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What is today's blog about?
In this week’s blog, we take a look at the RICS Guidance Note Boundaries: Procedures for Boundary Identification, Demarcation and Dispute Resolution England and Wales (4th Edition).
You can download a full copy here.
When did the new Guidance Note take effect?
1 May 2021.
Why was the new Guidance Note published?
It is essential to know the extent of property ownership and rights of use when advising on land and property, particularly because uncertainty affects physical use, saleability, mortgageability and value.
The Guidance Note provides clear assistance to surveyors on these issues, as well as guidance on dispute resolution, safeguarding clients’ interests and promoting the public interest.
How is the Guidance Note structured?
The Guidance Note starts by discussing professional conduct, including acting professionally and with integrity, checking for conflicts of interest, being competent to act and agreeing terms of engagement.
It then looks at the seven stages of a boundary dispute instruction:
Stage 1 – setting up the project
Stage 2 – research
Stage 3 – site visit, measured survey and photography
Stage 4 – the report
Stage 5 – alternative dispute resolution
Stage 6 – litigation
Stage 7 – recording the outcome in HM Land Registry
The appendices include helpful documents, such as a mediation agreement, boundary dispute checklist, model terms of business, glossary of terms and survey accuracy banding table.
Stage 1 – Setting up the Project
Stage 1 starts at the initial client contact through to confirmation of instructions. This will include identifying the key issues, client requirements, due diligence and fee basis.
The initial contact may be through a legal advisor on behalf of the client. In this case, the surveyor should ask for a clear letter of instruction to clarify the relationship structure.
The role of the surveyor needs to be identified and explained to the client at the outset, usually taking one of two forms (see Figure 1):
Boundary identification and demarcation – which can sometimes lead to the second role later on
Dispute resolution – where the surveyor acts as an expert witness or single joint expert and their report is used in the meditation or litigation process. This role should be undertaken in line with Part 35 of the Civil Procedure Rules, specifically noting the proviso that the surveyor’s duty is to the court, rather than to their instructing client
Stage 2 – Research
The Guidance Note outlines different types of evidence which can be used in the research phase:
Case bundle relating to the individual instruction
Title deeds, including conveyances, assignments, transfers and indentures. These are used to identify the root of title, which is the document with which the evidence of title commenced
Registered title and plan from HM Land Registry, identifying the plot of land rather than the legal boundaries of the land
Ordnance Survey maps
Historic maps
Stage 3 – Site Visit, Measured Survey and Photography
The next steps a surveyor will take are to inspect the site and surrounds, taking photographs and carrying out a measured land/boundary survey.
Physical features and boundary features should be noted, together with specific details of their shape, location, size, character, purpose, and condition, amongst other factors.
Surveyors should refer to RICS Guidance Notes Measured Surveys of Land, Buildings and Utilities 3rd Edition and Guidelines for the Use of GNSS in Land Surveying and Mapping 2nd Edition, at this stage.
Stage 4 – The Report
Surveyors will need to analyse their research and inspection findings before preparing their report.
The RICS suggest the following headings when reporting:
Executive summary
Instructions
Background and issues
Site inspection, methodology and findings of fact
Analysis
Conclusion
Appendices
Stage 5 – Alternative Dispute Resolution
In the event that a boundary dispute cannot be resolved by negotiation, then mediation, a form of alternative dispute resolution (ADR), can be used.
A mediator (a surveyor or a lawyer) can be appointed via the Boundary Disputes Mediation Service, set up by the RICS and the Property Litigation Association (PLA).
Mediation is a voluntary, non-binding and confidential form of ADR. The mediator helps the parties to reach a negotiated settlement, which can be recorded in a legally binding agreement (contract).
There are two types of mediation; facilitative or evaluative. A facilitative mediator does not have to have any technical knowledge and they do not provide the parties with recommendations, advice or opinions. In contrast, an evaluative mediator will involve a technically competent mediator who can help the parties to reach a mutually acceptable agreement.
Stage 6 – Litigation
If negotiation and ADR fail, then litigation is the final step in resolving the dispute. Boundary disputes in Court can take 2-3 days and will typically involve the two parties, legal Counsel and expert witnesses.
In Court, expert witnesses must answer the questions posed to them honestly and remain non-adversarial throughout proceedings. This is because the role of the expert witness is to help the Court to reach the right decision, rather than advocating a particular outcome or their client’s case.
Stage 7 – Recording the Outcome in HM Land Registry
The agreement of a boundary dispute via a boundary agreement or having a determined boundary should be recorded at HM Land Registry. This part of the process should be the responsibility of the client’s solicitor.
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N.b. Nothing in this article constitutes legal, professional or financial advice.