Adverse possession does not always have to result in an all-or-nothing contest over ownership of the disputed land.
A conventional application under section 60 of the Transfer of Land Act 1958 is principally an administrative process. If the applicant establishes the required adverse possession and there is no successful objection, the Registrar will usually make a vesting order. There is limited scope within that process for negotiating a compromise about where the eventual boundary should lie.
Where a dispute is already before a court, however, the position is different. Proceedings under the Fences Act 1968 in the Magistrates’ Court, and adverse possession proceedings in the County Court or Supreme Court, are conducted between opposing parties. This creates greater opportunity for the parties to negotiate an agreed solution rather than incur the cost and uncertainty of a final hearing.
NICO plans
One of the most useful negotiated solutions is a NICO plan.
NICO means “Not in Common Ownership”. It allows land owned by different people to be included in a plan of subdivision so that an agreed new boundary can be created between their properties.
For example, assume an existing fence encroaches one metre into the adjoining title and one neighbour claims the whole of that one-metre strip by adverse possession. Rather than litigate whether that claim succeeds completely, the parties might agree that the new boundary should be positioned halfway between the existing fence and the title boundary.
A licensed surveyor can prepare a NICO plan showing the agreed boundary.
The agreed line does not necessarily have to divide the disputed land equally, nor does it necessarily have to be a straight line. The parties can agree upon a boundary which reflects a practical compromise having regard to buildings, fences, access, landscaping or other features of the properties.
The plan proceeds through the usual subdivision and certification processes involving the relevant municipality and Land Registry Services, and the necessary transfers are then undertaken to give effect to the new ownership.
A NICO solution can therefore have significant advantages. It allows the parties themselves to determine the eventual boundary and may avoid the expense, delay and uncertainty of contested court proceedings.
There will be some costs involved, particularly surveyor’s fees, conveyancing and registration costs, and potentially land transfer duty. Those matters should be investigated before any settlement is finalised.
Other possible solutions
A NICO plan is not the only alternative.
In an appropriate case, the parties may agree that the existing title boundary should remain and that the fence be relocated to that boundary, sometimes together with an agreed payment as part of the settlement.
There may also be circumstances in which the real issue is not ownership of the land itself but the continuing use of it—for example, for access. An easement or another agreed form of land-use right may sometimes provide a more practical solution than transferring ownership.
Another procedure which can occasionally be relevant is an application under section 99 of the Transfer of Land Act 1958 to amend a title boundary. This is a separate procedure with its own evidentiary requirements and is not an alternative available in every adverse possession dispute. Land Registry Services has, however, expressly indicated that section 99 may be considered in some boundary cases where a conventional adverse possession application cannot proceed.
Finding the practical solution
The appropriate solution depends upon the particular properties, the history of occupation, the strength of the adverse possession claim and what each party is ultimately trying to achieve.
Sometimes the important question is not simply “Who would win the adverse possession claim?”, but whether an agreed boundary or other arrangement can produce a more practical and economical result.
Gauld & Co., Solicitors advises on negotiated boundary resolutions, NICO plans and other alternatives to contested adverse possession proceedings.
