The Mediation Agreement - Case Study Example

Memorandum Senior Partner, Bodge Swindle & Co. Trainee Solicitor, Bodge Swindle & Co. Re: Terry Staines – Lee Vowles Fencing Dispute 13.01.2012 Questions Presented: 1. What is the law relating to the issues of: a. The fence erected by Terri Staines’ in 1996; and b. The fence to be erected by Lee Vowles in February 2012 on the boundary of the inner part of the fence post on Terri Staines’ property. 2. Accordingly, which of the two disputes (or both) should best be handled preferably by mediation? Short Answer: Apply to the Land Registry and Ordinance Survey. Meanwhile enter into a mediation agreement with the opposite party with respect to nuisance. Moreover, it is settled that the red lining in the diagrams are not definitive indications of the boundary. Brief Facts: The instant dispute is between Terri Staines (Client), resident of No. 35, Stenbale Road, Moreley, Hertfordshire AL10 9EU and his/her neighbor, Lee Vowles who resides at No. 36. The dispute arises out of the contested boundary line between the two parties. The original plan though not a scale drawing, did indicate that the boundary line to be along a small cobbled area about equidistant between the two properties; however it did show slight kinks in several places. Unfortunately, the cobbled area was removed before the sale to the client’s predecessor. Due to the goodwill that existed between the respective predecessors in title, the exact boundary line was never determined. The client and Lee are currently claiming different boundary lines; red and blue respectively. The first instance of any differences between the parties was around December 1996, when the client erected the dividing fence leading to the front of his/her garage which partially divided off the property from that of Lee Vowles’ who was ill in hospital at the time. Upon return, Lee remarked to the client that part of the fence encroached onto his/her property and asked for it to be removed. The cleint responded that the outer line of the fence goes directly from his/her garage and hence is on his/her property and it would not be moved. The difference did not aggravate since Lee had a second hospital visit and the client gifted pleasantries to Lee. The instant dispute began due to various other contributing factors, which have ruined relations between the neighbors. In early 2011, The client got a small puppy which allegedly barked and defecated around Lee’s house. When Lee complained to the client about the same, the client responded by pointing out that the barking was caused by the loud Billy Joel music that Lee played and the excrement came from stray dogs. Lee further claimed that The client’s visitors blocked his/her driveway by partially parking their vehicles across Lee’s driveway. The client responded by complaining about the stench which emanated from Lee’s uncovered trash bin. These instances together caused severe deteriorations in the relationship between the parties. On the 30th of November 2011 the client learned that Lee Vowles had decided to build a fence dividing their respective properties running from the pathway adjoining the road to the fencing erected by the client, in December 1996. The client was very concerned as the driveway was very narrow and he/she had a bad back which means he/she needs to swing the car door fully open to get out.  When The client approached Lee, he/she showed Terri a diagram and added that the correct boundary line was this inner part of the 1996 fencing. The outer part encroached on his/her land and was not the correct boundary. Terri protested stating that the outer line of the fence post was the correct boundary and if this fence was erected it would be very difficult for him/her to get out of the car due to his/her bad back as the car door could not open fully. Lee replied that that was not his/her problem and that he/she would be going ahead with the fencing early in February 2012. The client has approached us seeking legal redressal. Discussion: Land Registry and Ordnance Survey work in very close partnership with each other.  By using Ordnance Survey mapping, this allows Land Registry to cross-reference and associate their boundary information with Ordnance Survey topographic maps. Land Registry will show the extent of the land in a registered title by a red line on the title plan.  Where a boundary of the land is not defined by a physical feature on the Ordnance Survey map, Land Registry indicates it on the title plan by a dotted line.  The word “boundary” has no special meaning in law but in land ownership it is understood in two ways: The Physical Boundary: A registered title almost never shows ownership of individual boundary structures such as walls, fences and hedges.  There may, however, be some relevant information on the register or in Land Registry’s files. For example, Land Registry may have kept a copy of a deed that refers to a boundary declaration or agreement, or to the ownership or maintenance of boundaries.  Please note that, deeds rarely deal with such matters.  If ownership or maintenance is important to you, you may, for example, need to talk to neighbours and/or previous owners.   Ordnance Survey cannot provide information on either property extent or land ownership. The Legal Boundary: A legal boundary deals with the precise separation of ownership of land.  It is an invisible line dividing one person’s land from another’s.  It does not have thickness or width and usually, but not always, falls somewhere in or along a physical boundary feature such as a wall, fence or hedge.  The exact positions of the legal boundaries are almost never shown on registered title plans and are not shown on Ordnance Survey maps. General Boundaries England and Wales operates a ‘general boundaries’ system of land registration.  