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Ask a lawyer: Navigating property disputes

Keep calm as you deal with enroachment
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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.

Oliver Goodwin, a Senior Associate in property at Conyers Dill & Pearman, shared his expertise in the subject.

“Boundary disputes typically arise in situations where the apparent physical and legal boundaries of properties do not accord with one another,” Mr. Goodwin said.

This can lead to one owner claiming ownership and use of the property, which is in fact owned by the neighbour.

Some disputes arise because less accurate surveying devices had been used in the past, or boundary features have naturally or intentionally shifted over time.

Other times, an informal agreement between neighbours might not have been properly formalised or recorded with the property deeds. Mr. Goodwin said this can lead to uncertainty over the legal extent of the boundaries.

Oliver Goodwin

Mr. Goodwin said boundary discrepancies, or existing encroachments of one property over another, are relatively commonplace in Bermuda, but they are often quite minor and 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,” he explained.

Common encroachments of one property over a neighbouring property include semi-permanent structures such as walls, fences, and patios; more permanent structures like buildings and retaining walls; and encroachments of use through garden areas or accessways.

A neighbour’s encroachment, of course, can mean you don’t get to enjoy the full use of your property – and it could also impact the underlying value of your property.

Other problems, according to Mr. Goodwin, include:

• A neighbour may successfully bring a claim for “adverse possession” regarding the encroachment area. This would mean you lose the legal title to the land and the value of your property drops.

• The neighbour’s actions on the encroaching land could damage your property in some way.

• Potential liability concerns if a neighbour is injured on your property.

• Rectifying encroachments and boundary discrepancies can be costly and time-consuming.

He warned the costs and time spent can sometimes rack up 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,” he said.

Unsurprisingly, Mr. Goodwin advises nipping the problem in the bud.

“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,” he said.

“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.”

You should seek 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.”

A boundary survey might help clear things up.

Mr. Goodwin said: “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.”

The most common mistakes homeowners make while tackling boundary disputes are either to take no action at all – or to act too aggressively.

Mr. Goodwin advised taking the middle ground. You should seek to establish and formalise the underlying legal position of a boundary discrepancy or encroachment. However, avoid taking direct action such as confronting your neighbour, or erecting or moving fencing to block or frustrate access, without first taking legal advice about the potential consequences.

When your neighbour is behaving in a difficult way, Mr. Goodwin suggested the following:

• Document everything. Keep clear records of all communications with your neighbour, including dates, times and content of conversations, letters, e-mails, 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.

• Be patient. Resolving boundary disputes can take time. It’s important to be patient and persistent in seeking a fair and legal resolution.

If your boundary dispute drags on, you could end up with legal fees, survey costs and court costs as well as unwanted property or boundary modifications – not to mention anxiety and all that wasted time.

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

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