19 Aug Procedure for the resolution of a boundary dispute
Procedure for the resolution of a boundary dispute
by George Coucounis
“The Director of the Lands and Surveys is always obliged to issue a decision for the resolution of a boundary dispute”
Whenever a dispute occurs regarding the boundaries of adjacent properties which cannot be resolved amicably, the owners can apply to the Director of Lands and Surveys and request the resolution of the dispute. According to the law, such dispute resolution procedure is compulsory and it has to be followed, since the competent authority having jurisdiction to resolve such dispute is solely the Director. The Director is obliged to respond to such application, use his best endeavours to determine the boundaries of each property and issue his decision on the matter. During the discharge of his duties, the Director is obliged to use sufficient and accurate measuring instruments, rely on accurate cadastral plans, as well as the relevant facts, and consider collectively, the natural boundaries of the properties, the situation on-site and the Land Registry records. According to the relevant case law, the plans in use constitute an authentic guide in border disputes and the on-site situation cannot prevail over them in the absence of sufficient justification.
The resolution of a border dispute is carried out by the Director pursuant to the legislative authorization granted to him under Article 58(3) of the Immovable Property Law, Cap.224, in any one of the following methods: (a) By a decision of the Director issued upon the application of an owner where no amicable settlement can be achieved; upon its issuance, the Director notifies the parties and places the landmarks on the ground at his discretion in order to demarcate the boundaries, whereas he performs measurements and takes notes as he deems necessary in order to determine the position of the landmarks; (b) By amicable resolution of the dispute without relocating the registered boundary; or (c) By amicable settlement where the registered boundary is removed and the boundary line is readjusted.
In the event that the dispute is resolved through the issuance of a decision of the Director, any party who is not satisfied with the Director’s decision is entitled to file an appeal against it pursuant to Article 80 of Cap.224 at the Court of the District where the property is situated within 30 days from taking notice of the decision. Within such process, the Court has the power to review the correctness of the decision and amend it accordingly if it deems it fair and just. Given that the Director’s jurisdiction to rule over such disputes is based on the authority granted to him by a legislative act, the Courts do not accept to decide on the matter during the course of an action or in any other procedure apart from an appeal. In the event that the border dispute is resolved amicably as provided above, the Director is again obliged to issue his decision for the resolution of the dispute, notwithstanding that the dispute will be resolved amicably by and between the interested parties; nevertheless, the decision of the Director upon the amicable resolution of the dispute cannot be challenged through an appeal and no new application for the resolution of the same dispute may be filed subsequently.
A question arises as to whether a party to an amicable border dispute settlement may withdraw from such agreement. The answer is negative, since the Director is always obliged to issue his decision on the dispute, as agreed between the parties and notify it to them. In practice, the parties sign a declaration for the resolution of the border dispute under the terms of a standard form provided by the Land Registry before the competent Land Registry officer who carries out the local inquiry and designates the registered common boundary of the adjacent properties. Furthermore, the owners are requested to sign their signatures on the topographical plan designating the registered common boundary or the boundary resulting from the amicable settlement.
In the event that the Director’s decision is challenged through the filing of an appeal, the hearing takes place on the basis of the written testimony of the interested parties supporting the pleadings, given the right of each party to request the cross examination of an affiant. The Civil Procedure Rules and the relevant Regulations determine the exact procedure that is followed in such cases. In a recent judgment issued by the District Court of Limassol dated 4 August 2021, the Court made reference to the procedure followed for the hearing of such cases and concluded that the application to cross-examine an affiant signing an affidavit on behalf of the respondent could not serve any useful purpose, since he did not have expert knowledge in order to challenge the correctness of the Director’s decision, hence dismissing the application. If the appellant wished to cross-examine a witness on technical issues, she could join the Director as a party to the appeal pursuant to the relevant Regulations pertaining to the issuance of the Director’s decisions.