My ongoing boundary dispute ordeal/odyssey (advice sought)

ThisIsWeird

Section62 said:

stuff

To clarify, it seems clear that the neighbour is using a solicitor. And I would bet my bottom dollar that it isn't - cannot be - via LegProt due to the simple fact that the neighbour has obviously done wrong - the LP's first test (unless the neighb has fibbed to them). LP would not take this on, given a remotely accurate account by the neighbour.

So, the neighb is almost certainly accruing silly costs.

No, the OP cannot 'make' the neighbour do anything to their own land, but 'making them' isn't what I was suggesting. It was to make the new situation effectively untenable for the neighbour, since they removed the markings; "If you do not demarcate your land, I cannot possibly be held responsible if..."

Should the OP contact their neighb's solicitors to 'insist' on new markings to replicate those he obliterated, it would be on the basis of "I cannot otherwise guarantee non-trespass, for which I cannot be held responsible". The OP could then go to his local, stand a few rounds, get the clientele completely ratassed, and invite them back to his house for a party - via that non-existent pathway. Jobbie jobbed.

If the neighbour, via his solicitor, says, "Ok, I'll fit markers...", then the OP can insist on this being evidentially accurate, such as by the employment of a land surveyor. ££££s

Similarly, the OP can take steps to record any trespass by the neighbour, say by poorly-parked vehicles, and should be able to take action against them using their newly-installed LegProt. It is a simple case of, "My neighbour has obliterated all the definable boundary markings on the ground which included the extent of my RoW, and is now parking well over where these lines used to be, causing a substantial interference to me and my drunken friends. Can you sop them pleeeez."

This seems to me to be completely reasonable, and very doable. Nothing contentious there. It's the OP's right.

This is for when the OP needs to up the auntie. Easy, legit, fun. And teach the b' a lesson.

pobjoy

@MeteredOut

While your suggested solution - a line of dark bricks marking the eastern edge of the vanished path - has drawbacks for me (As you point out, if I accepted this compromise I would then have a legal responsibility to maintain a surface I didn't choose, want, or need. The existing concrete path had been in place for at least sixty years, was wear free, and required zero maintenance. What will the resin surface look like in 10... 20... years, I wonder. There are already weeds sprouting between the edging blocks) it's something I will consider proposing if the purchase doesn't happen.

Of course, the perfect time to have done this would have been before the resin was laid. If my neighbours had been sensible, they would have asked their contractors to shift the western edge of their brick surround about 90 centimetres eastward before commencing resin laying. Instead, they chose to stick their head in the sand, leave things as they were, and make restitution much harder and more expensive.

@ThisIsWeird

"Should the OP contact their neighb's solicitors to 'insist' on new markings to replicate those he obliterated, it would be on the basis of "I cannot otherwise guarantee non-trespass, for which I cannot be held responsible"."

Thanks. I'll include this request in my first post-deadline email to the solicitors.

@Section62

"since the RoW is not obstructed it is unclear what - if any - winnable case the OP might put forward."

This is something that I hope the boundary surveyor might help me understand. Have my neighbours trespassed by placing significant quantities of immovable resin, brick, etc on my property? The solicitor who drafted my letter of claim for trespass, seemed to think so. Could they be guilty of criminal damage or interfering with a boundary? Not sure. If the path was technically a 'party structure' then they've definitely breached the rules laid down in the Party Wall Act.

pobjoy

One of the more worrying aspects of dealing with my neighbours' solicitor, is their 'habit' of referring to communications that I haven't received and, strongly suspect, were never sent.

I've just realised that their first letter to me (dated March 4) includes the phrase "further to our letter of 28 February".(I received no letter prior to the March 4 one).

And on May 1, I received a message that contained the following "As stated in my previous email, the agreement negotiated between my clients and yourself  is to be put into effect by..." (Absolutely no agreement had been reached at this point, and, judging by what came next, I suspect this was probably part of a cynical but ultimately unsuccessful attempt to bounce me into the (unlawful) boundary agreement they hoped I'd sign).

In the second instance, I asked them to forward the 'missing' email, but got no response.

