Property boundary disputes can be a fact of life when you own a home in Bermuda. From minor disagreements over an encroaching fence, to major rows over who owns a certain piece of land, successfully navigating the situation invariably requires a level-headed approach and knowledge of your rights. In this article, Senior Associate Oliver Goodwin explains how to navigate property boundary disputes.

1. How common are boundary disputes in Bermuda, and what are the main reasons that they happen?

Boundary disputes typically arise in situations where the apparent physical and legal (or “deeded”) boundaries of properties do not accord with one another leading to one owner asserting ownership and title to property, and use of such property, which is in fact owned by a neighbour.

This may be due to:

  • historical use of less accurate surveying devices;
  • intentional or natural movement of boundary features; or
  • because a previous informal agreement between neighbours was not properly formalised or recorded with the property deeds leading to uncertainty as to the legal extent of respective property boundaries and the respective right of owners to the continued use and enjoyment of specific land.

Whilst boundary discrepancies or existing encroachments of one property over another, are relatively commonplace in Bermuda, in many instances these are minor in nature and are rectified without issue. Property owners are keen to ensure that there is clarity and certainty as to the extent of their respective property boundaries and the rights and obligations of third parties to access or use their land.

Common encroachments of one property over a neighbouring property include:

  • semi-permanent structures – e.g. walls, fences, patios etc.
  • more permanent structures – e.g. buildings, retaining walls etc.
  • encroachments of use – e.g. garden areas, accessways etc.

2. What are the potential impacts of a continuing encroachment by a neighbouring property over your property or the continued use of such property by a neighbour?

There are two fundamental elements of concern:

  • the impact the existing encroachment has or may have on the underlying value of their property; and
  • the existing encroachment prevents them from enjoying the full use of the extent of their property.

Some common concerns include:

  • The risk that a neighbour may successfully bring a claim for “adverse possession” in respect of the encroachment area and legal title to such land is lost with the subsequent reduction in the value of their remaining property.
  • The potentially significant cost and time implications associated with rectifying encroachments and boundary discrepancies.

Even when a boundary survey is conducted of a property soon to be sold and a boundary discrepancy is identified. Even where both impacted property owners are in agreement and an amicable resolution is soon found the resulting necessary boundary adjustment will require sub-division approval from the Department of Planning meaning months of delay to the sale of the property and significant costs incurred.

3. What are the best ways to avoid a boundary dispute in the first place?

Do Not Ignore the Problem

I would always encourage action to be taken to consider and deal with any known boundary discrepancies or encroachments long before the possibility for a dispute arises.  You may have an existing long standing amicable relationship with your neighbour but you should be mindful that this may not always be the case and very often it is best for resolution to be found at the earliest opportunity to avoid potential future conflicts.

Obtain Legal Advice

It may perhaps come as little surprise that I would recommend seeking legal advice when considering any boundary concerns. Consult with a property attorney who can review your property deeds and offer guidance on your rights, legal options, and how best to proceed. Knowledge of the legal framework can empower you to make informed decisions and best protect your interests. An attorney can also, where appropriate, communicate with the neighbour on your behalf, potentially helping to reduce direct conflict between you and your neighbour.

Consider the Need for a Boundary Survey

Where the property has not been surveyed in some time, your attorney may recommend that you instruct a boundary surveyor to inspect the property and, where appropriate, re-stake the legal property boundaries, prepare an update property plan showing the extent of the deeded property and prepare a survey report highlighting any existing boundary discrepancies or encroachments.

4. How should people go about resolving boundary disputes? Can we talk things through step by step?

The reasons for the causes, and the nature of, boundary disputes are wide, extremely varied and often involve complex interpersonal relationships between neighbours. As such unfortunately there really is no “one size fits all” step plan to resolving boundary disputes.

5. What common mistakes do people make when it comes to boundary disputes? How might these mistakes be avoided?

Perhaps contradictorily the two most common mistakes people with regards to encroachments or boundary discrepancies are:

  1. Taking no action at all to establish and formalise, as needed, the underlying legal position of a known and continuing boundary discrepancy or encroachment; and
  2. Taking some direct action (for example confronting a neighbour, erecting or moving fencing to block or frustrate access or seeking consent of a neighbour to the continued use of land) without first taking legal advice with regards to the potential consequences of such action.

6. Do you have any advice for people dealing with difficult neighbours?

  • Document Everything: Keep clear records of all communications with your neighbour, including dates, times, and content of conversations, letters, emails, or any other interactions related to the dispute. This documentation can be crucial if legal action becomes necessary.
  • Avoid Confrontation: Where possible try to minimise direct confrontations or arguments with the neighbour. Engaging in heated discussions might exacerbate the problem. Instead, opt for written communication or involve neutral third parties like mediators or lawyers.
  • Stay Calm and Patient: Where direct discussions are needed do your best to maintain a composed and respectful demeanour, even if the neighbour is difficult. Emotional reactions can escalate the situation.
  • Consider Mediation: If direct communication has been unsuccessful, suggest mediation as an option. A neutral mediator can facilitate discussions and potentially find a resolution both parties can agree on.
  • Patience is Key: Resolving boundary disputes can take time. It’s important to be patient and persistent in seeking a fair and legal resolution. 

7. What kind of costs might people expect to face as they deal with a boundary dispute? And how can people keep the costs down?

Common costs associated with boundary disputes are:

  • Legal fees;
  • Survey costs;
  • Court Costs;
  • Property or boundary modifications following resolution of the dispute; and
  • Time and opportunity costs.

Like any litigation, boundary disputes can be long, stressful and expensive. Seeking early legal advice and exploring alternative dispute resolution methods could potentially mitigate some of these costs.

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