My ongoing boundary dispute ordeal/odyssey (advice sought)

pobjoy

"What would be illegal about a boundary agreement?"

https://www.gov.uk/your-property-boundaries/boundary-agreement-neighbour

In the UK it's illegal to trade or gift land using a boundary agreement. By signing a boundary agreement that declared that the boundary follows the western (hedge) edge of the resurfaced area, I would be breaking the law. My neighbours' solicitor must have been aware of this when they proposed this solution, but they went ahead anyway.

"Can I ask how attached are you to that hedge?"

Any 'solution' that involved removal of the hedge would be unacceptable to me. The hedge is wholly on my property and affords both me and my neighbours privacy. Earlier in this thread I think someone proposed that I removed or narrowed the hedge and constructed a full width path along my side of the boundary. This really wouldn't work as a solution as it would further confuse deeds already rendered baffling by my neighbours actions. In future, solicitors and surveyors could conclude that the new path was the path implicitly referenced in the deeds - a path that my neighbours have the right to use. And I really don't see why I should undertake a costly redesign of my front garden to fix a problem I didn't create.

"Would you accept the second choice if it was now offered?"

In early May, I was led to believe by my neighbours' solicitor, that my neighbours had accepted exactly this choice. As previously mentioned, the matter was passed to a conveyancer who unequivocally confirmed that he was preparing the TP1 (a standard form used in a land transfer) and the boundary plan necessary for the transfer. Five months on, despite numerous requests, I still haven't been given a completion date or seen any evidence that conveyancing has, in fact, started. Naturally, I'm beginning to think that this apparent agreement was actually a gambit.

"Any idea what solutions your neighbour might be 'happy' with?"

Five months ago I'd have said they were willing to resolve things through a land purchase. Now I'm not so sure. A completed land purchase will mean they can stop wasting money needlessly on solicitors fees and, don't have to look out at me tramping up/down the shared path when I go for a walk, and, possibly, can start rebuilding a relationship with a person who a) pre-September 2023, was always happy to do favours for them, and b) doesn't believe in holding grudges.

"There also still isn't clarity why the path goes at the angle it did"

I suspect the path was angled because of a steep slope that existed close to the road when the houses were first built. There's quite a difference in ground level between the road and, in particular, my house. Planning applications indicate that much of the bank was removed during the construction of the layby in 1992, and my drive circa 2000.

Section62

pobjoy said:

"What would be illegal about a boundary agreement?"

https://www.gov.uk/your-property-boundaries/boundary-agreement-neighbour

In the UK it's illegal to trade or gift land using a boundary agreement. By signing a boundary agreement that declared that the boundary follows the western (hedge) edge of the resurfaced area, I would be breaking the law. My neighbours' solicitor must have been aware of this when they proposed this solution, but they went ahead anyway.

I suspect their solicitor would have been happy to proceed, and if you had been represented by a solicitor they would have been happy to concur, on the basis no land was actually being sold or gifted.

AIUI the restriction on gifting or selling via boundary agreement is to prevent gross breaches (and potentially evasion of SDLT) where a substantive transfer of land is taking place - for example a farmer selling tens of square metres of a field to a neighbouring residential property owner for a garden extension and then claiming it was only about recording the boundary correctly.

Because a boundary that might be subject to a boundary agreement is a "General Boundary" nobody is sure exactly where the boundary lies - so almost by definition, some land will probably be gifted (if not sold) by almost all boundary agreements.  This is something in which the de minimis principle would be applied... neither of the solicitors can possibly know absolutely that no land is being transferred as a result of a proposed boundary agreement, but the law is not concerned with an insignificant land transfer which might, or might not, be taking place.  If it were illegal in every case then very few boundary agreements would happen, and those that did would probably be unnecessary.

The existence of the RoW and the neighbour offering a cash sum might be complicating factors, but perhaps not if the payment (although 'linked') is just goodwill to cover your legal costs and compensation for your loss of the part of the RoW over what has always undisputedly been their land.