I don't want to complicate things while conveyancing is (possibly) underway, but a complaint to the Law Society once the dispute is over does seem justified.   

ThisIsWeird

pobjoy said:

@ThisIsWeird

"Should the OP contact their neighb's solicitors to 'insist' on new markings to replicate those he obliterated, it would be on the basis of "I cannot otherwise guarantee non-trespass, for which I cannot be held responsible"."

Thanks. I'll include this request in my first post-deadline email to the solicitors.

You may wish to also bring to their attention the corollary (sic?); that the lack of demarcation of their boundary will also likely cause issues to them, in that they won't be able to determine the limit of their parking without risking trespass over your RoW. You could add that you will consider taking action if you believe their parking is causing a 'substantial interference to your RoW'. 

And your new LP should support you on this if needed - a separate issue to the original. In fact - here's a thought; call up your LP, and briefly outline the scenario; "I share a footpath with my neighbour for which we both have a RoW. They have covered the path up as part of their resin driveway so the footpath section can no longer be seen, and have started to park there. If their cars are partially covering where the path used to be, is this a subst-inter with my RoW? And, if they refuse to correct it, is it actionable?" That's all you need - a verbal confirmation of their 'yes' and 'yes'. Armed with that you can then add to the above suggestion that, "I have sought advice from my Legal Protection team, name-them, and they confirm that any subs-inter over my RoW is actionable" That will have the added bonus of informing your neighb's solicitor that you have LegProt, which should make them pale. They may currently think that you are running up bills just like them. (Which, cough, on the original case, you are...)

These are my suggestions, of course - I am not a legal bod - so you need to be happy to bring these to their attention. But I cannot see any negative by doing so; it will make them aware that you are aware of other unanticipated consequences of their inconsiderate action. And, hopefully every time their solicitor gets in touch with their client, it'll (a) cost them money, and (b) make the solicitor less bullish about the case.

As to the solicitor's 'worrying habit' of referring to comms you've had no sight of, I think that's great! It only adds to their incompetent case, so I would send emails at no longer than one-week intervals simply requesting sight of these documents, as 'you believe you are being put at a disadvantage by their absence'. 

Up the ante. 

And at some point you may wish to add, "with seemingly no desire from your client to progress this issue in a manner that could be mutually acceptable to both parties, I fear the window for this opportunity is closing. Currently, I am willing to discuss reasonable proposals..."

RHemmings

pobjoy said:

One of the more worrying aspects of dealing with my neighbours' solicitor, is their 'habit' of referring to communications that I haven't received and, strongly suspect, were never sent.

I've just realised that their first letter to me (dated March 4) includes the phrase "further to our letter of 28 February".(I received no letter prior to the March 4 one).

And on May 1, I received a message that contained the following "As stated in my previous email, the agreement negotiated between my clients and yourself  is to be put into effect by..." (Absolutely no agreement had been reached at this point, and, judging by what came next, I suspect this was probably part of a cynical but ultimately unsuccessful attempt to bounce me into the (unlawful) boundary agreement they hoped I'd sign).

In the second instance, I asked them to forward the 'missing' email, but got no response.

I don't want to complicate things while conveyancing is (possibly) underway, but a complaint to the Law Society once the dispute is over does seem justified.   

Request that the solicitor sends you a copy of this letter from February 28th, stating clearly that you never received this letter. Also, ask them to provide proof of delivery of the letter. Mention the email that they claimed that they sent which you never received and mention that they did not send you the copy that you requested on <date>. Tell them that you expect a full reply to this letter within <a certain number of> working days, or you will start a complaint through their official complaints process. Do this in writing sent with proof of delivery. You may not get an answer, but this becomes evidence later on should you make a complaint to the Law Society. 

ThisIsWeird

pobjoy said:
This is something that I hope the boundary surveyor might help me understand. Have my neighbours trespassed by placing significant quantities of immovable resin, brick, etc on my property? The solicitor who drafted my letter of claim for trespass, seemed to think so. Could they be guilty of criminal damage or interfering with a boundary? Not sure. If the path was technically a 'party structure' then they've definitely breached the rules laid down in the Party Wall Act.

