Boundary
Disputes

This mediation was a disagreement about a party wall between two siblings who were also neighbours. Communication broke down as a result of broader family problems and concerns.

Consequently, the building of a house extension resulted in a court claim and encroachment on the boundary of the neighbour’s property. After a whole day of a variety of emotions. a compromise was reached.

This dispute related to the position of a section of the side fence of 37 X Road, which formed the back fence of 18 Y Road. The history of the properties involved, 37 X Road was built in 1928/29. 18 Y Road was built in the mid 1930’s in the garden of 35 X Road.

Occupiers of the properties involved in the dispute. 37 X Road, the residents had been there since 1961. 18 Y Road owners had been there since 2014. The history of the fence marking the boundary line between 37 X Road and 18 Y Road was as follows.

A replacement fence between the two properties was built around 1970. This followed the same line as the fence that was being replaced, so the owners of 37 were confident that the line was unchanged from that which existed when 18 Y Road was built.

At some time after this, (date unknown but at least 30 years ago) the fences that separated the gardens of 37 X Road and 18 Y Road from 16 Y Road were replaced by the occupier of 16 Y Road with one continuous fence. Therefore, the posts of this continuous fence had no relation to the position of the end of the disputed fence at the junction of the gardens of 16 Y Road, 18 Y Road and 37 X Road. In fact, the last post of the fence between 18 Y Road and 37 X Road abutted a panel of the fence separating both gardens from 16 Y Road. The replacement fence installed maintained this position.

In 2011/12 37’s owners replaced the panel of the 1970’s fence, furthest from the house at 37 X Road, prior to erecting a shed in the garden. This was with the agreement of, the then owner of 18 Y Road.

In the spring of 2014, 37 replaced more of the fence, erecting another two panels, ensuring that the existing fence line was followed. This was done with the knowledge and agreement of 18 Y Road. Who were on site at various times and raised no concerns about the positioning of the fence.

The fence was not fully replaced due to excess earth on the 18 Y’s Road side, so a portion of the fence from the 1970s still exists. The dispute arose because of a Block Plan from the 1930’s showing the site on which 18 Y Road was to be built.

The new owners of 18 first raised this issue in August 2020, six years after they bought the property. Using the dimensions shown on the Block Plan, they claimed that the far end of the fence between the two properties was in the wrong place. This later developed into them claiming that 37 had moved the fence at some point. They were not clear as to when 37 were supposed to have done this; both 2014 and 2016 have been quoted at various times.

Since August 2020, 18 committed criminal damage to the fence and trespassed into 37’s garden. In April 2021, 37 discovered that 18 had sawn through the end fence post and pushed the fence panel into their garden. Equally 18 attempted to assault 37 with a heavy metal pole.

37’s solicitors, both orally and in writing, confirmed that the fence in question had followed the same line for over fifty years. They provided photographs showing that the new fence was constructed on the same line as the old fence i.e. on the correct boundary line, and that the new section of the fence was in place before 18 Y Road was sold to them in 2014.

In April 2022, 18 instructed a surveyor to produce a report on the issue. They then refused to release this report to 37, but they became aware that the surveyor’s recommendation was that the fence should be returned to the 2014 position.

18 then became very reluctant to give 37 a copy of the Block Plan and they only received a copy in November 2023.

18 then refused to accept the evidence of the photographs and the recommendation of their surveyor. They continued in their claims that 37 built the fence in the wrong place and / or they had moved the fence after it was built.

Three years passed, solicitors on both sides argued their respective client’s positions, £20,000 was wasted on legal fees.

Our mediator resolved the dispute within two and a half hours via the Zoom video platform. Proving online mediation is just as effective as a physical mediation. 

This mediation concerned a boundary, neighbour dispute. Their were a number of issues between the neighbours. The major issues pertained to the parking of vehicles, access, and the position / removal of a wall at the front of the neighbours properties. The mediation took place on site at the clients properties, it took four hours and settled. 

The claimant’s late aunt left her a property and land adjacent to a river, in her will. The defendant’s had been accessing the land for many years, as they had historical fishing rights and rights of access over this river. The claimant alleged the defendants were trespassing, causing noise and damage.

The defendants advised, all they were doing, is what they always had done, namely fishing, and enjoying the same. No damage, or indeed noise was being made by them.  The mediation took place in person, took four hours, and settled.

This mediation concerned a dispute that had arisen between neighbouring properties on a private Road. The Proposed Claimants were a Working Men’s Club (“the Claimants”) who owned and occupied the premises since 1971.  The Proposed Defendants owned the neighboring property.

The dispute arose primarily following works undertaken by the Defendants in or around the end of October / November 2020.  At that time, a wall and gates were constructed across the entire width of the private road with part being conveyed within the respective properties when they were first sold in 1971. Each of the properties were also granted a full right of way with or without vehicles over such parts of the private road as did not fall within their demise. 

Accordingly, the Claimants said that they had a right of way at all times and for any purpose over the full extent of the private road including all that part of the private road that falls within the registered title of the Defendants.

The Claimants came to the mediation against a back drop of animosity between the Defendants and some club members.  There were various allegations of anti-social behaviour by the club members.  Unusually, for a claim that had not been issued, there were reasonably detailed draft Particulars of Claim and a draft Defence.  Accordingly, whilst those documents remained in draft, it is plain to see how each party primarily put its case. 

