If a fence is constructed on the wrong side of a boundary a claim may lie in trespass. However, if you are contemplating bringing such a claim there are a number of matters you should bear in mind.
Where does the boundary lie?
In order to succeed in a claim for trespass you will need to show that the fence has actually been constructed in the wrong place. This is rarely straight forward and you will probably need to seek the assistance of a surveyor who is experienced in determining the position of boundaries.
As a starting point you should check the plan attached to your title deeds as this will show where the boundaries to your property lie. The red line on a title plan shows the position of the boundaries. However, deed plans rarely identify the precise position of boundaries or contain measurements.
If you have a mortgage on your property your deeds will be held with your mortgage lender and they will normally be prepared to release them to a solicitor upon the solicitor providing an undertaking to return them once he or she has finished looking at them. Normally mortgage lenders charge an administrative fee for releasing title deeds.
If your property is registered with the Land Registry, as most properties are these days, you could obtain “office copies” from the Land Registry. The Land Registry may also hold a copy of your title deeds, although this is fairly uncommon – if they do this will be evident from the office copies. The Land Registry charge a fee for providing office copies and for providing copies of any other documents they hold copies of.
If your neighbour’s property is registered with the Land Registry you can also obtain a copy of the office copies relating to their property together with copies of any documents held by the Land Registry referred to in the office copies.
Mistakes in title plans are not uncommon and it is, therefore, possible that the title plan relating to your own property may overlap with that of your neighbour’s property. If you believe that there is a mistake on your title plan you should notify the Land Registry and ask them to rectify it.
Title plans, accompanying office copies, are based on Ordnance Survey maps and are normally drawn to a scale of 1:1250 for urban properties and 1:2500 for rural properties. They only show the general boundary, unless the Land Registry has determined it as an exact boundary pursuant to the Land Registration Act 2002, although such determinations are fairly rare.
You should also be aware that boundaries move from time to time and any changes to the position of a boundary are rarely recorded. Where a boundary has been moved it is possible that land may have been acquired by way of “adverse possession” (also known as “squatters rights”). However, since the Law of Property Act 2002 came into force it is much harder to acquire land by way of adverse possession.
The Court’s approach to boundary disputes
The normal remedies in a boundary dispute will be an injunction ordering the removal of the fence and/ or damages (compensation) and a declaration as to the true position of the boundary. However, an injunction is a discretionary remedy and if the trespass is only slight a Court may not be persuaded to grant an injunction.
Disadvantages of court proceedings
Court proceedings should always be seen as a last resort. Court proceedings can be lengthy, very expensive and can damage relations between neighbours. Given the difficulties in showing the precise position of boundaries Court proceedings will generally carry high risks for both parties. If you are unsuccessful in establishing a claim for trespass or the Court takes the view that the trespass is “de minimus” (only slight) you may well end up having to pay your neighbour’s legal costs as well as your own and these could be substantial.