Technically, I'd say 'yes', they clearly have. But, not in a major way. Their argument is that they have effectively only resurfaced an existing path, part of which they believe they own in any case, and have rights over, so what they've done - whilst legally very suspect - isn't like they laid a new path across your lawn. So, it's almost certainly 'wrong', but a judge might wonder what all the fuss is about.

But, it's still wrong..! And they've likely 'tespassed-with-criminal-property-damage' over land which is solely yours - any even tiny strip beyond the concrete path. And they continued to do this after you warned them of the possible consequences.

Your neighbour has messed up.

Section62

pobjoy said:

ThisIsWeird

"Should the OP contact their neighb's solicitors to 'insist' on new markings to replicate those he obliterated, it would be on the basis of "I cannot otherwise guarantee non-trespass, for which I cannot be held responsible"."

Thanks. I'll include this request in my first post-deadline email to the solicitors.

Seriously, don't do that, it is a really bad idea.

Firstly, it comes over as a threat that you will trespass on the neighbours property unless they do as you demand - some might call that blackmail.  It would put you in a poor position if this goes to court.  Secondly, it would make you look silly.  You know roughly how wide the path was - in fact it is part of your case that you know where the boundary line should be reinstated - so to claim that you couldn't keep to the RoW unless the edge of it is marked in the way you are insisting on is just daft and makes you look unreasonable.  There are hundreds of thousands (perhaps millions) of rights of way which have no linear demarcation whatsoever, and yet most sensible people are able to keep to the right of way.  If you claim you wouldn't be able to then you position yourself in a way which won't help your case.

If, at a future point in time, the neighbour complains about you trespassing, then might be the time to point out the lack of demarcation due to their actions, but not before.

TBH I'd suggest you need to take a step back and consider exactly what you want to achieve here.  Do you want to achieve a resolution to this situation that both you and the neighbour can live with (even if you don't become friends), or do you just want a scrap?

TIW seems to love encouraging other people to have a scrap with their neighbours.  Consider the last words of his previous post - "Easy, legit, fun. And teach the b' a lesson."  That has zero to do with finding a resolution and everything to do with making another human being's life a misery.  It isn't constructive and could easily be construed (by their solicitor) as an attempt to bully your neighbour (bearing in mind they have already claimed harassment).

If you want to win in a 'legal' situation you constantly need to be the better person, and avoid following advice which brings you down to the same level as the other party if they are doing underhand things.

TIW has also put forward a strategy which amounts to racking up the neighbour's legal costs, based on an assumption they are paying their own costs.  Discussions between them and their solicitor are protected by legal privilege so you - let alone TIW - cannot know what they have told the solicitor about the situation.  If they are using legal protection they may be claiming something like harassment, such as you making unreasonable demands they change their property.  We don't know, and therefore a strategy which amounts to hoping to make them spend more on legal costs so they give up (or just to punish them) is fundamentally flawed.

Many cases of this nature end when one party or the other gets to the point they have no money left, or reach a realisation that the proportion of their assets they have burned through is more than they should have done.  The winner is often the one who was able to outspend the other.  If you do want a scrap with the neighbour (rather than reaching a resolution of this issue) then that would be your choice to make, but just make sure you are willing to see it through to the end regardless of cost, and that you know that you can outspend the neighbour, rather than guessing you can based on assumptions made by a friendly forum contributor.

pobjoy said:

Section62

"since the RoW is not obstructed it is unclear what - if any - winnable case the OP might put forward."

This is something that I hope the boundary surveyor might help me understand. Have my neighbours trespassed by placing significant quantities of immovable resin, brick, etc on my property? The solicitor who drafted my letter of claim for trespass, seemed to think so. Could they be guilty of criminal damage or interfering with a boundary? Not sure. If the path was technically a 'party structure' then they've definitely breached the rules laid down in the Party Wall Act.

Usually a boundary surveyor will just say where they think the boundary should be.  They might comment on the other points if you ask them, but will probably just refer you back to your solicitor.

Bear in mind that 'winnable' means not just being in the right, but also that it matters.  Courts tend not to like arguments being had for the sake of argument - there needs to be a practical issue at stake.

