Alan Cameron | Partner

When a plan doesn’t come together

Dougherty v Taylor Boundaries (2022) SAC (Civ) 20

When it comes to boundary disputes you will want to make sure you get the A team in to support you. A recent Sheriff Appeal Court decision involving a dispute over the boundary of two gardens of neighbouring properties involving a strip of land less than 1 meter wide aims to shed some light and guidance on the way the bench reaches a decision.

By their nature, boundary disputes are contentious, complex and can involve a great deal of emotional distress to those who feel their property rights are being infringed.  It can often be the case that such disputes, particularly in urban/sub-urban settings, involve areas of ground measuring centimetres as opposed to meters.  Such disputes can arise following something as simple as newly constructed boundary fence.

In the Sheriff Appeal Court’s case, a proprietor raised the action in the Sheriff Court against her neighbour. The proprietor argued that their neighbour had encroached onto their property. At issue was the question of whether a Land Certificate plan was precise enough to allow for the dispute to be resolved.

On the site there were few reliable markers or other visual clues as to indicate where the boundary lay. The proprietor believed the Land Certificate plan, which showed a dotted line marker by their surveyor on a detailed plan, required to be given effect and thus proved encroachment. The Sheriff Court held that the proprietor had established encroachment for part of the boundary but not for a strip approximately 90 feet long.

The neighbour submitted that the Land Certificate plan did not resolve matters, because it could not operate to transfer land which was owned by them, who had obtained ownership by prescriptive possession. In any event, it was submitted that the strip of land was too narrow for the Land Certificate plan to accurately determine ownership.

The Sheriff Appeal Court agreed with the findings of the Sheriff Court and drew attention to the problem that the area was so narrow and poorly defined that the dispute was beyond the capacity of the Land certificate plan to resolve.  Perhaps just as important, the original Sheriff made it clear that they preferred the evidence of the neighbour’s surveyor over the proprietor’s.  The proprietor’s case rested on the plan prepared by their surveyor and the court found that they had failed to prove their case.

This decision shows us the importance of defining your case, instruction of the best experts and the complexities involved in proving a case involving areas of land of low dimensions. If you have a boundary problem, if nobody can help, and if you can find them (see our contact details), maybe you can hire the JB-Team.

Alan Cameron

Alan Cameron

Dispute Resolution Team

“My motto is: ‘First they ignore you, then they ridicule you, then they fight you, and then you win.’”

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