That is a question for a lawyer though, and I'm not one, so could be completely wrong in what I've said above.  But I suspect that if you'd been happy with the £4500 figure and left it to your own solicitor and the neighbour's one to worry about the legalites of the agreement then you'd have probably got an outcome you were willing to accept, and both you and the neighbour could have put this dispute behind you.

It would be interesting if @Land_Registry has any thoughts on this.

pobjoy

"I suspect their solicitor would have been happy to proceed, and if you had been represented by a solicitor they would have been happy to concur, on the basis no land was actually being sold or gifted.... Because a boundary that might be subject to a boundary agreement is a "General Boundary" nobody is sure exactly where the boundary lies - so almost by definition, some land will probably be gifted (if not sold) by almost all boundary agreements."

I sought advice from a local solicitor when the idea of a boundary agreement was first mooted and was told this:

"There is a rebuttable presumption that a boundary agreement does not involve the transfer of any land and that the agreed position coincides with the true position of the legal boundary.  Where the agreed position differs from what is shown in a title plan, the agreement can only have identified the current position of the legal boundary if the agreed position is within the scope of the general boundary rules. Where it is established there is a transfer of land involved, the boundary agreement will require a party to transfer any of their land falling on the other party’s side of the agreed boundary.  Where it is clear a transfer of land is involved you should formally transfer or convey the land.  Only then, on registration, will the transfer be effective in law."

At the time I interpreted this to mean that a boundary agreement would be unlawful/inappropriate in my situation. One of the most unusual features of my 'boundary dispute' is that the position of the legal boundary could/can be determined with incredible accuracy.

When I described the proposed boundary agreement as unlawful in an email with the neighbours' solicitor, he didn't try to convince me I was wrong. 

A secondary concern about going down the boundary agreement route is it might lay me open to compensation  claims. If I signed one couldn't my neighbours then say "Okay, you now (finally) agree with our (completely daft) boundary interpretation. We spent thousands of pounds convincing you the boundary was next to the hedge and we think, in the light of this volte face, we deserve some or all of that money back!"? 

GDB2222

"A secondary concern about going down the boundary agreement route is it might lay me open to compensation  claims. If I signed one couldn't my neighbours then say "Okay, you now (finally) agree with our (completely daft) boundary interpretation. We spent thousands of pounds convincing you the boundary was next to the hedge and we think, in the light of this volte face, we deserve some or all of that money back!"? 

I would mention your concern to the lawyers, but leave them to sort out the details. 

Section62

pobjoy said:

"I suspect their solicitor would have been happy to proceed, and if you had been represented by a solicitor they would have been happy to concur, on the basis no land was actually being sold or gifted.... Because a boundary that might be subject to a boundary agreement is a "General Boundary" nobody is sure exactly where the boundary lies - so almost by definition, some land will probably be gifted (if not sold) by almost all boundary agreements."

I sought advice from a local solicitor when the idea of a boundary agreement was first mooted and was told this:

"There is a rebuttable presumption that a boundary agreement does not involve the transfer of any land and that the agreed position coincides with the true position of the legal boundary.  Where the agreed position differs from what is shown in a title plan, the agreement can only have identified the current position of the legal boundary if the agreed position is within the scope of the general boundary rules. Where it is established there is a transfer of land involved, the boundary agreement will require a party to transfer any of their land falling on the other party’s side of the agreed boundary.  Where it is clear a transfer of land is involved you should formally transfer or convey the land.  Only then, on registration, will the transfer be effective in law."

At the time I interpreted this to mean that a boundary agreement would be unlawful/inappropriate in my situation. One of the most unusual features of my 'boundary dispute' is that the position of the legal boundary could/can be determined with incredible accuracy.

When I described the proposed boundary agreement as unlawful in an email with the neighbours' solicitor, he didn't try to convince me I was wrong.