So, trespass, probably.  But the placement of "immovable resin/brick etc" wasn't done to obstruct the RoW, rather it was to provide a replacement surface on the shared path.  Undoubtably the neighbour was wrong to do so on your half of the path without your agreement, but it doesn't automatically follow that they should now be made to dig it up and replace it with something else.  This is not a case of them building their path on your land, but rather them executing what appears to be a shared responsibility (have you clarified what the maintenance responsibilities are?) without going through the nicety of getting your agreement first.  I'd say that was likely to be an unwinnable position, because insisting they dig up and remove their resin/brick and restore it with a material of your choice has very little practical effect - in both cases there will be a reasonably flat surface that either party can walk on to gain access to their respective properties. Personally I'd also have concerns about durability - but in court you would be arguing about something which might happen, rather than something that will happen.  If the new resin outlasts the old concrete path then you've gained rather than lost.

Criminal damage - not a chance.  Technically it might be, but the intent of breaking up the old path was to lay a replacement surface, not purely to cause damage to your property.  You would need to get the police involved (and that isn't a recommendation you do) and I don't think it is likely they will spend any more time investigating this than it takes to log the call.  There is zero chance of a successful prosecution, in my view.

I don't think the Party Wall Act will be of much help, particularly as the neighbour didn't serve a party wall notice.  The PWA is primarily of use before work starts (and during), but if there is no notice then the Act is very weak if attempts are made to apply its provisions retrospectively.  You would need to get advice from a solicitor with PWA claims experience.

ThisIsWeird

With respect, S62, you seriously over-egg and misconstrue the intention of my suggestions.
I'm not trying to make the OP be provocative, or have a 'scrap' - not at all.
My intention is to make the neighbour aware of the full consequences of their actions, including issues that I'm sure never crossed their mind when they did this. And why? To prevent this becoming a fait-accompli, the new 'Quo, which I think it is at risk of becoming.
That's it.
Because, the OP has few other choices. As you have pointed out, for him to try and take action on the issue of 'trespass', or property damage, or removing a boundary feature, or anything like that would be fraught, for the simple reason that the OP does not have LP for these issues. So, it would be swallow-hard time, and get ready to dig deep in his pocket and see it through. Not a nice option.
All my suggestions are designed to turn the tables, at little or no cost to the OP. Make the neighbour realise there are consequences that they'd never anticipated, and placing the onus square on them to resolve it - whilst leaving an opening for them to properly discuss a satisfactory solution (and I've also pointed out what I think these could be).
And, yes, this should also teach the b' a lesson on how to behave in future, but that is not the purpose of my suggestions, but a most probable additional outcome.
As I also pointed out, the OP needs to be happy about doing this, but they should, this time, at least have LP on their side to guide them.
Finally, I have acknowledged that the OP has behaved impeccably during this process, and that should serve him well. Nothing that I have suggested should change this - it is all perfectly legitimate, and right. Scrap ma botty.
Respectfully.

ThisIsWeird

The OP can phrase the issue of the missing boundary demarcation in any suitable way, even as a Q; "Now that your client has removed all the original boundary features and markings, could you ask him how I can determine the limit of my RoW, ta muchly? And could your client confirm that they will not trespass over this RoW themselves, including by parking their vehicles in a manner which could risk causing an impediment? Could you tell me how your client intends to achieve this? What evidence will he be able to provide to assure me that any new demarcation is accurate?"
Ie, pass the buck. Make them right their wrong.

RHemmings

ThisIsWeird said:

The OP can phrase the issue of the missing boundary demarcation in any suitable way, even as a Q; "Now that your client has removed all the original boundary features and markings, could you ask him how I can determine the limit of my RoW, ta muchly? And could your client confirm that they will not trespass over this RoW themselves, including by parking their vehicles which could risk causing an impediment? Could you tell me how your client will achieve this? What evidence will he be able to provide to assure me that any new demarcation is accurate?"
Ie, pass the buck. Make them right their wrong.

If things are solved this way, then that would be absolutely great. 

Can I ask: what chance do you think there is that approaching them in that way will solve the problem? That they will then right their wrong. E.g. 25%, 53%, 71%, 89%, ...?