Simon Brilliant considers basic issues arising in boundary disputes
There are few disputes that are more stressful for the parties than a boundary dispute. They generate intense animosity and frequently the costs of each side greatly exceed the value of the land. Even when the case is concluded, the parties still have to live next door to each other. As Lord Hoffmann famously said in Alan Wibberley Building Ltd v Insley [1999] 2 EGLR 89, “Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras’s army.”
What is a boundary?
It is important to distinguish between a legal boundary and a physical boundary. A legal boundary is an imaginary, invisible line of no thickness that divides two adjoining properties. It is not usually identified precisely on the ground or in the documents created when a property changes hands. In the case of unregistered land, such a document will be a conveyance. In the case of registered land, or land being registered for the first time, such a document will be a transfer.
A physical boundary is a feature such as a wall, fence or hedge which may, or may not, follow the same line as the legal boundary. A previous owner of a semi-detached house may have chosen many years ago to have erected a fence in his rear garden a metre or two within the boundary line. This does not make the fence line the legal boundary (unless in the case of unregistered land the neighbour has gone into possession of the metre or two beyond the fence and acquired title to it by adverse possession).
Ordnance Survey, which is the national mapping agency of Great Britain, produces maps that show physical features on the ground at the time of the survey. The Ordnance Survey maps, the basis of Land Registry plans, do not show legal boundaries. Moreover, Ordnance Survey maps only provide a relative accuracy and cannot be used to provide precise scaled measurements of what is actually on the ground.
General boundaries
Every registered title has to contain a title plan that is based on the Ordnance Survey map. The title plan (which used to be known as the “filed plan”) supports the property description in the register. By convention the boundary of the registered land is coloured red and the boundary of any land removed from the title is coloured green.
Contrary to the belief of many people caught up in these disputes, the vast majority of title plans do not show the precise legal boundary, but only what is known as a “general boundary”. The red line on the title plan cannot therefore be taken as showing the legal boundary, although many a lay client will persist, even up to the hearing itself, in pointing to the position of the line as justification for the stance he or she has taken. An exception to the general boundary rule is where Land Registry has been asked to determine a boundary under section 60(3) of the Land Registration Act 2002 (the “2002 Act”) (see below).
Recent cases show that a considerable area of land can fall within the general boundary rule and that it will sometimes be appropriate to alter the title plan under the powers in schedule 4 to the 2002 Act to show a more accurate but still general boundary: Derbyshire County Council v Fallon [2007] EWHC 1326; [2007] 3 EGLR 44 and Drake v Fripp [2012] 1 P&CR 69.
The dividing conveyance or transfer
Since the title plan does not provide an easy answer as to where the legal boundary lies, there is surprisingly little difference in principle between registered and unregistered land when it comes to boundary disputes. The key to unlocking the problem is to find the conveyance or transfer that first divided the two properties. In the case of adjoining plots on a development, both properties are likely to have been sold off at around the same time. It will be the first conveyance or transfer in time which matters as the second one could not dispose of land already sold off. In practice, dealing with registered land can be more complicated because historic documents of title may have been destroyed following registration.
Once the conveyance or transfer that first divided the two properties has been located, it has to be construed in order to ascertain its true meaning. This is where the lawyers and surveyors come in. The underlying aim is to ascertain the intention of the parties to the relevant document.
The place in a conveyance that describes the land being disposed of is called the “parcels clause”. There will be a written description of the land. This may take one or more of many forms, including a description by name, by measurement, by reference to a field or plot number or by reference to a plan. In a transfer, the property being transferred is described in panel 2 of the current Land Registry form TR1.
If the title documents and plans are not sufficiently clear to the reasonable layman who is standing at the property trying to find the boundary with the plan is his hands, the court will take into account the topographical features at the relevant date. However, the parties’ subjective beliefs as to the position of the boundary are not admissible. Where evidence of subsequent conveyances or conduct is probative of the intention of the parties to the relevant conveyance, such conveyances or conduct is admissible. For example, a plan may be ambiguous as to where one side of the boundary is to be positioned, but the purchaser covenanted to fence off that side of the boundary. If a fence was erected on a particular line by the purchaser shortly after the sale without objection by the seller, that is cogent evidence of where the boundary is.
