My ongoing boundary dispute ordeal/odyssey (advice sought)

GDB2222

Browntoa said:

Personally 

I'd let it go 

These disputes can turn into money eating pits

It's not right but there's a point where you have to look past it

I’d second this. The costs can be huge, and the land being fought over does not look worth it. 

As an example, suppose both sides spend £100,000 on legal fees to get judgment. The winner will get £70,000 of his fees paid by the loser, but will have to stump up the rest themselves. So, that’s £30,000 it will cost you even if you win the case. That’s always assuming the neighbours are able to pay, and don’t go bankrupt on you. 

Plus, there’s the chance that you will lose, and have to stump up £170,000. 

You may think that you have a good case, but some bombshell piece of evidence may emerge late in the game, after both sides have already spent £50k, say. 

ThisIsWeird

RHemmings said:

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%, ...?

Ha-ha, fair question!
And the answer is obviously, I don't know. But my suggestions are all about bringing the neighbour to the negotiating table, something they appear to have backtracked on.
The way I see this whole issue is,
(a) the neighbour is a presumptuous bottom, and clearly - by any impartial measure - did wrong. I hope you agree?
(b) IF the OP had had LegProt, this would almost certainly be considered an open-and-shut case by them. LP would most likely determine that there were a few issues breached by the neighb's action, and conclude a comfortably greater-than-50% chance of success should they act. I hope you agree with this too?

(c) the OP did not have LP for this issue, so were he minded to pursue, it would be at his cost and his risk. I'd hope that the adjudicator would come down firmly on his side, but the law is sometimes a donkey, apparently. So, the OP is understandably cautious, and seems to even be considering letting it be. 

(d) The neighb has seemingly gone quiet. That's a bit worrying, as they may be thinking, "If I do nothing, then nothing will change. After a while, this new arrangement will become the norm. Win!"
What do you think the OP should do?
I think - at some point when it may seem clear that nothing else is changing - he should use his new LP protection to cover him against the outcomes from his neighb's actions. And the most obvious is against breaches of trespass over his rights under his deeds. 
I may be wrong, but it seems like a good way to move things forward to me. In other words, make the neighbour address the outcomes of his actions, under a potential threat of action. I suspect the neighbour didn't think as far as the full consequences of what he was doing when he commissioned that resin drive. 
If he does nothing, then I'd be ready to challenge any obvious laxity from his side; look at the shape of his land - if he parks two cars side-by-side, it's very likely that the near-roadside vehicle will cross over what used to be the concrete path, and almost definitely over what is pobjoy's RoW, which appears to extend beyond that path - the area marked in blue on the deeds. 

I wouldn't want them to 'right their wrong' - remove resin and reinstate a concrete path - but to agree to a mutually-acceptable solution, which - in my mind - would be for the neighb to either buy the whole path-resined area (less any encroachment over the OP's perp boundary), or to even consider buying a fuller amount of land, with a new boundary where you'd expect - perp and straight from the house to the kerb. Commensurate £ums, of course. Both would also be of direct benefit to the OP, as far as I can see. The neighbour would have full ownership of a useful section of extra land with no RoW over it, and pobjoy would have enough money to install a separate new path - and also rid his deeds of RoW entitlements. Win-win.

pobjoy

"Criminal damage - not a chance.  Technically it might be, but the intent of breaking up the old path was to lay a replacement surface"

The neighbours' solicitor was very keen to stress to me that the path had simply been "resurfaced". I disagree. A resurfaced path is still identifiable as a path. In my case, the path - a feature that defined a legal boundary - has been entirely removed. Under the new resin surface, there is nothing of the original slabs. Perhaps 'theft' is more appropriate than 'criminal damage'!

For me the nub of the path situation is this. The original path had proven durability and it fulfilled three important functions:

1. It provided a firm/safe walking route between house and road.
2. It defined the legal boundary between the two front gardens.
3. It  showed clearly the extent of the RoWs.

What the path has been replaced with has unknown durability and only fulfils one of those three functions - number 1 - arguably the least important considering we both have alternative routes to our front doors.

It's akin to your neighbour stealing your lovely Land Rover and replacing it with a Lada, and then arguing "What's the difference? You can still use it to drive to work".

ThisIsWeird

pobjoy said:

"Criminal damage - not a chance.  Technically it might be, but the intent of breaking up the old path was to lay a replacement surface"

The neighbours' solicitor was very keen to stress to me that the path had simply been "resurfaced". I disagree. A resurfaced path is still identifiable as a path. In my case, the path - a feature that defined a legal boundary - has been entirely removed. Under the new resin surface, there is nothing of the original slabs. Perhaps 'theft' is more appropriate than 'criminal damage'!

All very dodgy, and deep resolve and pockets may be required.
I'd use tools that you have protection for, and make them explain, ideally address, the consequences of their actions. 
That may encourage them to the negotiating table. 
From what you've described, they almost went there before, but have since gone quiet. I think my suggestions are perfectly reasonable and rational Q's for you to ask of them, and make them go, "Hmm, a bigger can of worms than we thought...". 
I could, of course, be wrong.

pobjoy

"Personally I'd let it go"

As much as I'd like to forget all about this affair, doing nothing really isn't an option for me. If I leave things as they are (Neighbours refusing to accept the path-centreline boundary position, or to do anything to make the path visible again) then I'm simply passing the problem onto the house's next owners - assuming of course I'm able to sell a house with a disputed boundary.   

