Home

RICS Expert Witness Reports

 Experience

Contact

Boundary Dispute Surveys by RICS Surveyor

Right of Way Surveys by RICS Surveyor

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 conveyance documents and other good evdidence then it is possible to attempt to resolve many boundary 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 as good as your conveyance documents. The current Land Registry Title Plans are not very accurate and only enable boundaries to be measured to the nearest metre or so. This is due to the small scale of the plans on which the boundaries of a property are drawn and the reliance on OS plans which plot features of interest to the OS, not legal boundaries. Land Registry Title Plans are generally of little use in Court unless a property is actualy conveyed by referecne to them. It is thus well worth saving copies of old conveyance documents with measurements or drawings, if you have them. When buying a property it is wise to agree the ownership of any unclear boundaries with your prospective neighbours.

CPR 35 Right of way and boundary dispute report for Court

The claimant wanted to argue she had a right of way with a vehicle from a public car park through a splay that was persistently blocked by the land owner first with a car that was subsequently burnt out and then with bollards. Unfortunately, the judge found she had been using the splay for just short of the twenty years required for a right of way by prescription, she did not have a right of way by conveyance and that she had not acquired the right of way under Section 62 of the LPA 1925. It was found under cross examination that access to the splay had been blocked by a wall which was demolished less than twenty years ago and that an alternative access had existed at the time which had subsequently become blocked and then re-opened.

 

CPR35 complaint boundary and right of way survey reports Derby

All our reports are prepared on the presumption that the matter will go to Court and come with the essential Statement of Truth and statement that the surveyor understands their duty to the Court as set out in CPR35, and the Practice Direction CPR35A.

Why is this important? If you do find yourself in Court and the report is unfavourable, and not prepared in anticipation of litigation, then you are likely to be obliged to disclose it, even though it is not favourable to you.

Furthermore, why engage a boundary surveyor who is not prepared to go to Court? We get so many instructions where the client has paid a boundary surveyor to draw a very nice plan and possibly a report, but when when asked to put their head on the block and justify their plan and report in Court they promptly turn into snowflakes and melt away. Usually, the plans they have prepared are useless as they insist on overlaying them on to the OS sheet, Land Registry Title plans, and anything but the original conveyance plan which if available is likely to be the basis of determining the boundary.

Why wouldn't you overlay a plan on to an OS sheet? As brilliant as their plans are the OS are 99% confident that any point on their 1:1250 plan will be within 1.0m of its position on the planet and that the distance between it any other object within 60m on the plan will be correct to within a metre. Beyond that the plans become increasingly inaccurate. On a 1:2500 plan 1.0m becomes 2.5m in both repect of absolute accuracy and the relationship of a point to other features.

Another issue is the OS plot features that it considers to be a boundary feature and has an hierarchy in which to choose them, so when you get a hedge stone wall and wire and post fence in close proximity the OS are likely to plot the wall or hedge even though it may not be the legal boundary.

Surveyors RICS CPR 35 Expert Court Report on a boundary dispute

Here our Derby clients were accused of having used a neighbours garage as a retaining wall for their patio. Our surveyors were able to show that the patio was separated from the garage by a gap extending to below the garage damp proof course level. The surveyors CPR35 compliant expert witness report can be seen if you follow the link.

Derby surveyors boundary dispute survey report in relation to a hedge that was won by adverse possession 

The client had little going for her in trying to stop the neighbour removing a hedge but fortunately she had lived at the property for seventy years and was able to offer evidence that her father had planted the hedge and that the family had maintained it since. 

Derby Right of Way Dispute Survey Report

Conveyance documents showed no right of way existed and the OS sheet that an alterntaive right of way existed.

 

DERBY RICS SURVEYORS INDEPENDENT EXPERT SURVEY REPORT FOR A BOUNDARY DISPUTE

This concerned a pair of semi detached houses that were not touching. They had both extended over their garage areas so as to be almost touching. One of them trying to alter the boundary so as to be able to access the gap between them. The available conveyance plan was unhelpful as it was very vague. Fortunately there was an almost complete set of ancient boundary posts in the rear garden and the conveyance plan was clear as to responsibility for the original wall separating the front driveways.

 

BOUNDARY SURVEY REPORT IN RESPECT OF THE BOUNDARY BETWEEN A HOUSE AND NOW SEPERATE DEVELOPMENT PLOT. 

