Toeing the Line: The Five Classic Characteristics of Boundary Disputes
Friday 9th June 2023
A case involving an acrimonious boundary dispute between neighbours was widely reported in the press in April after it was heard at the Central London County Court.
Details of the case
The court ordered the defendants, Shabaz Ashraf and his wife Shakira to take down their extension, built in 2019, which was encroaching a couple of inches into their neighbours’ garden. The extension roof was overhanging almost 4 inches over the boundary. The neighbours complained, and the parties were unable to find a resolution to their dispute, which eventually came to trial in 2023.
What did we learn from this case?
The news reports suggest there were no remarkable points of law involved in this case. The defendants disputed that their extension was over the boundary and relied on their previous extension having been built on the same footprint.
What is clear from the reports, and why this story attracted attention in the press, is it ticks all the boxes for a classic acrimonious neighbour dispute. The fallout makes for good tabloid fodder. In this case it includes broken relationships, criticism by the judge, drastic remedies, and burdensome costs.
The five classic characteristics of boundary disputes
5 classic traits of boundary disputes emerge from this case, and can be characterised as follows:
Aggressive tactics can backfire
When the case is reported, the press usually paints the parties as the bad guys and the good guys. The media reports in this case, portrayed Mr Ashraf and his wife as the bad guys. There are of course always two sides to every story, and they no doubt had their reasons, or were acting on advice.
The press focuses on their unfavourable comments to their neighbours, including “if you think we have come over, then go to court”, and “we will only move the wall if the court tells us”. They took the substantial risk of running the matter to trial and letting the court decide.
Their tactic appears to have been “build first, worry later”. This strategy clearly backfired on them. Parties may think that once a structure is built, it is permanent, so the neighbour may back down. However, it is within the court’s powers to grant an injunction for removal of any items that are trespassing, including any structure that has been partly built on another’s land.
Further, when the matter does finally come before the court, these tactics are not going to find a defendant any favour with the judge. This judge called the defendants’ conduct “high-handed”.
There are of course always two sides to every story, and they no doubt had their reasons, or were acting on advice, but what emerges is that their strategy was a risky and unpopular one.
Remedies can be drastic
The neighbours’ claim was for trespass. The remedy for trespass is sometimes damages (financial redress) or can be an injunction (an order for a party to do/not do something), or both. The court doesn’t have to grant an injunction and will usually only do so where money won’t compensate the injured party.
It was open to the court to order the defendants to pay money to their neighbours equivalent to any loss of value caused by the encroachment, without granting an injunction. A financial remedy will sometimes be the result in cases where the encroachment is small. However, there were wider factors in this case.
There was evidence that the extension was causing mould and damp in the claimants’ own extension because it was so close. The judge therefore decided the claimants’ extension would be uninhabitable, that their loss was “not one that can be compensated in money” and granted an injunction ordering the defendants to tear down their extension. The defendants may not have bargained on the court going that far.
Evidence is important, including expert evidence
From the press reports, it appears the defendants disputed that they had built their extension outside of their boundary. They claimed it had been built on the same footprint as the old one. However, photographs of breeze block construction shown to the court proved otherwise. It isn’t clear why the defendants pursued their case in the face of this evidence. It is possible they had evidence to the contrary, but the court preferred the claimants’ evidence.
This highlights the importance of photographic evidence in this type of dispute, especially “before and after” type photos, showing the state of things before the offending party made changes, during the work, and afterwards. Photographs are more useful if comparisons can be made, for example if they include a fixed/permanent item that has not moved or changed and are taken from a similar position.
Often, parties in boundary disputes rely on expert evidence from a surveyor as to the position of the boundary. Land Registry title plans alone cannot be relied upon to pinpoint a boundary position to a matter of inches, as they only show general boundaries. The surveyors will consider all of the evidence in documents and on the site, and will provide the court with their opinion on the boundary position. It appears that in this case the expert evidence was crucial in obtaining the injunction for the claimants. Without the expert’s opinion that the proximity of the offending extension was causing damp and mould, the court may not have ordered it to be taken down.
Costs can escalate
The costs of taking boundary litigation to trial can be incredibly punitive for the losing party. These defendants were landed with their neighbours’ legal costs reported to be £200,000, their own legal costs (probably around the same level), in addition to the costs of taking down their £80,000 extension (and rebuilding it).
Although the claimants got the result they wanted, they are also likely to be out of pocket. It is rare for the court to order the losing party to pay every penny of the winners’ costs. There is also the risk that the losing party is unable to pay the claimants’ costs and they don’t recover what they have spent on getting the result they wanted.
Despite the reported “see you in court” type comments by the defendants, we expect neither party genuinely expected to end up at trial, and both parties were probably advised at each stage to try to reach a settlement. However, it was possible that nothing short of demolition was going to cut-it for the claimants because of the damp and mould issue. A compromise can sometimes be hard to identify, but the court expects the parties to explore it nonetheless.
While they are always difficult to estimate, the likely costs of going to trial should be considered from the outset, and the parties should fully consider the risks, the potential results, and the resources it is worth putting into the dispute.
There is no happy ending
If the above were not enough, neighbours in a residential boundary dispute have to endure living next door to each other in a challenging atmosphere, sometimes for many years. If the properties involved are the parties’ homes, they will have to continue to live there, probably in continuing acrimony, unless they opt to sell and move away. They will have to provide evidence to any future buyers that the boundary dispute is resolved.
The Judge commented this was a sad case, as these were neighbours who previously lived in harmony and were on good terms. The defendants have also had to endure being photographed and unfavourably reported upon by national newspapers.
What can we learn from this case?
All litigation is risky and difficult, but boundary disputes can be particularly challenging with emotions often running high. Advice from an expert in boundary disputes is highly recommended at an early stage, with a view to achieving a quick and mutually acceptable resolution.
