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Boundary Disputes

An article based upon a presentation by Mr David J Powell FRICS MAE
Of David J Powell Surveyors (Est. 1982) who is a Land Surveyor specialising in Boundary Disputes for over 20 years. He has also written a book about Boundary Disputes!

SUMMARY

A lively presentation which was informative and enjoyable as well as humorous.

BOUNDARY DISPUTES QUOTE

The presentation started with quote “the Bible tells us to love our neighbours and also to love our enemies as they are probably the same people!” Ironically David J Powell found this whilst relaxing on holiday away from boundary disputes!

NEIGHBOURS AT WAR!

David Powell commented that boundary disputes are about people, which we would tend to agree with and that Chartered Surveyors can add common sense to the situation. He also went on to talk about his database of people who are involved in boundary disputes. These having been carried out for many years now include many thousands of boundary dispute instructions.

Gender:

Starting with the gender of the persons involved, these tended to average 37 percent female and 63 percent male. Interestingly in the 1990's it was predominantly females and he feels that redundancies and early retirement have increased the percentage of male involvement in boundary disputes.

Age:

The average age is 58.3. We wondered how he tactfully ascertained this information!

What do they read?

Their typical newspaper is the Daily Mail and interestingly, the Readers Digest! We would add that having just had an article in Readers Digest, we do have a copy of this at home!

And their cars!

Car wise they typically used to drive a Rover 214 or a Mondeo but the Renault Cleo car is top of the boundary disputers list.

Their homes:

The type of property is typically a 1960's semi detached or a property with shared driveways (we have come across many of these) or large country houses that have been divided up by developers. This is the biggest growth area.

The type of person:

The type of person who gets involved with a boundary dispute is often:

• Those who have taken early retirement.
• Unfulfilled or under employed.
• Unemployed

Mr Powell also commented that it is often “home alone” or “home a lot” people or “me me” type couples! He gave an excellent example of two couples who went into “battle”, one couple of which were tennis mad and utilised tennis courts which were available with their house. However unfortunately for them they fell out with a neighbour and whilst they were away on holiday the neighbour established during the course of conveyancing that part of the tennis courts were in fact within their own property. They therefore erected a fence across the tennis courts (we kid you not!), which then stopped the tennis mad couple being able to play tennis. Interestingly Mr Powell returned many years later and noticed that the tennis courts were overgrown.

Where do their daughters live?

Another interesting fact of those who have boundary disputes is that they often have daughters in Canada. In fact 12 percent do and he did in fact wonder why!

A growing type of person is a mathematics teacher or science teacher!

Making up 2 percent of the boundary disputers and interestingly enough, he mentioned how they can scale to five decimal places in plans where you simply cannot scale to five decimal places! He also noted that people involved in boundary disputes are often “on the edge” and highly strung or what we would tern as a bit different. Mr Powell commented on whom appeared to be a “normal” couple having a disturbingly large amount of Cliff Richard photographs, something which he feels we need to be wary of! He recommends following his magic recipe. This is to ask them to make you a cup of tea! Even if you don't drink tea as this calms them down.

WARNING TO CHARTERED SURVEYORS CARRYING OUT BOUNDARY DISPUTES

If you are approached directly by a boundary disputer beware! As often they will not only take up a lot of your time, they will also not pay! Indeed Mr Powell commented that in litigation, the boundary disputer is also highly likely not to pay. He estimated that 80 percent will not in fact pay.

He has found a way of combating this and that is for you to ask them to write you a two thousand pound cheque to cover costs and advise them that hopefully you would be able to write them a cheque back once you have solved the dispute for less (and he advises s that he usually does!). Mr Powell much prefers an instruction by a solicitor as he gets paid!

BOUNDARY DISPUTES CAN WASTE A LOT OF YOUR TIME!

As we have also experienced, boundary disputers can be very detailed in their description of boundary dispute problems and write very detailed long letters requesting very long detailed answers. Beware of this trap as your time will disappear. Mr. Powell advises that he replies to such letters with an acknowledgement. We would add that we would do the same but we also add that we acknowledge the letter but do not necessarily agree with the contents. He comments that most people nowadays have insurance which would cover such boundary disputes and therefore he would mainly accept instructions via Solicitors only. He does appreciate that there are some cases when he is approached directly.

GOOD ADVICE TO A CLIENT IS THAT LITIGATION IS EXPENSIVE!

