It seems self-evident that property owners need to understand the physical extent of what they own: the size of the land and the location of the boundaries.
Any prospective purchaser or tenant wants to know how much land they can occupy and/or develop. They will also want to be sure that the property enjoys direct access to the public highway, without any possibility of a ransom strip.
If the property is one of the titles registered at the Land Registry (now more than 23m), then many people assume that they will know exactly what they own (or are buying), because it is neatly edged in red on the Land Registry title plan. However, the red line on the Land Registry title plan is not definitive; in fact, it does not even attempt to define the precise legal boundary of a property.
General boundaries
Since title plans are generally plotted on an Ordnance Survey map to a scale of 1:1250 in urban areas and 1:2500 in rural areas, it would be virtually impossible for the Land Registry to routinely define title boundaries with precision; the scale does not allow the level of detail.
Land registration therefore embraced the principle of “general boundaries”. Section 60 of the Land Registration Act 2002 (the 2002 Act) states:
“The boundary of a registered estate as shown for the purposes of the register is a general boundary A general boundary does not determine the exact line of the boundary.”
The predecessor to this, rule 278 of the Land Registration Rules 1925, provided:
“The exact line of the boundary shall be left undetermined – as, for instance, whether it includes a hedge or wall or ditch, or runs along the centre of a wall or fence, or its inner and outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream.”
Interpretation
Following this, it might be natural to assume that the red line on the title plan confirms which feature marks the boundary of the property, but just isn’t conclusive as to whether the property includes part or all of that boundary feature.
However, the Land Registry and the courts have adopted a much wider interpretation of the general boundaries rule.
The recent case of Drake v Fripp [2011] EWCA Civ 1279 involved two properties in Wadebridge, Cornwall, which had originally been in the common ownership of Mr Bolesworth.
In 1996, he sold off one part of his property, Higher Tregawne Land, which was duly registered at the Land Registry by the purchasers. Mr Bolesworth retained the remaining part of the property, known as Hustyn Park, before selling it in 2001.
A dispute subsequently arose as to whether the correct boundary separating the properties was the post-and-wire fence, or the Cornish hedge which ran roughly parallel to the fence a few metres apart. A Cornish hedge comprises a stone or slate wall which is filled in with earth and grassed or planted on top. The Land Registry title plans showed the Cornish hedge as the boundary, placing the disputed land within Higher Tregawne Land.
However, the Land Registry adjudicator, the High Court and ultimately the Court of Appeal all agreed that the true legal boundary was in fact the post-and-wire fence. This was largely based on their interpretation of the 1996 transfer and, in particular, a covenant to maintain that fence in stock proof condition. And, because of the general boundaries rule, the red line on the title plan could be moved to show the post-and-wire fence as the boundary.
Adverse possession
Nevertheless, when a registered proprietor is faced with a claim to redraw the general boundary on the title plan, this does not necessarily mean that they will have to vacate land which are they occupying.
The law of England and Wales recognises the principle of “adverse possession”, through which a landowner may ultimately lose their land if they take no action to recover possession from a “squatter”. A landowner might therefore successfully convince a court that the general boundary is in the wrong position, but might still be unable to recover possession of that land.
In Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch); [2007] 43 EGLR 44, the Land Registry adjudicator agreed with the council that Mr and Mrs Fallon’s registered title incorrectly included part of the council’s adjoining land and that the required alteration of the title plan fell within the scope of the general boundaries rule.
However, he still refused the council’s application to redraw the general boundary because it seemed unlikely, on the facts of the case, that the council would be able to recover possession of the disputed land from Mr and Mrs Fallon.
The High Court agreed that it is permissible in principle to replace one general boundary with another, but not where this would serve “no useful purpose”. The judge criticised the council for applying to the Land Registry adjudicator to redraw the general boundary, rather than commencing court proceedings to seek possession of the disputed land.
Reasonable belief
The 2002 Act changed the adverse possession rules for registered land. Prior to this, 12 years adverse possession was required and from October 2003 that was reduced to 10 years for registered land, although the registered proprietor then has two years to recover possession before losing the land.
This generally makes it much harder to claim adverse possession of registered land, although there are three limited exceptions where the registered proprietor does not get the opportunity to recover possession. One of those exceptions is where the “squatter” is in possession of land adjoining their own in the mistaken, but reasonable, belief that they own it.
It is noteworthy that in two recent decisions the Court of Appeal has been quick to conclude that the squatter’s belief was reasonable: Zarb v Parry [2011] EWCA Civ 1306; [2012] 1 EGLR 1 and IAM Group plc v Chowdrey [2012] EWCA Civ 505. In the latter case the Court of Appeal agreed that Mr Chowdrey’s belief that he owned part of an adjoining property in Peckham was reasonable, notwithstanding that the true position was apparent from documents noted on the registered title and that his solicitors would undoubtedly have known the true position when Mr Chowdrey acquired his property.
Conclusion
Boundaries are a complicated and often contentious issue. Landowners need to appreciate the general boundaries rule – the red line on the Land Registry title plan is not conclusive and may be altered.
While the practical reason for the rule is perfectly understandable and reasonable, its application goes far beyond a few inches here and there, or whether the boundary includes the whole or part of the apparent boundary feature. The whole principle of land registration as a “one-stop shop” is undermined to some extent if something as fundamental as the physical extent of the property is not guaranteed.
Since Land Registry title plans cannot be relied on, traditional title deeds retain their significance and will be used by the courts to establish the boundary. Banks should re-assess their practice of requesting solicitors to destroy pre-registration title deeds once a property has been registered at the Land Registry.
However, establishing the precise legal boundary from historic title deeds is notoriously difficult, and even that may not be the end of the story where adverse possession applies. If certainty is required, landowners should consider entering into a boundary agreement with the neighbouring landowner, or invoking the provisions within the 2002 Act for the precise boundary to be “determined”.
Why this matters
The significance of the general boundaries rule is that, as a result of the boundaries not being guaranteed, moving the red line on the title plan is not considered to prejudicially affect the title of the registered proprietor. Since the title plan never defined the legal boundary, altering the red line to include less land does not deprive them of anything.
If the alteration is not prejudicial, then it does not constitute “rectification”, the rules on which can be found in schedule 4 to the 2002 Act. Taking boundary matters outside of the rectification rules therefore means that the boundary can be moved on the title plan even if the proprietor is in possession of the property (subject to any arguments over adverse possession). It also removes the possibility of compensation.
Accordingly, in Drake, the “loss” of 1.5 acres from Higher Tregawne Land’s registered title was not considered to be prejudicial, denying the registered proprietor the protection of the “proprietor in possession” defence, which would have been available if the neighbour had to apply instead for rectification of the title.
Moreover, Drake is not an isolated case. It is, for example, entirely consistent with another Court of Appeal decision from 2008, Strachey v Ramage [2008] EWCA Civ 384, in which a significant area was removed from a registered title when the red line was moved to reflect the court’s interpretation of the true legal boundary, based on the title deeds and the position on the ground.
As long ago as 1957, in Lee v Barrey [1957] Ch 251, the boundary of land containing a house in Middlesex was moved 10ft under the general boundaries rule, even though the frontage had only been 42ft to start with.
This flexibility surrounding the red line is reinforced by Land Registry Practice Guide 39 Rectification and indemnity, which confirms that: “The removal of land from a title will not be regarded as prejudicial if it is to show the general boundary in a more accurate position.”
Further reading
Land Registry Practice Guides:
4 Adverse possession of registered land
39 Rectification and indemnity
40 Land Registry plans
See www.landregistry.gov.uk/professional/guides
Bill Chandler is a professional support lawyer at Hill Dickinson LLP
