In practice, boundary disputes sometimes arise when neighbours compare plans of their property to the position on the ground and find discrepancies. Usually, however, it is not appropriate to rely solely on plans in order to investigate the legal boundary of the property.
As far as Land Registry plans are concerned, the reason is that most land is registered with general boundaries only. This means that the red edging on a title plan only shows the general position of a property’s boundary and not the exact line. Further, black lines on a title plan represent boundary features such as walls, hedges, fences or buildings. These derive from Ordnance Survey maps. It is usually inappropriate to seek to establish a legal boundary derived from the Ordnance Survey: first, because the boundaries shown are merely physical (and not legal) boundaries, secondly, because the scale used of 1:2500 is inadequate. As one Judge put it: “if a plan is intended to control the description, an Ordnance map on a scale of 1:2500 is worse than useless”.
So how does one establish the legal boundary of a property?
Often this will involve consideration of a number of factors, with the starting point being the parcels clause in the conveyance describing the relevant land and any plans attached to such documents, but also considering physical features on the ground may be appropriate.
Even when a plan has been prepared, care needs to be taken. It is not unheard of for the description of a property in a title deed to conflict with a plan attached to that deed, which sometimes leads to dispute. Often, one will need to consider on what basis the plan has been prepared.
For example, if a plan is limited by the phrase “for identification purposes only” the description in the title deed will prevail where there is conflict. The phrase should only be used to show the general location of land but not its precise extent. That said, it can be used to supplement a verbal description which is not clear. The surrounding physical circumstances can also be taken into account. Note that plans which are described in this way will generally be rejected by the Land Registry.
Where the phrase “more particularly delineated or described on the plan” is used, the plan holds more sway. If the wording in the contractual document differs to the plan, the plan will usually prevail.
The emphasis to be given to a plan was considered in the November 2011 Court of Appeal Decision of Brown v Pretot3. In that case, a parcels clause in a conveyance placed a garage within the plot but did not officially identify the boundary. The clause referred to the plan but the plan was stated to be for identification only. There was a conflict between the plan and the transfer clause in that based on what the plan showed, the garage was partly within the relevant plot and partly outside it. It was recognised that this was an absurd result. On appeal, the court recognised that the whole of the garage was within the plot and, to that extent, the plan did not show the correct boundary. It was necessary to look at evidence of the actual and known physical condition of the land at the date of the conveyance with the attached plan in one’s hand, and to construe the conveyance against the background of the surrounding circumstances, which included knowledge of the objective facts reasonably available to the parties at the relevant date.
Latin Quarter - In rem/in personam
“In rem” means “against a thing”. An action in rem is directed towards a piece of property
rather than against a person (“in personam”). The phrases are of relevance in possession
proceedings, particularly against squatters. The order made in possession proceedings is
that possession be delivered up to the claimant, who must therefore be the party entitled to
possession. For example, in the event of squatters occupying a shop which is the subject of
a lease, then it is for the tenant – as the party entitled to possession – to bring proceedings;
whereas, if the shop is vacant, then it would be for the landlord to sue. Either way, the order
made would be that possession be handed over, rather than against a particular party.