David J Powell advises that you should advise clients to be very careful before they start litigation, as it can be a very long and expensive process.

FORGET EVERYTHING ELSE BUT REMEMBER THIS!

There are approximately twenty two million households in Britain. Nineteen million of these are registered with the Land Registry as it has only been compulsory to register in relatively recent years. The Land Registry (or LR) is known as a Land Registry because it is a “register” and not a “mapping” system.

Deeds are very different to this (and are also what is known as the paper “Title”). You simply should not use Land Registry data but obtain the paper Title. The cost is small in comparison with the benefit and is therefore money well spent!

WHEN YOU GET TO COURT (ALTHOUGH YOU SHOULDN'T BE THERE IN THE FIRST PLACE!)

The first question asked is “does paper Title solve this problem?” Usually the answer is “no” or we would not be in court! David J Powell then shows us using a power point presentation, the different options on where a boundary could be on a boundary wall and asks where is the boundary? He explains how many would say in the centre of the wall but also equally it could be at the side of the wall or indeed at the edge of the foundation. This is the very skill that the Chartered Surveyor dealing with the boundary dispute has to establish where the boundary line is. Mr Powell advised that in his experience (and also in our experience) disputes are normally based around arguing about a small amount of distance of 100mm to 300mm in our experience (generally 4 inches to 12 inches).

MEASURING THE PROPERTY AND WHAT IS A LAND SURVEYOR

Mr. Powell confessed to his liking for “high tech” solutions and the use of his theodolite which costs many thousands of pounds. His advice is that a theodolite can be more accurate but is not necessarily. It could certainly stop you having to climb through the brambles and if you should ever wander onto the subject of antique theodolites with Mr Powell he would gladly keep you entertained with the history of theodolites and measuring for several hours if not days. You have been warned!

THE DEVIL IS IN THE DETAIL!

Mr Powell advises that you should make sure you get the detail down. It is not good enough to put a fence or hedge or boundary wall. You need to put what type of fence (i.e. barbed wire or smooth wire), which side is the wire on the post and is there anything else to distinguish this fence.

WHAT IS A LAND SURVEYOR?

David J Powell gave a very good analogy, taking us back to our school days. He advised that if you imagine you are driving slowly past a school playground (although he wouldn't recommend it as it could lead to other things!) and note the school children - in amongst them separated from the masses were some dreamy quiet school children. These would tend to be future land surveyors. Those playing etc; would tend to be the building surveyors or the general practice surveyors and those tripping people over tend to be future Solicitors!

COMPUTER MAPPING

The great beauty of drawing with CAD is that it allows scaling and often Mr Powell has been asked to form a court case from produced drawings of a different scale. This is where CAD is miles ahead of everything else.

AERIAL PHOTOS

Aerial photos usually go back to 1946 for ordinance survey, but there are other sources of aerial photos such as English Heritage or Local Authorities.

THE REPORT WHICH IS USED IN COURT (PLEASE REMEMBER THAT YOU SHOULDN'T BE IN COURT!)

The court report or court files (also known as “bundles”) are best presented from Mr Powell's experience in the following manner:

• As a standalone document, preferably in a ring binder which can be opened up.
• It needs a title page.
• It must have a contents page. Mr. Powell also recommended that each paragraph should be numbered and double spaced to allow comments to be added by the Solicitors as they felt fit, and also a numbering system allowed easy reference.
• A copy of the instructions. You should advise the Solicitors that you will put a copy of the instruction in the report and ensure that there are no adverse comments.
• C.V. A one page CV explaining what you do and why and how you have experience this dispute. Judges prefer people that “practise” rather than are full time expert witnesses. Without going into too much detail the judge certainly doesn't want to know what scout badges you have!
• The measurements. Explain how you obtained your measurements. David J Powell recommends plus or minus fifty millimetres are your accuracy scale and this stops silly questions. He also mentioned at this point that he could quite easily talk for hours on the theodolites that he has, including a historic one which sits on his mantelpiece.
• The analysis. He strongly recommends the standard mythology used every time. He recommends that you go through and sort out boundaries and looking at the information gathered. Then have a coffee break (he recommends Starbucks!) and then return and write up what you have found on your computer. Using the same mythology every time means that if he is asked to explain how he came to this conclusion he can.
• The conclusion. He recommends:
  • That it shouldn't be longer than the report!
  • You are looking at just the “news headlines” and ideally not more than a page.

