Costly Neighbour Disputes

When a dispute over a hedge, boundary or right of way costs more than the land in dispute

It can begin with a hedge.

Or a few inches of garden, the position of a fence, a tree, a gate which somebody insists must remain open, or a driveway which one neighbour believes they are entitled to use and the other believes belongs exclusively to them.

Before long, surveyors have been instructed, solicitors are corresponding, old conveyances and photographs are being examined and each side has become convinced not merely that they are right, but that the conduct of their neighbour is unreasonable.

Then the legal costs begin to exceed the value of the land in dispute.

Neighbour and boundary disputes provide some of the clearest examples of litigation in which the economic cost of obtaining a judicial answer can become wholly disproportionate to what the parties were originally arguing about. It is a pattern our property and land disputes mediators see regularly.

When a laurel hedge ends up in the Court of Appeal

In Seeckts v Derwent & Anor [2004] EWCA Civ 393, the immediate cause of the litigation was the destruction of a length of laurel hedge separating two properties.

The dispute concerned the ownership of the hedge and the proper interpretation of a conveyance dating from 1968.

The case ultimately reached the Court of Appeal.

At first instance the successful claimant had been awarded damages of just £1,500.

The Court of Appeal described it as an “unhappy boundary dispute” which had gone back many years. By the time of the appeal, the laurel hedge had substantially grown back.

The litigation, of course, could not.

Lord Justice Carnwath concluded the judgment by expressing the hope that normal relations between the neighbours could be restored.

That illustrates one of the peculiar features of neighbour litigation. The court can determine a legal boundary. It can declare who owns a hedge. It can grant an injunction and award damages and costs.

What it cannot easily do is repair the relationship between two people who may continue living a few metres apart for years afterwards.

£46,000 in costs over another laurel hedge

A more recent dispute involving Julia Lofthouse and her neighbours concerned another laurel hedge between expensive Surrey homes.

The disagreement followed the trimming of the hedge. Mrs Lofthouse maintained that it belonged to her and complained that the work had substantially reduced the privacy of her garden. Her neighbours maintained that the disputed strip was theirs and that they were entitled to maintain the hedge.

The dispute went to trial.

Mrs Lofthouse lost and was ordered to pay approximately £46,000 towards her neighbours’ legal costs, in addition to her own costs.

Perhaps the most striking feature of the case is that the court was told that a proposal had previously been made for an independent surveyor to determine the boundary so that litigation could be avoided.

It was rejected.

Whatever the rights and wrongs of that particular dispute, it provides a salutary illustration of what can happen when the cost of proving who owns a narrow strip of residential land becomes greater than almost any conceivable economic value of the strip itself.

When costs approach half a million pounds

The figures can become considerably larger.

In Gilks v Hodgson [2015] EWCA Civ 5 the Court of Appeal opened its judgment with an unusually stark observation:

“This is a depressingly unfortunate dispute between neighbours.”

The Court recorded that the costs were already approaching £500,000 — far more than the value of the rights involved.

The trial itself had lasted ten days.

Most importantly, the Court of Appeal said that it was a dispute which “could and should have been compromised on terms that both parties could live with”.

Those words could be applied to a remarkable number of boundary, access and neighbour disputes.

Why do apparently trivial disputes become so expensive?

Calling these disputes “trivial” can itself be a mistake.

To an outsider, an argument about six inches of garden may seem absurd. To the owner of the property it may represent something very different.

A home is personal. A neighbour’s alleged encroachment may be perceived as an invasion. Cutting down a hedge may feel like deliberate interference with privacy. Parking on a driveway can become symbolic of disrespect. A disagreement about a gate can become a daily reminder of the dispute.

Positions then harden.

The argument gradually ceases to be solely about the legal boundary and becomes about what happened five years ago, who said what to whom, previous grievances, alleged rudeness, noise, parking, trees, bins and sometimes decades of accumulated resentment.

That is precisely why these cases can be some of the most difficult disputes to mediate.

It is also precisely why mediation can be particularly valuable.

A court has a limited range of solutions

Litigation asks a judge to determine legal rights.

Mediation can ask a rather different question:

“What arrangement would enable these people to live next door to each other?”

That distinction matters.

A mediated agreement might provide, for example, for an agreed boundary to be professionally surveyed and recorded; responsibility for maintaining a hedge or fence; its permitted height; arrangements for pruning trees; the position and operation of a gate; precisely when and how a right of way may be exercised; parking arrangements; screening or planting to preserve privacy; contributions towards works; arrangements for access to undertake maintenance; or even an agreed mechanism for resolving future disagreements.

Some of those outcomes might not be remedies which a court would order at all.

Yet they may be much more useful to the people who actually have to continue living with the result.

The hidden cost of winning

There is another problem with neighbour litigation: winning may not feel much like winning.

Even a successful litigant may have spent years dealing with solicitors, statements, expert evidence, disclosure, hearings and correspondence. Their property may have become harder to sell because the existence of a neighbour dispute may have to be disclosed.

There is also litigation risk. A party who is entirely convinced that a boundary lies in one place may discover that a judge, having considered historic conveyances, plans, photographs, physical features and witness evidence, reaches a different conclusion.

Costs consequences can then be severe.

A dispute about land worth comparatively little can put a much more valuable home — or at least a significant part of its equity — at economic risk.

“But my neighbour is impossible”

That is perhaps the most common objection to mediation in this field.

Sometimes it is entirely understandable.

By the time lawyers become involved, each neighbour may regard the other as the problem. Neither believes that a sensible conversation is possible.

But mediation does not require the parties to like one another, and it does not necessarily require them to sit together.

A mediator can work with the parties separately. Proposals can be developed and tested privately. Technical issues can be identified and, where appropriate, surveyors’ evidence can be incorporated into the process.

Nor does mediation require either party to abandon a strongly held legal position.

The question is whether there is an arrangement which each party can accept when compared with the cost, risk and uncertainty of continuing the litigation.

That comparison becomes particularly powerful where the alternative is spending tens or hundreds of thousands of pounds establishing the ownership of a narrow strip of land.

Mediate before the costs become the dispute

There will always be property disputes which require judicial determination. An urgent injunction may sometimes be necessary and there will be cases in which the parties genuinely need an authoritative ruling about their proprietary rights.

But many neighbour disputes do not begin that way.

They begin with a hedge.

The lesson from the reported cases is not that boundary disputes are unimportant. It is almost the opposite. They matter so much to the people involved that emotion can overwhelm commercial judgment.

That is why early mediation should be considered before positions become entrenched and, particularly, before legal costs bear no sensible relationship to the value of what is actually in dispute. Our fees are published, so the cost of mediating can be weighed against the cost of litigating from the outset.

A mediation may not make neighbours friends.

It may, however, enable them to remain neighbours without spending the value of their homes arguing about the boundary between them.