Boundaries are not always set out with great precision in plans. Sometimes boundaries change. Consequently, the physical boundary may or may not represent the legal boundary. Arguing over them is costly especially if the fight goes to the courts. Such a case came before the Court of Appeal in Zarb v Parry.
In this case a strip of land had been occupied by the Parrys and their predecessors in title over a number of years. The Zarbs sought to recover the land and to restore the boundary to the position shown on the legal title. They tried to do so by force in a rather ugly incident in July 2007 which is described in the judgment. They later took proceedings for the recovery of the land.
This was a case falling to be decided under the Land Registration Act 2002. The Parrys’ had a defence if they could show that they had been in adverse possession of the land for at least 10 years. The Court of Appeal had to consider the questions of...
1) Whether the occupation had been with the consent of Mr Little (the predecessor the Zarbs) and therefore not ‘adverse’;
2) Whether the attempt to repossess the land in July 2007 interrupted the Parrys’ possession; and
3) Whether the Parrys met the condition under paragraph 5
4) Of Schedule 6 to the Act that –
a) the land to which the application relates is adjacent to land belonging to the applicant,
b) the exact line of the boundary between the two has not been determined under rules under section 60,
c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and...
d) the estate to which the application relates was registered more than one year prior to the date of the application.
The Court of Appeal found in favour of the Parrys. It is a pity that such expense was incurred in litigation. There had been an attempt to resolve the dispute by jointly instructing an expert under the RICS Dispute Resolution Service. The expert in this case was David Powell a specialist in such disputes with many years experience. His report established that the boundary was as contended for by the Parrys but was not accepted by the Zarbs and their advisers and so resorted to litigation.
Lady Justice Arden, who gave the leading judgement in the Court of Appeal, added a postscript including a cautionary note for purchasers of land and their advisers. “These proceedings have been costly and there is a cautionary story here for purchasers of land. No doubt those advising on transfers of land will consider what they need to do in future to protect their clients from costly disputes such as this one. Purchasers are not necessarily protected merely because the seller gives an assurance that the dispute with a neighbour has seemingly “gone away”. Boundary disputes have a habit of reappearing until finally resolved. The neighbour or the neighbour’s successor in title may, for whatever reason, resuscitate the dispute, unless something is done to prevent them from doing so. It may be that the purchaser will have to consider whether to ask the neighbour to confirm the boundaries and have the necessary deed of confirmation registered at the Land Registry in a manner capable of binding successors in title. That will involve extra costs and delay but the costs may be less than the undoubted cost of litigation of this kind. If the neighbour refuses to be bound by an agreement as to the boundary the purchaser will then know the risks that he is running by completing the purchase. Moreover, the purchaser on acquiring possession might himself be advised to bring matters to a head by himself applying for registration as owner of the land in question.
“If a dispute emerges, every effort should be made to resolve it without litigation…”