The Claimant’s case was a straight forward one.  They enjoyed a right of way over the private road that fell within the Defendants’ registered title and that right of way has been removed.  The erection of the wall and gates prevented the Claimants from utilising any part of the private road that fell within the Defendants’ title.  It was not a question of interfering with the right of way (and the extent to which that interference could be said to be substantial in accordance with the test laid down in B&Q –v- Liverpool Lancashire Properties) but rather the Claimants were now afforded no access whatsoever either on foot or with vehicles over that part of Low Fold.  It is difficult to see how removing any form of access whatsoever is not a substantial interference.

Accordingly, the Claimant did not believe it was necessary to focus on the question of substantial interference (which there must be) but whether or not the other proposed defences had merit.  

The Defendants suggested that the Claimants should be estopped from asserting their primary right for an injunction requiring the removal of the wall and gates on the basis that they did not sufficiently complain or even acquiesced to the construction of the wall.  However, such a position does not bear scrutiny of the evidence.  The Defendants rely on alleged conversations (apparently taking place in August and September 2020) with the bar manager of the club and with a Mr X who was on the committee. 

The bar manager was adamant that he never spoke to the Defendants about the proposed works and Mr X did not give any encouragement for the wall to be built. Whatever was actually discussed, a conversation (on the road) with an individual member of the club cannot be sufficient to draw the proposed works to the attention of the Claimant.

The Defendants did not write to the club regarding the works and they undertook the main construction work at a time they knew the club was closed due to the Covid lockdown.

Further, two members of the club hand delivered letters to the Proposed Defendants objecting to the construction of the wall.  The actual construction of the wall had not started by that date. In those circumstances, the Claimant found it difficult to accept that an estoppel defence would possibly succeed.

The Defendant also asserted a defence of abandonment of a right of way.  It is alleged that the character of the Defendants’ property has altered since 2002.  No particulars are given of how it was altered and the Claimant does not have any direct knowledge of what alterations were alleged.  It is not clear if the case on abandonment related to a part of the private road made inaccessible by the alterations in 2002 or it related to the entire area of the private road within the Defendants’ title. Nevertheless, any suggestion that the entire right of way had been abandoned was unsustainable as a matter of fact and law.

It was suggested in the draft pleadings that the area of the private road that falls within the title of the Defendants had not been used by the club members. That particular assertion would be clearly demonstrated to be inaccurate by any number of witnesses from the club members who were prepared to testify in this matter as to that use. 

From the Defendants’ perspective, there were some allegations made of anti-social behaviour.  The particulars of that alleged anti-social behaviour were somewhat limited.   There are two specific references to alleged anti-social behavior in 2019 and 2020.  It is also alleged that there was trespass.  However, no particulars were provided.  It appears that the allegations of anti-social behavior were put forward as a justification for the construction of the wall rather than a separate claim.  There was no Counterclaim pleaded. 

The Claimant regretted any difficulties caused to the Defendants and the Committee would always do its utmost to ensure that members and visitors to the club behaved in an appropriate way. However, incidents of poor behavior by club members did not give the Defendants the right to simply remove the right of way that has been enjoyed by the club for 50 years.

The Claimant acknowledged that there was now a degree of animosity between the parties and that was a regrettable position.  Whilst the Claimant believes it was in a very strong position legally in respect of the actions of the Defendants, it would prefer to see the matter resolved without referring the case through the courts.  Clearly, this matter being litigated to a Trial would be extremely expensive and time consuming.  The Claimant would prefer to see the matter resolved at mediation but any solution must reflect the strength of its position. 

As always with litigation, costs were an important consideration.  At present, the Claimants had expended approximately £16,000 plus VAT including the cost of the mediation.  It was anticipated that the loser in this litigation would face a legal bill in excess of £100,000.

The Claimants benefit from having the support of a legal expense insurer and as such had little to lose in pursuing this litigation. However, it would prefer not to have to do so and came to the mediation in the spirit of compromise and willing to listen to what the Defendants had to say. 

The Claimant recognised that the Defendants would be reluctant to remove the wall and gates having apparently spent over £20,000 on their construction. If they were removed, the property would have lost the very significant increase in value that the wall and gates had provided. However, that financial windfall had come at the expense of the Claimant and the loss of its right of way. The Claimant was open to considering and discussing all proposals to resolve the dispute that did not necessarily involve the entire removal of the wall and gates.

The mediation took place in person, lasted seven hours and a settlement was achieved.

This disagreement centered on the claim made by the Claimant (C) that the Defendant (D) had illegally obstructed an explicit or prescriptive easement, namely a right of way (the “Right of Way”) across property jointly owned by both parties.

By the D building a stone wall and gate over that Right of Way and spanning the D’s property’s boundaries.

Before the D built the wall and gate across its residential property, the C, acting through some of its members, launched an anti-social behavior campaign that interfered with the D’s pleasure and use of their house. It was true that the C had persisted in its campaign of harassment and antisocial behavior.

Two Club members engaged in abusive and menacing behavior in a previous incident. Notably, Club members entered D’s residence without authorization and snapped pictures of D’s wife at home. A face-to-face mediation that lasted almost the entire day finally resulted in a resolution that satisfied all parties.