My ongoing boundary dispute ordeal/odyssey (advice sought)

silvercar

pobjoy said:

"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.

Solicitors never visit properties they are handling and rely on the buyers to confirm that what they think they are buying matches the deeds.

Section62

pobjoy said:

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)....

I don't understand this - it appears the hedge runs adjacent and parallel to the path rather than across it.  There might be a few twigs which overhang the western edge of the path, but those could be trimmed back, there wouldn't be a need to remove the whole hedge for the RoW to be used.  In fact I assume you'd want to keep the hedge in trim anyway so you don't get wet or scratched when you use the RoW yourself.

If you think the hedge blocks the RoW in a way which might require removal of the hedge then can you explain why this is, as we all might have been working to a wrong concept of where the legal boundary runs.

Or do you mean that an inconsistency between the deeds and the actuality would give the neighbour the impression the RoW was straddling the 'new' boundary position?

pobjoy said:

....
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.

I don't think the situation is as bad as you fear.  Lots of boundaries aren't well defined, or are defined relative to something else.  If you can both agree where the western edge of the path was (which from the photos doesn't seem much changed), and can agree how wide the path was (which can be done with reference to the kerb) then you could both agree to define your common boundary as a line offset by 'x' cm from the western edge of the paved area.

That is something you could do yourselves without a boundary surveyor, and by an exchange of letters it would act as the 'legal' definition of where the true boundary is.

Or if there is a fear the western edge of the paved area isn't permanent enough then the boundary could be defined on a plan with measurements taken from and along the facade of the houses.  Again, you could agree to do this yourselves without needing a boundary surveyor.

That comes back to my post earlier about TIW's suggestions... there are two ways this situation will get resolved, one is if you and the neighbour can start agreeing, the other is following an expensive and likely protracted legal battle.  If you "up the auntie" you move further from the former postion towards the latter one, and simply make it more expensive and difficult for yourself.

Essentially the 7 pages of this thread (so far) have been about making the situation more complicated - whereas it could really be as simple as you and the neighbour agreeing where the centreline of the path was and recording the position in a durable form.  One such form would be a few (possibly only 2) stainless steel studs to mark where the boundary is.... which is a low cost idea put forward way back on page 1 of this continuing odyssey -

https://forums.moneysavingexpert.com/discussion/comment/81046216/#Comment_81046216

If you and the neighbour could agree to do that then the dispute is settled and you can both go back to living your lives.

Also, don't worry about the deeds being "unintelligible".  It was once my day job to interpret rights of way using not much more than paper copies of Victorian OS maps.  If a future neighbour claimed the RoW was where your hedge is you simply show them a copy of the streetview images showing the historic path.  Job done.

ThisIsWeird

Doing nothing, letting it be, is certainly an option, but one that will come back and bite bottoms in future; it will not make this issue, or an almost-certain dispute, go away.

"Hey! Nice house! Um, is that your neighbour's 4x4 parked at an angle in the middle of your lawn? And - wait - is that your neighbour taking a dump in your flowerbed?!" "Yeah, but don't worry, I'm fine with it, it ain't a dispute or nuffink."

Pobjoy will have to declare this, and any sensible buyer will balk at what he has to say; "They did what?! And you allowed them?!". At the very least, it flags up that you, as a buyer, are considering moving in beside an arrogant and entitled personole - good luck with that.

Anyone considering buying pobjoy's house will almost certainly question the strange angle of their boundary in any event, it's history, its cause - all perfectly reasonable stuff that pobjoy can happily answer. But does pobjoy end the conversation there, holding back from describing the changes that have occurred? And lying about being 'ok' about it? Surely not.

Even if he did, the deeds would be looked at by the buyer's conveyancer, which will clearly show the RoWs, and lack of evidence on the ground. That'll be a fun conversation with their client; "And the owner said nothing about this...?"

Momanns

Any future buyer looking at the house and the pictures will pick up on it straight away, it just looks odd given where the houses meet. Obviously it is up to you how far you take this but the let it go approach is just delaying the issue which will inevitably arise if you come to sell.