SINGLE JOINT EXPERT!

For a while everyone was keen on a single joint expert! But in Mr Powell's opinion whilst having some advantages, did have the disadvantage that the single joint expert could become quite complacent if he knew the judge would go with his decision, whereas the use of two experts are much preferred by Solicitors alike as it can enable them to develop arguments which is what they are good at!

MEETING OF THE EXPERTS

David J Powell explained how this can have a great benefit in resolving the problem however a few important rules have to be taken into consideration:

It is important that it is non confrontational. He also advised that you should not discuss legal matters but simply state that it is a matter of law and that you are not a Solicitor.

• Consider it as solving a jigsaw puzzle as another expert may well have some valid points (if not many valid points). Certainly do not fall out over it but think it through.
• Two heads are better than one!
• Agree one plan to be used as a neutral document, having neither of the experts company names on it. It could be drawn up for example with one expert having comments in red and boundaries in red and the other having comments and boundaries in green, so that it helps the judge.
• Agree/disagree statement, which often solves everything and if it doesn't then……

IN THE COURT ROOM

Firstly we would like to advise that one of the people in this practise recently after carrying out eighty odd boundary dispute cases, had their first case go to court and they advise that it wasn't nearly as bad at they thought it would be after talking to David J Powell! He had some advice from his years of experience:

• Try and go to a County Court before you have to appear in one if you are unaware of the procedure or even if it's just a reminder!
• Secondly the only person that matters is the Judge!
• Prepare in advance. Make sure you have your favourite calculator with you.
• Do not get into an argument with one of the barristers. They are paid to argue, they will be better than you and they will always win! Mr Powell gave a lovely example of being given a lift back to the railway station by a barrister who “cut up” the proverbial “white van man” and drew level at the next set of traffic lights when the white van man wound down his window and started shouting, cursing and arguing with the barrister. The barrister wound down his window and commented that he only argued when he was being paid for it by someone else!
• He recommended that you always turn to the Judge and keep your feet positioned facing toward the Judge. Turn and listen to your barrister but your natural position should be facing the Judge.
• Talk slowly. For example “Your honour there are seven posts to the fence”. Face the Judge allowing him to acknowledge when he wishes to acknowledge. Never be witty and remember that no Judge would have gotten up in the morning thinking “great, a boundary dispute”. Keep to the facts and speak clearly.

A FEW TIPS OF HOW TO DEAL WITH YOUR CLIENT IN COURT

Be friendly but keep your distance as it looks far more professional. The judge is likely to feel that you are not in the pocket of your client.

WHEN YOU HAVE REACHED AN AGREEMENT KEEP IN CONTACT

Liaise with the Solicitor and ask for a copy of the draft Judgement. This will not only enable you to comment on the draft Judgement in case there are any technical errors, it will also enable you to have contact with the Solicitor to obtain more work.

It will also allow you to keep your finger on the pulse of what is happening and liaise for example with the fencing contractor. It is essential having gone through all of this time an effort that the fencing contractor then interprets the positioning of the fence correctly, sending his last minute negotiations.

When you are going to court take your costs with you because there will often be last minute negotiations and you may be asked for a sum of your costs to date.

WAS IT ALL WORTH IT?

The dispute could easily amount to forty thousand pounds per party for a court case of this type. Ask your client if he/she really wants to spend their money and time in this manner. Mr Powell gave an excellent example of how some people had lost their homes and are now renting. He also advised that Solicitors tend to underestimate costs and as surveyors you could be more realistic and he invites you to email any questions to davidjpowell@btinternet.com. He also has a web site www.boundaries.net.

QUESTION AND ANSWERS SESSION

There followed a short question and answers session. The first question was not on the Deeds or paper Title and this was “What do you look for”. The answer is that you look for features on the ground. Your really are a detective who works out the logical position of the boundary.

The main question related to Adverse Possession and what is Adverse Possession?

We are advised that it used to be when you had twelve years uninterrupted use of the land however, the Land Registry Act required that the land adjoins your own and that you have used it for a minimum of ten years. You then have up to two years to write to the owners to get the land from you. David couldn't see how this could lead to any court action and he felt it effectively had ended this area of dispute.

We would sincerely like to thank David J Powell for allowing us to put together some comments from his presentation, and if he is ever in your area we would thoroughly recommend attending one of his seminars.

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