Acrimonious battles of the boundaries are frequently reported by the British press as a highly disputed area of law. Such battles are perhaps unsurprising as the exact boundary line between adjoining properties can be difficult to establish and, in densely populated areas where space is at a premium, the dividing line between properties is closely guarded.
The problem is not exclusive to residential properties although these tend to attract the volume of press coverage. Commercial developments, particularly within urban environments, often build out to within a fraction of the boundary line. To err on such a development is to risk a trespass onto the adjoining property with the potential for protracted negotiations or even litigation to retrospectively correct the error.
DRAWING THE LINE
Many people assume the red line delineating the property on the plan filed at the Land Registry is an infallible answer to where the exact boundary lies. This is not necessarily the case. There are a number of instances where the Land Registry plan and the boundary on the ground do not exactly tally. It may be that the Land Registry, when mapping the title from the original conveyance plan, made an error. It may be that a developer has constructed a boundary feature askew of the plotted boundary line. It could also be that a boundary feature has been replaced and the replacement feature is not located in exactly the same place as the previous boundary feature or it may be that the boundary has changed over time. All these circumstances can result in the boundary at ground level being in a slightly different position to that shown at the Land Registry. As a result, disputes often arise and questions are asked as to how such conflicts can be resolved. Should it be by reference to the original conveyance, the Land Registry plan or the features on the ground? The answer will always depend on the facts of the case but a number of guiding principles assist with an often tricky judgement.
GENERAL BOUNDARIES RULE
There is often confusion between the legal boundary of a property and the physical boundary. The legal boundary is, according to the Land Registry, the line which is not visible on the ground that divides one person’s land from another’s. It is rarely identified with any precision either on the ground or in the deeds. The physical boundary is usually much clearer as there is often a boundary feature such as a dividing wall. However, it is often the mismatch between the legal boundary and the physical boundary that provides ripe pickings for litigation. Although it may be intended that the legal boundary follows the physical boundary, discrepancies frequently occur but can be overlooked until the issue becomes critical.
Because of the difficulty in establishing the precise legal boundary the majority of land in England and Wales is registered at the Land Registry with a general boundary only. In other words the title plan does not provide a definitive answer as to “whose line is it anyway?”.
In recognition of this, the Land Registry offers a procedure that allows the exact line to be determined and recorded on a registered title. The determined boundary procedure requires a plan which is drawn to a stated and recognised scale with precise and accurate measurements. Of course, if the boundary is in dispute from the start then it may be difficult to involve the adjoining owners, but for properties where land will be developed to the boundary line a determined boundary procedure would ensure that there is no possibility of future disputes. An alternative is to clarify the boundary by entering into a boundary agreement. A boundary agreement is a cheaper and less time consuming method of providing some clarity as to the dividing line.
LAND REGISTRY GUIDELINES
To facilitate plotting lease and freehold plans on the OS maps, over the past few years the Land Registry have been taking a particularly hard line over plan requirements.1 Having published a clear set of guidelines which must be followed when preparing title deed plans, including lease plans, the message is clear: if the guidelines are not adhered to the plan will be rejected and the transaction will not be completed by registration at the Land Registry. The guidelines include the need to provide orientation, not to reduce the plan and not to mark it for identification only. The Land Registry stipulates that as a general rule, once a title plan has been prepared, they will only make an amendment to the title boundary with the agreement of the registered proprietor or as a result of a specific application.
The Land Registry also stress that it is of utmost importance that the land to be registered is described fully and accurately in the deed inducing registration. Such is the importance of the plan that on sale of part or a lease the plan must be signed by the seller or landlord to confirm the extent of the land.
Over the years a number of presumptions have evolved to provide a guideline on ownership. Although these presumptions can be contradicted by the title deeds themselves, if there is no record as to ownership, the presumptions provide a useful and workable solution to a number of everyday scenarios. The presumptions are summarised below:
Click here to see table.
WHAT HAPPENS IF IT ALL GOES WRONG?
Inevitably, because of the imprecise nature of many boundaries, neighbours may often discover that there is a discrepancy between the physical boundary and the legal boundary and the parties may wish to ensure that what is shown on the title deeds accurately reflects the physical boundary features between the properties.
As noted, the surest way to avoid a boundary dispute is to determine the exact line using the Land Registry’s determined boundary procedure. A boundary agreement is the alternative, cheaper record of what the parties agree.
Where the plan in the original deed which recorded the boundary is later found to be incorrect the Land Registry will allow an error to be corrected if discovered before the deed has been registered. If the error in the original deed is discovered after the land has been registered then the current policy of the Land Registry is to insist on two transfers to “swap” the land rather than altering the extent of the land within a particular title. In the case of leases, the refusal by the Land Registry to amend a demise without adding to or subtracting land from that demise can be particularly problematic.
Although the administrative headache of correcting a boundary may be off-putting, there are salutary lessons to be learnt where a trespass is left un-contended as the trespasser can seek to claim legal ownership of the land. For example, where a fence is erected after the conveyance of the houses and the fence is not on the boundary line as shown in the original conveyance, one party can acquire the other’s land by adverse possession, thus shifting the original boundary line
There are many practical points that surveyors can abide by to reduce boundary disputes. They include adhering to the Land Registry guidelines on plans and using an OS properly scaled map. Land owners should also consider entering into a boundary agreement where the boundary may prove controversial. Care taken will ensure costs saved in the long run and a much clearer answer to the question: whose line is it anyway?