There have been a number of recent cases setting out these principles. Reference may most usefully be had to the Court of Appeal decisions in Ali v Lane [2007] EWCA Civ 1532; [2007] 1 EGLR 71, Pennock v Hodgson [2010] EWCA Civ 873; [2010] PLSCS 223 and Strachey v Ramage [2008] EWCA Civ 384; [2008] 2 P&CR 152.
Presumptions
Where there is a general boundary, there are a number of instances where rebuttable presumptions may come into play. These include where the soil of a road abuts a property (the boundary is the middle line), where properties are divided by a hedge and artificial ditch (the boundary is the edge of the ditch furthest from the hedge) and where the eaves and foundations extend beyond the drawn boundary line (the eaves and foundations are within the boundary but not the airspace between).
Determined boundary and boundary agreements
Instead of issuing court proceedings, a party may apply to Land Registry for a determined boundary. Such an application has to be accompanied by a detailed professional plan accurate to 10mm. Useful guidance is to be found in Land Registry’s Practice Guide 40, Supplement 4. If the neighbouring property owner objects to the application, the dispute will be referred to a judge of the Property Chamber of the First-tier Tribunal. There is an advantage in having a specialist judge who enjoys this type of work.
By contrast, a boundary agreement is a voluntary agreement reached between neighbours establishing where the legal boundary is. The Land Registry will register the agreement with the respective titles, but the boundary will remain a general one.
Site visit and plans
An early site visit is always to be recommended, as no amount of photographs or plans can be a substitute for seeing the land itself. An agreed plan, preferably on a scale of 1:200, showing the relevant physical features and the position of the boundaries on the title plans and on the conveyances or transfers in different colours is strongly recommended.
Adverse possession
Adverse possession continues to play a part in disputes involving unregistered land, as in the example given above where a fence is erected within the legal boundary. But in the case of registered land it now plays a smaller part. The party will need to show that he reasonably but mistakenly believed that he was the owner of the adjacent land: see paragraph 5(4) of Schedule 6 to the 2002 Act.
Why this matters
Boundary disputes are so bitter, expensive and time-consuming that concern has been expressed by both the courts and the government. Any time such a case reaches the Court of Appeal the judges express their dismay at the failure of the parties to have reached a settlement. As Stanley Burnton LJ said in Gilks v Hodson [2015] EWCA Civ 5: “This is a depressingly unfortunate dispute between neighbours. The costs so far approach £500m, far more than the value of the rights involved. It is a dispute that could and should have been compromised on terms that both parties could live with. The trial took 10 days, and even then some issues, referred to by the judge at paragraph 2 of his judgment, were left undecided.”
In 2012, Charlie Elphicke, a backbench MP, introduced a private members’ bill – Property Boundaries (Resolution of Disputes) Bill – in the House of Commons. This proposed a model based on the Party Wall etc Act 1996. At the beginning of the dispute each party would be required to appoint a surveyor. The surveyors would either come to an agreement as to where the boundary was or a third, independently appointed, surveyor would decide as an arbitrator, subject to an appeal to the county court.
The Bill did not progress but, in the light of the concerns raised, the Ministry of Justice decided to carry out an initial scoping study into the problems of boundary dispute resolution with a view to identifying possible solutions. The study was published in January 2015. The study did not consider that there is currently any adequate justification for the imposition of a solution based on the 1996 Act. It was felt that a surveyor is not in a position to give a ruling that is conclusive in legal terms and would not necessarily have the legal expertise to deal with the more complex legal issues, such as adverse possession.
The study recognised that the reason why boundaries are disputed may lie as much in the personalities of the neighbours as their legal history and the law. It was desirable to dispose of cases more economically and efficiently, but there was no consensus as to how those improvements might be reached. The further use of mediation was suggested, which is a step in the right direction.
Further reading
Land Registry’s Practice Guide 40, including supplements 1-5.
Simon Brilliant is a barrister at Lamb Chambers and a judge of the Property Chamber of the First-tier Tribunal
