Boundary disputes often lead to contentious litigation, but farmers should be aware of the risks of going down that road. The financial cost of such litigation may exceed the value of the land in dispute and can lead to long running acrimonious neighbour disputes which it may be best to avoid. The area of the land in dispute might be quite small but because of its critical location or strategic importance to the owners concerned, they may be of the view that litigation is the only viable option. Boundary disputes arise in many different scenarios. Examples would be disputes in respect of shared access ways, rights to light, drainage rights, overhanging trees and squatter’s rights.
Before purchasing property or land, it is advisable that a competent engineer or surveyor is engaged to check boundaries in order that a landowner can clearly mark out the boundaries to his or her property on the ground in the event a dispute arises with a neighbouring landowner at a later stage. In the event a dispute does arise, it is advisable to initially try and resolve the dispute with your neighbour by consent out of court. Arbitration or mediation are alternative dispute resolution methods for a boundary dispute which should be given serious consideration as the costs of entering into such a process would be significantly less than court litigation.
The costs of court litigation can potentially be extensive and before going down that route, it is advisable to take advice from your solicitor as to what the costs are likely to be. Solicitors by law are now required to set out their own costs once instructed. However it is important to be aware, that you may be liable to pay the other parties’ costs if you case is ultimately unsuccessful. This will be at the discretion of the judge at the conclusion of the matter but the successful party are normally awarded their costs.
Resolving boundary disputes can be a two tier process. It is advisable a solicitor is instructed to examine the deeds and interpret the title. The solicitor will then instruct a surveyor or an engineer who will normally carry out an inspection of the disputed boundary and will provide expert evidence in relation to maps and boundaries. Both parties to the dispute are likely to engage in a similar process.
A solicitor’s letter of claim will be sent to the neighbour or their legal representative. In the event the dispute can still not be settled, litigation may be the only viable option to resolve the dispute and the parties may wish to proceed to court. In order to prepare for a court hearing a number of documents setting out the basis of the claim or defence to the claim will need to be prepared. A solicitor normally instructs a barrister to prepare such documents and the barrister will advise on the running and merits of the case.
Boundary disputes are normally either heard by the Circuit Court or the High Court depending on the rateable valuation of the land. It is worth noting that the costs of a High Court case are normally higher. When a plaintiff brings court proceedings in relation to a boundary dispute there are a number of remedies available to him/her. Damages are the most common remedy arising out of court litigation but in respect of a boundary dispute the parties may look for a declaratory court order establishing ownership of a particular property, or apply for an injunction prohibiting trespass or occupation of a particular property.
It may still be possible on the day of the hearing for the parties to reach an agreement which can be presented to judge for approval before evidence is heard. Otherwise, the court will assess the evidence presented to it and examine the title deeds to the property in dispute and look at the maps. It will also hear oral evidence from the parties to the dispute, and any relevant witnesses, including expert witnesses such as engineers, who would be required to give an expert opinion as to the ownership of disputed area. Based on the evidence, the Judge will then make a decision which will be binding on the parties.
In the event you are involved in a boundary dispute it is strongly advisable to try and resolve it amicably with the other party but if it cannot resolved, you should seek the advice of a solicitor in respect of your options such as litigating.
Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.
Disclaimer: While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.