A title plan with ‘general boundaries’ shows the boundary of a property in relation to a given physical feature on the ground such as a wall or hedge as identified on the Ordnance Survey map. The red edging on a Land Registry title plan is therefore not definitive as to the precise position of the boundaries. Conclusion: It is recommended that we apply to the Land Registry and the Ordinance Survey to determine the actual boundary on behalf of the client. Meanwhile, enter into a mediation regarding allegations of nuisance. Agreement This Agreement (“Agreement”) is entered into by and between Terri Staines, S/o. Franklin Staines, resident of, No. 36, Stenbale Road, Moreley, Hertfordshire AL10 9EU (Terri Staines), and Lee Vowles, S/o. James Vowles, resident of No. 37 Stenbale Road, Moreley, Hertfordshire AL10 9EU (Lee Vowles). Recitals This Agreement is made with reference to the following: WHEREAS, Terri Staines and Lee Vowles are neighbors with They have adjoining driveways though there is no dividing fence between the two driveways until approximately 25 feet from the pathway; WHEREAS, original plan though not a scale drawing, did indicate that the boundary line to be along a small cobbled area about equidistant between the two properties; however it did show slight kinks in several places; WHEREAS, around December 1996, Terri Staines erected the dividing fence leading to the front of his/her garage which partially divided off the property from that of Lee Vowles’; WHEREAS, consequent to certain issues, Lee Vowles decided to build a fence dividing their respective properties running from the pathway adjoining the road to the fencing erected by Terri Staines, in 1996; WHEREAS, the parties wish to amicable settle the ancillary issues which have given rise to the dispute regarding the boundary. Agreement I. NOW, THEREFORE, in consideration of the foregoing Recitals, which are hereby incorporated and made a part of this Agreement, and in further consideration of the promises set forth below, the parties hereby agree to the Terms and Conditions as follows: Terms and Conditions 1. It is unequivocally affirmed that Terri Staines’ dog shall not defecate in the premises around Lee Vowles’ house 2. It is unequivocally affirmed that Lee Vowles’ shall enjoy Billy Joel’s renditions within the confines of his house in such manner that the volume of the music is not audible within the premises of Terri Staines’ house. 3. It is unequivocally affirmed that the Terri Staines’ Dog shall be treated by a Vet to ensure that there are no other physiological reasons for the incessant barking. 4. It is unequivocally affirmed that Lee Vowles shall displace his/her trash bin to the side which is not adjacent to Lee Vowles’ house; and such trash bin shall have a proper air-tight lid installed. 5. It is unequivocally agreed that Terri Staines’ shall take all reasonable steps required to ensure that his/her visitors do not park their vehicles in such manner which might be detrimental to Lee Vowles’ rightful usage of his property. 6. It is unequivocally agreed that the parties shall apply to the Land Registry and Ordinance Survey to determine the actual boundary of their property, pending which no construction of a new fence shall take place. II. The parties hereto acknowledge that each has the authority to execute this document to be fully binding on behalf of the person or entity indcated. III. The parties agree to release, discharge, and forever hold the other harmless from any and all claims, demands, or suits, known or unknown, fixed or contingent, liquidated or unliquidated, whether or not asserted in the above case, as of this date, arising from or related to the events and transactions which are the subject matter of this case. IV. This mutual release runs to the benefit of all attorneys, agents, heirs of the parties. "Party" as used in this release includes all named parties to this case, as well as , and all related entities of the parties. V. Each signatory hereto warrants and represents: (a) he/she has authority to bind the parties for whom that signatory acts. (b) the claims, suits, rights, and/or interests which are the subject matter hereto are owned by the party asserting same and have not been assigned, transferred, or sold and are free of encumbrance. VI. The parties agree to cooperate with each in the drafting and execution of such additional documents as are reasonably requested or required to implement the terms and spirit of this agreement. VII. If one or more disputes arise with regard to the interpretation and/or performance of this agreement or any of its provisions, the parties agree and designate Ronald G. Wisenthal as the binding arbitrator of any dispute in the language of this Agreement, and the parties agree that the parties shall pay their pro-rata share of the arbitrator’s fee at the time of arbitration. VIII. This Agreement is made and performable in Moreley, Hertfordshire, and shall be constructed in accordance with the laws in force in the United Kingdom. IX. Each signatory to this agreement has entered into it freely and without duress after having consulted professionals of his/her choice. Each part hereto has been advised by the mediator that the mediator is not the attorney for any of the parties and each party should have this agreement reviewed by the party’s attorney prior to executing the same. Dated: 13.01.2012 ________________ ________________ Terri Staines Lee Vowles To. Terri Staines, No. 36, Stenbale Road, Moreley, Hertfordshire AL10 9EU. Lee Vowles, No. 37, Stenbale Road, Moreley, Hertfordshire AL10 9EU. 13.01.2012 Dear Sirs/Madams, SUB: Areas not covered by the Settlement Agreement This is with reference to the Settlement Agreement dated 13.02.2012 regarding the ancillary issues concerning the boundary between your residences. I would like to bring to notice that terms of settlement have been arrived at only regarding the following issues: 1. Dog excrement 2. Billy Joel renditions 3. Incessant dog barking 4. Trash bin placement and air-tight lid 5. Parking along the pathway It is pertinent to note that the primary dispute regarding the legally recognised boundary between the premises of both parties still remains unsettled. However, both parties have executed an arbitration agreement to refer the matter to arbitration after the findings of the Land Registry and Ordinance Survey. ________________, Mediator Read More