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Love thy Neighbour ... and mediate?
  • Oct 25, 2021
  • Latest Journal

by Emma Preece, Associate Solicitor at Charles Russell Speechlys LLP. A boundary mediation service has been introduced with a view to assisting in the resolution in one of the most contentious areas of law; boundary disputes.

Such disputes have been on the rise over the past 12 months with the national lockdowns forcing homeowners to make the most of every last inch of their gardens, and the stamp duty holiday resulting in many “up-sizing” their homes and gardens in order to accommodate flexible working arrangements. Some buyers may arrive at their new home to discover that the boundary hedge has been dug up and replaced with an unsightly fence, which may also be encroaching into their garden by a couple of inches. Such disputes are not unusual, but they are rarely straightforward to resolve, with the emotions of the parties often  running high and costs quickly escalating if the parties' positions become entrenched.

The Boundary Disputes Mediation service has been designed by RICS and the Property Litigation Association to assist in focusing the parties’ minds on the practicalities of their dispute, legal positions, and fundamentally, their ongoing relationship as neighbours. The service allows the parties to retain control over the negotiation process, with a neutral mediator assisting in reaching an outcome that is satisfactory to all parties. The mediator will charge a fixed fee up to a maximum of £4,200 per mediation (which is usually split between the parties) which is likely to be a significantly smaller sum than proceeding to fully contested litigation where the costs often exceed the value of the land in dispute, and can very quickly escalate. The process also presents a quicker and more flexible method of resolution than through the courts, particularly as it is possible for the parties to reach an agreement on issues which may not necessarily form part of a court claim, such as future maintenance of the boundary or access rights.

Parties are actively encouraged to mediate and the mediation service will allow for discussions alongside expert evidence to enable the parties to do as much as they can for themselves at the early stage of their disputes. An application for the service should be made through RICS, with either one or both parties applying (although both parties must agree to engage in the process).

It will be interesting to see how many boundary disputes are referred to the service, given that judges have made it very clear in a number of recent  decisions that the courtroom is really not the place to determine such issues!

“People at the heart of neighbour disputes can rapidly get themselves into a fight, but few know how to then get out of it. Mediation gives people an opportunity to exit the fight without the courts being involved, avoiding the stress, risk and huge expense that this may entail”