How to Resolve Property Encroachment Disputes During Conveyancing

Property encroachment disputes are a common issue encountered during the conveyancing process in England and Wales. An encroachment occurs when a structure, feature, or use of land extends across the legal boundary onto a neighbouring property. Examples include garden walls, outbuildings, fences, driveways, patios or even hedges that extend beyond the registered boundary. These disputes can delay a property sale, frustrate buyers, and potentially affect mortgage lending if they are not handled correctly.

What Is Property Encroachment in Conveyancing?

Encroachment is a specific type of boundary dispute where a physical building or use breaches the legal boundary dividing two properties. It differs from other boundary issues that may merely involve uncertainty over where the boundary line lies. An encroachment usually involves a tangible crossing over a neighbour's land, which may result in a claim of trespass or adverse possession if left unchallenged over a long period.

During conveyancing - the legal process of transferring property ownership - encroachment issues typically surface through:

• Title plan discrepancies (the document on the Land Registry does not match the physical boundary on the ground).
• Responses to standard property information forms (TA6) from the seller.
• Surveyor reports identifying boundary features that appear to cross the registered boundary.

Step‑by‑Step Guide to Handling Encroachment Disputes

1. Review Title Documents and Title Plan

At the outset of conveyancing, solicitors will review:

• The title register.
• The title plan and any historical deeds.
• Property information forms completed by the seller (including boundary and dispute questions).

This early review helps identify discrepancies between the registered boundary and physical features. Title plans can be indicative rather than precise; a fence or wall shown on the ground might not reflect the legal boundary and may require clarification.

2. Obtain a Professional Boundary Survey

Where the title documents do not clearly explain the situation on the ground, it is often advisable to instruct a chartered surveyor experienced in boundary matters. A survey can:

• Measure and map the physical boundary.
• Produce a report with a detailed plan based on Land Registry plans and deed descriptions.
• Help both parties understand where the legal boundary is likely to be.

Joint boundary surveys, where neighbours agree to share the cost and accept one surveyor's report, can reduce costs and facilitate agreement.

3. Communicate with the Neighbour

Informal discussion between neighbours often resolves minor disputes quickly. Clear communication can:

• Clarify misunderstandings about where the boundary lies.
• Lead to a written agreement about the encroachment or boundary position.
• Prevent escalation to formal legal procedures.

Writing down any agreement and having both parties sign it helps demonstrate mutual consent if the issue resurfaces during or after conveyancing.

4. Consider Mediation or Alternative Dispute Resolution

If informal negotiation fails, mediation is a cost‑effective next step. A neutral third party can assist neighbours in reaching a mutually acceptable resolution without going to court. Mediation often costs significantly less than full litigation and can preserve neighbourly relations.

5. Apply for a Determined Boundary with HM Land Registry

When the title plan is ambiguous and parties cannot agree, an application for a determined boundary may be appropriate. This process involves:

1. Instructing a chartered surveyor to prepare an accurate boundary map.
2. Completing and submitting Form DB to HM Land Registry with the survey plan.
3. Addressing any objections from the neighbour.

A determined boundary is a formal declaration by Land Registry of the boundary position between adjoining titles. Although it does not directly require removal of an encroachment, it provides a clear legal reference for future disputes.

6. Use Indemnity Insurance to Facilitate Conveyancing Completion

Sometimes the encroachment cannot be fully resolved in time for completion of the sale. In such cases, boundary dispute indemnity insurance can be arranged. This type of policy protects the buyer and their mortgage lender against financial loss arising from the dispute in the future without rectifying the underlying issue.

Indemnity insurance is usually a one‑off premium and may satisfy a lender that the risk of unresolved encroachment is covered, allowing the sale to proceed. It does not fix the problem but manages the risk.

7. Take Legal Action as a Last Resort

If all other avenues fail, legal action may be necessary. Options include:

• Bringing a claim for trespass or encroachment in the county court.
• Applying to the First‑tier Tribunal (Property Chamber) in England and Wales to determine rights and remedies.
• Seeking an injunction (court order) to stop ongoing encroachment or require removal.

Litigation can be expensive and time‑consuming. Court costs, legal fees, expert witness charges and associated expenses often run into tens of thousands of pounds, so this route is typically reserved for high‑value or entrenched disputes.

Legal Time Limits and Adverse Possession

Claims based on trespass or encroachment generally must be brought within six years from when the issue first arose under the Limitation Act 1980. Delaying can weaken a claim.

Adverse possession - where someone may claim legal ownership after exclusive possession without permission - also factors into boundary disputes. In registered land under the Land Registration Act 2002, adverse possession may arise after ten years of continuous occupation with a reasonable belief of ownership.

It is essential to get timely advice to protect legal rights and avoid unintended loss of land through adverse possession.

Risks and Practical Considerations

• Hidden encroachments discovered late in conveyancing can delay or even derail a sale.
• Non‑disclosure of known disputes when selling can lead to misrepresentation claims from the buyer.
• Resolving boundary or encroachment issues before marketing a property tends to improve buyer confidence and speed up conveyancing.
• Costs for resolving encroachment vary widely, from modest surveyor fees to significant legal costs if litigation becomes necessary.

Key Takeaways

Encroachment disputes discovered during conveyancing require careful, methodical handling. The steps below provide a clear framework:

1. Examine title deeds and plans.
2. Commission a professional boundary survey if needed.
3. Communicate and negotiate with neighbours.
4. Use mediation or alternative dispute resolution.
5. Consider a determined boundary application.
6. Arrange indemnity insurance when appropriate.
7. Resort to legal claim or tribunal only when necessary.

Acting proactively, documenting agreements, and understanding the legal framework helps protect both buyer and seller interests while keeping conveyancing on track.

James William Steven Parker

James is the founder of UKLegalGuides.com and a former agent at the Ministry of Justice (UK). With a background in processing legal claims, he launched this platform to make the laws of England and Wales accessible to everyone.