GDB2222

pobjoy said:

"Personally I'd let it go"

As much as I'd like to forget all about this affair, doing nothing really isn't an option for me. If I leave things as they are (Neighbours refusing to accept the path-centreline boundary position, or to do anything to make the path visible again) then I'm simply passing the problem onto the house's next owners - assuming of course I'm able to sell a house with a disputed boundary.   

The new surface is fine to walk on, and the neighbour will probably want to renew it if it ever gets too worn.   That’s not worth fighting over in my view.

The boundary probably does matter, but perhaps you can reach some compromise. There’s a few square metres of garden land involved. If you were being offered the opportunity to buy it, how much would you offer? £5k say? So, it’s not logical to spend more than that defending it. 

How seriously is the neighbour disputing the right of way? Do you need it, anyway, given that you have a different path? 

The dispute will make it harder to sell, but some buyers will look at this dispassionately and say that they don’t need the disputed land. So, they can settle the dispute just by letting the neighbours win. 

Based on the evidence you provided, you have been wronged, and I don’t blame you for being hopping mad. I don’t blame you for not wanting the neighbour to get away with a land grab. However, if you can bring yourself to let them get away with it, then there is no dispute, and you can sell the house with the driveway exactly as it is.

ThisIsWeird

GDB2222 said:

The new surface is fine to walk on, and the neighbour will probably want to renew it if it ever gets too worn.   That’s not worth fighting over in my view.
The boundary probably does matter, but perhaps you can reach some compromise. There’s a few square metres of garden land involved. If you were being offered the opportunity to buy it, how much would you offer? £5k say? So, it’s not logical to spend more than that defending it.

How seriously is the neighbour disputing the right of way? Do you need it, anyway, given that you have a different path?

The dispute will make it harder to sell, but some buyers will look at this dispassionately and say that they don’t need the disputed land. So, they can settle the dispute just by letting the neighbours win.

Based on the evidence you provided, you have been wronged, and I don’t blame you for being hopping mad. I don’t blame you for not wanting the neighbour to get away with a land grab. However, if you can bring yourself to let them get away with it, then there is no dispute, and you can sell the house with the driveway exactly as it is.

but perhaps you can reach some compromise That's exactly what pobjoy has been trying to do, including suggesting mediation. Snubbed.

how much would you offer? £5k say? That is pretty much - from what I understand - that pobjoy would accept for giving their undeserving neighb exclusive ownership of the resined area. Snubbed.

Do you need it, anyway, given that you have a different path? Pobjoy doesn't have an alternative path (Edit - apology, he may have - I see a narrow path in his garden), other than the grassy driveway on the other side. £5k should, however, allow him to install a proper separate pathway.

I don’t blame you for being hopping mad. I don’t blame you for not wanting the neighbour to get away with a land grab. Neither of these appear to be the main drivers. He doesn't want his land compromised, he doesn't want his RoW ditto, he doesn't want issues when he comes to sell. And I presume he doesn't want an arrogant, entitled neighbour to try anything like that in future.

The dispute will make it harder to sell. This already is a notifiable issue, as one 'likely to cause issues with a neighbour'. Unless you propose pobjoy fibs about this in his TA6? The solution is to resolve it, in a mutually agreeable way, not capitulate.

GDB2222

Particularly as the neighbours are not yielding about this,  the op should consider capitulating. 

If he agrees the new de facto boundary, there is no ongoing dispute, and he can simply tell a buyer that there was a dispute and explain how it was resolved. 

Putting myself in a buyer’s shoes, I would have just assumed the OP’s property ended where the hedge is, anyway. 

Baldytyke88

GDB2222 said:

The boundary probably does matter, but perhaps you can reach some compromise. There’s a few square metres of garden land involved. If you were being offered the opportunity to buy it, how much would you offer? £5k say? So, it’s not logical to spend more than that defending it. 

The OP has a hedge, beyond which they don't use, I would guess for some years. So at the moment, they have lost nothing.

Does the OP want to cut the hedge down and start using the garden?

pobjoy

"If he agrees the new de facto boundary, there is no ongoing dispute, and he can simply tell a buyer that there was a dispute and explain how it was resolved."

If I agree that the boundary was along the western edge of the old path (an interpretation entirely unsupported by the evidence) then my current neighbour or a future occupant of No.10 would be perfectly justified in insisting I remove my hedge because it blocks a RoW (there's a RoW strip on either side of the boundary). If the boundary is where my neighbours currently (as far as I'm aware) claim it is, then four different firms of solicitors have failed to notice that a house they are handling the purchase or sale of, comes complete with a half-blocked RoW.

The fact is  my neighbours' actions have rendered clauses in both of our deeds unintelligible, and made a legal boundary that previously anyone could find using a tape measure now only locatable by a qualified boundary surveyor. It would be irresponsible of me (and them) just to shrug, and say "Let's leave things as they are" when a £4500 land transaction, a pot of paint, or the relocation of a couple of dozen edging bricks, could feasibly fix the problem.