By Karen Walsh
A person buying property should always be advised to instruct an engineer to check that the boundaries of the property on the ground match the maps.
This is good practice and ensures that what is purported as being sold matches what is sold on the ground.
It is possible for changes in the landscape, such as erosion by a river or the uncontrolled growth of a hedge to occur, which can cause boundaries on the ground to change.
Boundary disputes may also arise where people simply forget what lands exactly belong to them and what belongs to their neighbour, particularly in the context of farmland where there may be large holdings or a number of holdings, and it may not be entirely clear where boundaries begin and end. There may be uncertainty in respect of boundaries where a premature death results in a change in ownership, or where the administration of an estate is delayed by a long period of time.
If there is a disagreement in respect of a boundary, this can result in boundary disputes between neighbouring landowners. Disputes also frequently arise over shared access ways, rights to light or air rights, drainage rights, trees planted in which hang over the boundary into another’s land. These are just some examples.
When you are purchasing property, a competent engineer or surveyor should check the boundaries before purchase. Your solicitor should instruct them to do so.
It is also extremely important to clearly mark the property boundaries in order to avoid unnecessary confusion which could lead to disputes.
Boundary disputes between neighbouring landowners have the potential to last for many years and can have a terrible impact on those involved, often resulting in neighbouring families not speaking for years. It is advisable to instruct a solicitor immediately if you are unsure of where a boundary begins and ends. They will review your title documents and can again instruct an engineer to check maps to ascertain what is on the map matches what is on the ground.
In the courts, boundary disputes can be acrimonious and protracted. Farmers particularly, and landowners more generally, feel a deep connection with land and seek to protect their rights to the property. The area of land being disputed can be very small and often the cost of litigating the matter exceeds the value of the land being disputed.
If there is an ongoing boundary dispute, this can affect the value of the property, as there will be ongoing litigation relating to the land and uncertainty as to the correct boundary.
Disputes arise despite best efforts to resolve them.
It is important to note the legal position and options available in the event of such a dispute. It is advisable to remain on friendly terms with the neighbouring landowner, in the event of a dispute arising. Ideally, the way to deal with a boundary dispute is to resolve it out of court by agreement or mediation.
The Land and Conveyancing (Law Reform) Act 2009 deals with the law regarding boundary disputes. There are many different types of disputes, which could arise from many circumstances.
An example of a source of dispute is where a river or stream forms the boundary between farms. There is generally a presumption under Irish law that ownership extends to the centre of the riverbed, unless it is owned by another. If the dispute is taken to court, the judge will examine the title deeds and will listen to evidence provided before deciding the issue.
Before litigating and bringing a case against a neighbouring landowner, a solicitor should advise as to the probable costs of the dispute, and most importantly whether it is worth bringing the claim.
A solicitor will not be able to advise with accuracy as to what these costs will be, as they will fluctuate, depending on the level of work required, and on when the matter settles or is resolved.
It will be considerably more expensive if the matter goes to a court hearing, and landowners should be aware that the party to the dispute who is unsuccessful in court may have to pay the successful party’s legal costs as well as their own.
Once the advice of a solicitor and a surveyor/engineer has been given, it is possible to weigh up all relevant factors and make an informed decision on the matter.
If the dispute cannot be resolved amicably, and the parties do not wish to incur the costs of court proceedings, it is possible to enter into arbitration or mediation.
Arbitration or mediation is an alternative to court for resolving disputes, and can significantly reduce costs as this is a less formal process which does not involve court and the associated costs.
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.
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.