line may be determined by reference to a conveyance, other evidence may be admitted and probative in establishing a different boundary obtained by adverse possession, showing enclosure of the land in denial of the title of the true owner. As the phrase implies, title is established by intentionally taking exclusive possession of land without the consent of, and adverse to the interests of, the true owner, and maintaining such possession continuously for the limitation period.
9 As to informal boundary agreements, the statutory requirement that contracts for the sale or other disposition of land be in writing does not apply. That is because the purpose of such agreements is to demarcate an unclear boundary referred to in title documents and not to transfer an interest in land.
10 Such agreements are usually oral and the result of neighbours meeting to avoid or resolve a potential or actual dispute. However, there is scope for a boundary agreement to be implied or inferred - that is, to be the logical conclusion to be drawn from primary facts.
11 When bearing these principles in mind as the platform on which to place and examine the facts, a judge should have regard to three further important yardsticks or rules of thumb. These are: (1) when considering any acquisition of property, it is vital to consider what a reasonable layman would think he was buying; (2) every case turns on its own facts; and (3) the task of the court is to assess all available and admissible material in arriving at its answer, and then to achieve the correct answer.
Recent and important cases are:
West v Sharp (1999)
Not every interference with an easement, such as a right of way, is actionable. There must be a substantial interference with the enjoyment of it. There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction. Thus, the grant of a right of way in law in respect of every part of a defined area does not involve the proposition that the grantee can in fact object to anything done on any part of the area which would obstruct passage over that part. He can only object to such activities, including obstruction, as substantially interfere with the exercise of the defined right as for the time being is reasonably required by him.”
B&Q v Liverpool and Lancashire Properties [2001]
B&Q used had a right to park lorries awaiting unloading over a large area of land leased to a nearby tenant. The near by tenant wanted to build on parts of the land on which B and Q had a right to park.
Held
A dominant landowner is entitled to the full extent of any easement, not just what he reasonably requires
For any minor interference, damages would be available
For any substantial interference, injunctions would be available
Blackburne J concluded that there are three propositions which can be deduced from past cases
(1) the test of an ‘actionable interference’ is not whether what the grantee is left with is reasonable, but whether his insistence on being able to continue the use of the whole of what is contracted for is reasonable;
(2) it is not open to the grantor to deprive the grantee of his preferred modus operandi and then argue that someone else would prefer to do things differently, unless the grantee’s preference is unreasonable or perverse;
(3) if the grantee has contracted for the ‘relative luxury’ of an ample right, he is not to be deprived of that right in the absence of an explicit reservation merely because it is a relative luxury and the reduced, non-ample right would be all that was reasonably required. He summarised the third proposition as follows: ‘In short, the test . . is one of convenience and not necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?’
Emmett v Sisson [2014]
Here a right of way ran along the front of the grantees property. The owners of the land containing the right of way tried to construct a wall along the side of the right of way just leaving an opening for access to the grantees property.
Held under the interpretation of the conveyance document that the grantee was entitled to the benefit of their luxurious bargain and could access the right of way at any point at which it touched their property.