ThisIsWeird

Section62 said:

One such form would be a few (possibly only 2) stainless steel studs to mark where the boundary is.... which is a low cost idea put forward way back on page 1 of this continuing odyssey -

And could the neighbour park up to these studs?

Or, to put it another way, is pobjoy only one foot wide?

Where do these studs go? Who will determine this? What about the edge of the RoW?

It's a great idea - and actually the essence of my suggestions; you oblige the neighbour to reinstate accurate boundary and RoW markings, for which they should provide agreeable evidence for its accuracy. This is not for pobjoy to do.

Or, realising that this could be quite tricky/costly, the neighbour does the sensible thing, which pobjoy is currently prepared to consider; they buy pj's strip. Remove all RoWs. Jobbie jobbed. Both happy. Win-win.

RHemmings

ThisIsWeird said:

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.
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 protect 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. 
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. 

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.

If you won't give a numerical estimate, then which of the following would you say most closely matches the situation? That neighbours will come to their senses and backtrack (or otherwise make good, such as buying the land, voluntarily marking the path back in, etc.) without serious action such as a court case forcing them to is:

Extremely Unlikely
Unlikely
Neither Likely nor Unlikely - it's a coin toss
Likely
Extremely Likely 

?

As for what I would have them do: I would suggest as the next step sending a letter to the solicitors as in a previous post of mine asking for missing communications, and evidence that those communications were sent. Having had a bit of a think, I would have already checked that the solicitors are registered with the Solicitors Regulation Authority (SRA), and assuming they are (and double-checking) say in the letter that I believe that the solicitors have sent communications containing falsehoods that the solicitors knew or ought to have known are false, including communications that you do not believe were sent and a claim that their client's property goes right up to the hedge. I would point out that this is inconsistent with term 1.4 of the Solicitors Regulation Authority's code of practice.

1.4 You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).

If the situation continues without the neighbour backing down with all reasonable action, then I would unilaterally mark the path back in. Whether that would be with paint, studs, rubber matting attached with a suitable adhesive, etc. But, only if a reasonable and normal attempts to make the neighbours' play ball fail. Which is my prediction: that they won't easily back down. I would choose 'Unlikely' from the list above. 

ThisIsWeird

RHemmings said:

If you won't give a numerical estimate, then which of the following would you say most closely matches the situation? That neighbours will come to their senses and backtrack (or otherwise make good, such as buying the land, voluntarily marking the path back in, etc.) without serious action such as a court case forcing them to is:
Extremely Unlikely
Unlikely
Neither Likely nor Unlikely - it's a coin toss
Likely
Extremely Likely 

If the situation continues without the neighbour backing down with all reasonable action, then I would unilaterally mark the path back in. Whether that would be with paint, studs, rubber matting attached with a suitable adhesive, etc. 

"I would unilaterally mark the path back in" Would you also mark in the extent of pobjoy's RoW over the neighbour's land, as indicated by the broad line in blue in the deeds? If so, how would you determine both positions?

You do understand what I am trying to suggest? Not a new status quo, and not even a return to the old - I suspect not even pobjoy really wants that. But to make the neighbour aware of the full consequences of what he did, so that he will come to the sensible solution; rather than tie himself up in knots trying to resolve it, he makes a reasonable offer to buy the strip from pobjoy. That, I think, should suit both parties ideally.

And the pressure is applied as I've outlined - to make him address his mistakes. Nothing contentious there that I can see - "you've erased the old markings - reinstate them, please. Oh, and make sure they are accurate". And pj can also enquire of the solicitor whether his client is aware that he has seemingly resined over Highways Agency land.

The likelihood of success will likely come down to the neighbour's intransigence. I suspect, quite strongly, that his solicitor will pressurise him to come to the table and negotiate.

I'd plum for 'likely'.

