“For every harassment claim in a boundary dispute, there must be a harassment counterclaim”
Boundary disputes, in their purest form, are very much about property law. One looks at the relevant conveyances and their plans, a measured site survey, an account of how boundary features came to be, and this allows a legal conclusion to be reached.
However, boundary disputes are also, in many cases, disputes between neighbours. Indeed the boundary dispute is often merely a manifestation of a deeper dispute between neighbours who have fallen out with one another.
In recent years, in particular since the Protection from Harrassment Act 1997 has become more widely used, it has become increasingly common for boundary dispute litigants to bring, alongside their claims for declarations as to the true boundary between properties, a claim based on multiple allegations of acts of harassment on the part of their neighbours.
There are, however, serious problems with such harassment claims, which I wanted to discuss in an attempt to assist other dealing with them.
Loss of objectivity
When neighbours fall out, objectivity goes out of the window. Every boundary dispute litigant I have ever acted for is convinced that they are entirely reasonable, and it is their neighbours who are the lying, scheming, conniving, vicious and unreasonable ones, enjoying nothing more than thinking of new ways to make my clients’ lives miserable. This is their genuinely-held but entirely subjective view. Their neighbours hold the same view, albeit from a diametrically opposite perspective. It is almost as if both sets of neighbours have donned a pair of boundary dispute glasses through which everything their neighbours do becomes negative. This is all a question of perception.
Thus the most innocuous acts become the source of allegations of harassment. Actual allegations I have seen, albeit not quoted precisely, include (with the neighbours’ perception included in brackets):
“They waited until I was home before they cut their lawn” (just to annoy me with the noise)
“They regularly leave the house at the same time as me” (just to make it more difficult for me to get out of the shared drive)
“They smiled sarcastically at me” (and I know it was sarcastic because, well, I just know)
It is now an almost universal complaint in such cases that “they were taking photographs of me” or “their CCTV is pointed deliberately at my property”. The irony of my clients showing me photographs of their outrageous neighbours taking photographs of them is always lost on my clients.
Any surveyor or litigator reading this and whose clients are demanding that such allegations are included in a claim should remember that whilst clients lose their objectivity, judges do not. I have lost count of the number of judges who have described harassment claims and counterclaims as “six of one and half a dozen of the other”. If it seems like a fuss about nothing to you, a judge will see it the same way.
The inevitable counterclaim
As a result of the loss of objectivity, neighbours will undoubtedly see their own conduct as blameless. Further, and if you have the gall to point out that one or two things they have done might possibly be perceived in a negative way, they will explain that they were driven to such acts by the conduct of their neighbours, and that they are in any event minor compared to that conduct.
It is unsurprising, therefore, that there is a universal rule that for every harassment claim in a boundary dispute, there must be a harassment counterclaim.
I therefore have two tips for solicitors whose clients wish to bring a claim for harassment in a boundary dispute: (1) try and persuade the clients not to pursue such a claim; and (when they insist on doing so anyway) (2) try and limit the allegations to a small number – no more than half a dozen – of the most serious instances.
In explaining why harassment claims are generally a bad idea, it is worth pointing out to clients two key matters: (1) judges hate such harassment claims, are generally unwilling to make any significant findings of misconduct, and are very unlikely to make any injunctions unless they apply equally to both parties; and (2) harassment claims generally require a great deal of factual evidence, and, as a rule of thumb, will triple the length of a boundary trial which does not include harassment claims
The importance of evidence
Assuming that you have been unsuccessful in dissuading clients from bringing a harassment claim, there are a couple of tips I would strongly suggest, both of which are directed towards being able to bring good quality evidence before the court at trial.
First, ask the clients to keep a diary of all incidents/interactions between them and their neighbours. Although it is common for the police and/or local authority to suggest that a diary is kept, this is generally limited to a diary of actual or perceived misconduct on the part of the neighbours. It is far more useful to keep a note of all interactions between the neighbours, so that there is a contemporaneous record which can be used defensively as well, i.e. when the neighbours complain about what was in fact an entirely innocuous interaction.
Secondly, and this might be somewhat controversial, I would also advise that digitally-recording CCTV is installed, preferably directed primarily towards one’s own property, but covering any areas of actual or likely conflict. Although it is a common complaint by neighbours that CCTV has been installed which interferes with their privacy, my experience is that such complaints are rarely if ever upheld by the court, and, more importantly, the existence of CCTV both (1) acts as a deterrent to poor behaviour on the part of neighbours, and (2) can sometimes be very effective as evidence that an alleged incident either did not take place, or did not take place as alleged. I emphasise that CCTV is most useful to provide defensive evidence, and should be regarded as such, not as a method of collecting evidence to be used against the neighbour.