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Can a Boundary Agreement be temporary?

Tuesday, 20 June 2017

The relatively recent case of Harrison v Brading [2016] serves as a good reminder that when it comes to Boundary Disputes it is not always necessary to focus on “the principle of the thing”, to still achieve the desired outcome.


This case involved neighbouring properties, a farmhouse, purchased by the Defendants in 1999 and the adjoining property purchased by the Claimants in 2009. A conveyance of the Farmhouse dated 1989 had a plan attached to it, which provided the dimensions for the majority of the boundary of the land. A dispute subsequently arose in relation to the position of both the boundary between the gardens and the position of the eastern boundary.


In one of the disputed boundary positions, the boundary wall almost coincided with the measurements on the old plan. However, in relation to the other disputed boundary position, the fence was at a marked distance from the measured dimensions. It was the Defendants’ case that the new boundary features would override the dimensions, and to this extent a new fence was erected and bushes were planted in this area. The Claimants made the decision to temporarily tolerate this fencing, pending the outcome of the dispute. Importantly, the Claimants also made this position known to the Defendants as well.


There were three points before the court to consider and they were: (1) the boundaries of the land that had been conveyed by the 1989 conveyance; (2) whether there was a claim for adverse possession; and (3) whether the claimants' toleration of the erection of the fencing amounted to a boundary agreement between the parties.


In relation to (1), the position of the fence on the eastern boundary did not greatly diverge from the measurements of the conveyance, it was therefore decided that where the measurements almost coincided with the physical features, the boundary followed the line of the physical features. In relation to the fence line between the gardens, there was a significant disparity with the conveyance, therefore it was decided that this boundary followed that set by the measurements and not the fence constructed by the Defendant. Furthermore, in relation to (2) the Defendant was unable to prove the necessary requirements for adverse possession in relation to the disputed area to the south of the fence.


The most interesting part of this case relates to (3) and whether a boundary agreement had been created through the Claimant’s tolerance of the fencing. The Defendants sought to argue that by allowing the fence to be erected as it was, the parties had reached a quasi-boundary agreement. However, the judge determined that the parties had not concluded a boundary agreement, particularly on the basis that the Claimants had confirmed that the fence was to be a temporary measure. It was accordingly decided that a temporary arrangement between neighbours cannot become a boundary agreement dictating the line of a boundary.


More often than not in these sorts of cases, there is a relatively small section of land involved, which whilst it undoubtedly adds to the enjoyment of the property, rarely provides an integral utility, however, parties all too often become fixated on immediately protecting this area as a point of principle, rather than focusing on the bigger picture of resolving the dispute. To this end, we regularly hear that the police have been called due to interferences with fences or general un-neighbourly behaviour.


In such circumstances the parties have lost sight of the fact that they are:

  1. Adding further complications to an issue which has the potential to be resolved in a more expeditious way;
  2. Incurring more Solicitors’ fees (there will undoubtedly be extensive correspondence back and forth regarding this point of principle);
  3. Damaging all relations with the neighbour.

This case demonstrates that in the long term, if your legal position is correct, it is not worth arguing points of principle throughout the dispute, as long as you make your position clear that your tolerance of their behaviour does not constitute an agreement – it is simply a temporary measure pending the outcome of the dispute. The same result would have been achieved, had the Claimant’s fallen in to the common trap of trying to tear down the neighbouring fencing, however, nothing extra would have been gained by the Claimant.


At the end of the day, no matter which party is established to have had the “correct” opinion of the location of the boundary, you will still have to live next to one another, which is always going to be harder if there has been animosity and point-scoring throughout the dispute.


Please contact a member of the Property Dispute Resolution team if you require assistance regarding a dispute that has arisen in relation to the boundary of your property -


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