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Pushing the Boundaries
A private member's bill entitled 'Property Boundaries (Resolution of Disputes) Bill' would force disputes over boundaries to follow an expert determination procedure involving the appointment of up to three surveyors.
When would the new scheme apply?
Under the Bill, where a landowner wishes to establish the position of a boundary or the location and extent of a right of way, he must follow a set statutory procedure to do so.
The Bill is also to apply where:
- a claim has been issued in court alleging either trespass by a neighbouring owner or obstruction of a right of way and in either case a defence has been filed;
- a claim has been issued in court for a declaration concerning a boundary or right of way; or
- an application has been made to the Land Registry for a determination of the exact location of a boundary.
The landowner must serve notice on his neighbour or the beneficiary of the right of way with a plan showing what he thinks is the extent of the boundary/right of way. The neighbour/beneficiary can either consent or object within 14 days. If they object or fail to respond in this relatively tight timescale then a 'dispute' is deemed to have arisen.
What happens next?
The parties must then appoint an agreed surveyor. If they cannot agree, they must each appoint a surveyor who will then appoint a third surveyor. Either the agreed surveyor or at least two of the three surveyors will then make a determination and award.
What if the surveyors get it wrong?
Either party can appeal within 28 days of the award, but only to the Technology and Construction Court.
Problems with the Bill
Whilst the apparent intention behind the Bill – to keep more boundary disputes out of the courts – seems laudable, there are some potential problems with the proposed new scheme:
- No other form of ADR is permitted despite the fact that earlier this year the Ministry of Justice thought "mediation seems to be quite successful where it is used and may be capable of wider use".
- The Ministry of Justice also considered that it was a "most radical proposal…to establish a new independent expert determination system based on the Party Wall etc. Act 1986" and "[did] not think that the case has been made for such a radical departure".
- The Bill takes no account of the complexity of boundary disputes. It is not infrequent to have to carry out a detailed review of title deeds and other documents which are usually outside the remit of a surveyor.
- As drafted, parties already subject to proceedings, no matter how far advanced, will be subject to an automatic stay.
What happens if the applicant cannot identify the neighbouring landowner? An application to the Land Registry to determine an exact boundary is more flexible in this respect.
The Bill is listed for a second reading on 11 September 2015 where the members of the Lords will have their first opportunity to fully debate it. However, the key stage will be the Committee stage after the second reading where amendments will be proposed. Observers are no doubt waiting with bated breath to see whether the Bill will survive the second reading and subsequent Committee stage unscathed.
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