This is the crux of the issue, and partly why we are now on the 11th page of this thread.  The belief the path accurately defines the legal boundary (and the width of the RoW) may not be as concrete as you think.

With a General Boundary all that is known absolutely is that the boundary is 'somewhere here'.  You and the neighbour can agree (informally) between you that the legal boundary runs along the centreline of the path.  Something in the deeds may say that the boundary is there, or it might be inferred from something else.  But there is scope for argument - was the path actually laid on the boundary, is the path the same width along its whole length, is the path there today the same one as existed when the deeds were prepared.  For example, if the shuttering the workers used to lay the path bowed in by 1/2" on your side halfway along the length then is the exact boundary still in the centre of the path at that point, or should it be offset from the centreline by 1/4"?

The accuracy being sought here simply doesn't exist on the ground.  Which is why a big dose of pragmatism is needed to resolve boundary disputes without resorting to legal action.

Ultimately someone (a boundary surveyor or judge) can make a determination where the boundary is - they do that using the evidence in front of them, and as it stood the concrete path offered fairly good evidence that the boundary line ought to be along the centreline.  But until that determination is made the boundary is only a general one, and there are many possible right answers to where the boundary should be.

You've (understandably) opted for one of those right answers and so the focus of this thread has been on (1) where the path centreline was and (2) where the limit of the RoW is on the neighbour's side.

But to a significant degree that has been at the expense of finding a pragmatic solution to the problem.  Nothing wrong with that per se, but without pragmatism being injected at some point, the path you and the neighbours will continue to go down will be an expensive and stressful one.

pobjoy said:

A secondary concern about going down the boundary agreement route is it might lay me open to compensation  claims. If I signed one couldn't my neighbours then say "Okay, you now (finally) agree with our (completely daft) boundary interpretation. We spent thousands of pounds convincing you the boundary was next to the hedge and we think, in the light of this volte face, we deserve some or all of that money back!"?

As GDB2222 says, leave that to your solicitor to worry about.  But in general terms the resolution of a boundary dispute should be on a 'full and final basis' with both parties accepting the past is the past and won't be revisited.

GDB2222

If you and your neighbour can jot down some heads of agreement, that will help immensely. This can be on a non-binding basis, so it is subject to any legal advice you both get. 

ThisIsWeird

Pobjoy does not have LegProt, and has already spent ~£1k on a solicitor telling the neighb 'they've done wrong'.
How much more should he spend, given that this neighb is a presumptuous 'ole?

GDB2222

ThisIsWeird said:

Pobjoy does not have LegProt, and has already spent ~£1k on a solicitor telling the neighb 'they've done wrong'.
How much more should he spend, given that this neighb is a presumptuous 'ole?

My view is that he should send nothing more. 

Section62

ThisIsWeird said:

....Could you advise probjoy what you think he should do here? Accept the new situation 'until there is an actual problem'?...

ThisIsWeird said:

Pobjoy does not have LegProt, and has already spent ~£1k on a solicitor telling the neighb 'they've done wrong'.
How much more should he spend, given that this neighb is a presumptuous 'ole?

Hence my solution on page 1 of the thread (the one you said "Nice" about).

Inform the neighbour through their solicitor that the OP intends to mark the boundary using stainless steel studs, giving the neighbour the option to participate in agreeing where they should be.

If that is accepted by the neighbour then spend something like £50 to £100 getting the studs installed.  Then wait and see if there is a problem with obstructive parking and if so use the LP to deal with the obstruction as a new issue.

If the neighbour doesn't accept the boundary studs proposal then review what to do next.

Keep it simple.  Most of the last 10 pages has been about making the situation more complicated and harder to resolve.

ThisIsWeird

GDB2222 said:

ThisIsWeird said:

Pobjoy does not have LegProt, and has already spent ~£1k on a solicitor telling the neighb 'they've done wrong'.
How much more should he spend, given that this neighb is a presumptuous 'ole?

My view is that he should send nothing more. 

What will that achieve? That is an honest question.