This concerned a plot of land adjacent to a semi detached house. The land had once belonged to the house and had been sold as a development plot in about 2006. The purchaser of the land had started to construct a fence along the side of the path that lead to the house as per planning application and with full knowledge of the vendor who still owned the house at that time. The development was then abandoned, but a new owner of the house from 2009 moved the fence to a line that appeared to be randomly chosen. The movement of the fence limited the size of house that could be developed on the plot and the dispute went to trial. The owner of the development plot was somewhat over confident and failed to appoint a barrister until hours before the trial. The barrister was all at sea. The judge had originally suggested that the fence at the side of the path was correct but was persuaded to side with the new house owner. The judge seems to have been much persuaded that the conveyance plan of the development plot might exclude a demolished coal store and that the coal store was accessed from the house.

 

Expert Witness Boundary and Right of Way Survey Reports Derby

Steve Butler has been preparing boundary and right of way dispute reports for over twenty years and has been involved in hundred of cases including preparing numerous reports for use in Court, attending Court to give evidence in respect of boundary disputes, acting an as advocate before the Land Registartion Tribunal in respect of a right of way dispute and providing a binding boundary determination for two parties who wisely chose to avoid the expense of Court.

Whilst most boundaries and rights of way can be assesed with a tape measure Steve Butler has a Geomax Total Station which can record the position of numerous boundary features and most importantly how they all relate to each other in three dimensions if necessary. The data collected by the Total Station can be plotted using CAD to prepare a plan. It is sometimes possible to overlay the plan on to a copy of an original conveyance.

 

Independent Boundary Determination Reports

Arguing boundary caes in front of judges is an extermely expensive exercice. In the case of Harrison and Khan 2020 where Steve Butler appeard at the Birmingham Councty court for Mrs Khan the cost of the case were circa £80,000 but Mrs Khan recovered only a small proportion of these even though the boudary was decided in her favour. Steve Butler can draw up a binding boundary report with or without instruction from solciitors.

Example boundary determination report

 

Boundary and Right of Way Law

How can your surveyor tell the judge his opinion of the boundary or right of way if they do not know the law. Steve Butler is a member of the Chartered Institution of Legal Executives and thus has a good understanding of land law, the law of contract, the law of tort, the criminal law and statutory law such as the 1832 Presciption, 1925 Law of Property and 2003 Land Registration Acts which can all come into play in boundary and right of way disputes. Without knowing the law is it is difficult to write a watertight report.

Mr Justice Barker summarised much of the boundary law that had gone before in the case of Acco and Severn in 2011. If your boundary surveyor is not familiar with these principals then any report that they prepare is not likely to be much use in Court.

Comments of Mr Justice Barker:

 

1. ‘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: 

 

2. 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.” 

 

3. 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. 

 

4. 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.   

 

5. 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. 

 

6. Admissible extrinsic evidence may also include evidence of subsequent conduct where of probative value in showing what the original parties intended. 

 

7. 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. 

 

8. 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).   

 

1. 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. 

 

10. 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.   

 

11. 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.   

 

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.

 

Derby RICS Chartered Surveyors Expert Report on a right of way and parking dispute

Our RICS Derby Expert Witness Surveyors look at badly laid out Yellow Lines, clamping signs and whether a Derby access road is a private right of way or public highway

The dispute was about a parking ticket issued for 'Parking on the yellow lines in a restricted zone on Full Street' a public highway. The road is in fact an access to a service yard off Full Street. Steve Butler Chartered Surveyors argued for the recipient of the ticket that the car was on a private right of way and not the public highway. The City argued that the highway ended at a gully that runs across the road marked the end of the highway. Steve Butler Chartered Surveyors argued that if the gully was a juncture of public and private highway that there should be a T bar to mark the distinction and that gullies have no place in highway law. There was also a ‘no parking or you will be clamped sign’ on a car park wall just in front of where the car was parked. The City Council argued that the signs had not been put up by them despite their distinctive logo and that they owned the car park. A clamping sign on building on the opposite side of the road way was approximately mid-way between two T bars that stretch beyond where the car was parked. Our expert surveyors argued that the T bar at back of the pavement would be considered by a reasonable member of the public to be the end of the highway and that the section of road between the two T bars would be considered to be private as the clamping sign was at the centre. Full Street was considerably altered in the early 1970's to make way for the Assembly rooms redevelopment. We asked for a copy of the Full Street adoption order. Derby City Council will do anything but provided copy!

Boundary and Right of Way Surveyors Training

Steve Butler has competed the RICS Expert Witness training course, The Survey School introduction to Total Station measurement course and Auto Cad training.