Section62

ThisIsWeird said:

Section62 said:

One such form would be a few (possibly only 2) stainless steel studs to mark where the boundary is.... which is a low cost idea put forward way back on page 1 of this continuing odyssey -

And could the neighbour park up to these studs?

No, they could only park up to the edge of the RoW.

If they do park on the RoW (i.e. up to the studs) then the OP would have an actionable case against the neighbour for obstructing the RoW.

But the sensible time to deal with the potential obstruction would be if it actually happens, and once evidence has been gathered, rather than dying in a ditch over this potential issue now (without the aid of Legal Protection) on the basis of nothing more than a fear it might happen.

Likewise, if the neighbour has their "4x4 parked at an angle in the middle of [the] lawn" or is "taking a dump in [the] flowerbed" the OP can give their LP a call and get help.  But they have zero chance of getting support if they ask for it on the basis that their neighbour might develop an inclination to open defecation at some unknown point in the future.

There is too much catastrophising going on in this thread.  It is getting in the way of the OP obtaining a resolution to the present issue.

'Doing nothing' now doesn't preclude the OP taking action in future.  I wouldn't suggest the 'do nothing' approach myself, but it wouldn't be the unmitigated disaster it is being portrayed as.

ThisIsWeird

Momanns said:

Any future buyer looking at the house and the pictures will pick up on it straight away, it just looks odd given where the houses meet. Obviously it is up to you how far you take this but the let it go approach is just delaying the issue which will inevitably arise if you come to sell.

Absolutely.

Potential buyers will certainly be curious about the jaunty angle, but that bit is 'ok', and has an explanation. The question is, what will pobjoy say about the RoW that exists over some of the neighbour's resin drive?

Q - what would you think of this situation as a potential buyer? "You are allowed to walk down this side here, up to around there - where that car's bumper is. Is he encroaching on the RoW? No idea. Am I happy with it? Er... "

RHemmings

ThisIsWeird said:

RHemmings said:

If you won't give a numerical estimate, then which of the following would you say most closely matches the situation? That neighbours will come to their senses and backtrack (or otherwise make good, such as buying the land, voluntarily marking the path back in, etc.) without serious action such as a court case forcing them to is:
Extremely Unlikely
Unlikely
Neither Likely nor Unlikely - it's a coin toss
Likely
Extremely Likely 

If the situation continues without the neighbour backing down with all reasonable action, then I would unilaterally mark the path back in. Whether that would be with paint, studs, rubber matting attached with a suitable adhesive, etc. 

"I would unilaterally mark the path back in" Would you also mark in the extent of pobjoy's RoW over the neighbour's land, as indicated by the broad line in blue in the deeds? If so, how would you determine both positions?

You do understand what I am trying to suggest? Not a new status quo, and not even a return to the old - I suspect not even pobjoy really wants that. But to make the neighbour aware of the full consequences of what he did, so that he will come to the sensible solution; rather than tie himself up in knots trying to resolve it, he makes a reasonable offer to buy the strip from pobjoy. That, I think, should suit both parties ideally.

And the pressure is applied as I've outlined - to make him address his mistakes. Nothing contentious there that I can see - "you've erased the old markings - reinstate them, please. Oh, and make sure they are accurate". And pj can also enquire of the solicitor whether his client is aware that he has seemingly resined over Highways Agency land.

The likelihood of success will likely come down to the neighbour's intransigence. I suspect, quite strongly, that his solicitor will pressurise him to come to the table and negotiate.

I'd plum for 'likely'.

I would have to think exactly what would be marked back in, and that would take some time. Of the top of my head I would mark the full path back in again at its full previous width. But, that's just a off the top of my head response, and it really requires more thought (and possibly advice). Note: that is only after other attempts (such as you suggest) have failed (as I believe they are likely to do). Not now. 

Thanks for choosing 'likely'. I'm less optimistic than you. But, @Pobjoy can continue being Mr/Ms Nice and Reasonable Person for a while and see if that works. Even if there is a chance that this could end up being an adverse possession claim (which I'm not saying I'm confident it would be), that's a decade away.