Unfortunately, disputes over the positions of boundaries are very common-and are far more common between residential owners than between commercial landowners. They tend to be extremely emotive, and have in extreme cases led to harassment, or even actual violence. As a result, it is often extremely difficult to resolve a boundary dispute successfully unless the right approach is adopted.
This article is intended to give a brief overview of how these disputes arise, and how they can be resolved quickly and cost-effectively.
How boundaries are defined
Firstly, a couple of definitions. A boundary marks the extent of the legal ownership of a piece of land. It is a purely legal construct, in other words. In contrast, a boundary feature is a real, physical property of the land that marks the boundary, such as a fence, a wall or a hedge.
Real property in England and Wales is transferred between owners by way of a formal transfer document. This used to be called a conveyance, which was a fairly complex document and summarised the chain of title (ie how the seller came to own it), defined what the property being transferred was (either just in words or sometimes also by reference to a plan), what rights were being transferred in addition (e.g. rights of way over other properties), and what rights the property was subject to. The price paid was also stated together with any other relevant matters such as covenants made by the buyer or the seller.
For many years now, this system has been replaced by the Land Registration system, where the information which was contained in the conveyance is now summarised in a standard document called a transfer; a standard plan is also attached, which is derived from and coordinates with the Ordnance Survey map. The property is again defined by words (e.g. the address of the property or simply “land at Greenacres etc”), and by reference to the plan (ie “the land edged red”). The transfer is lodged with the Land Registry, which has offices across England and Wales (the system is different in Scotland). The information contained on the transfer and the plan is entered onto the Land Registry computer system, which generates a summary of this information known as an “office copy” and Land Registry plan, and can be accessed remotely. Each property transferred in this way is allocated a unique Land Registry title number.
A similar system applies to the transfer of ownership of long leases-but bear in mind that tenants cannot bring boundary dispute claims, only the owners of freehold land can do so.
how do boundary disputes come about?
So far so good; so how can boundary disputes arise if everything is computerised? There is a well-known phrase in IT called “garbage in garbage out”-in other words, the information held by the Land Registry is only as good as the information it receives. For instance, the information and the plan that is submitted by the parties with the transfer may not be accurate-ideally it should be surveyed but few people are willing to pay for this.
The Land Registry recognised long ago that it could not precisely define boundaries, and indeed this is reflected n the Land Registration Act 2002: this Act defines the registered boundary like this:
(1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section.
(2) A general boundary does not determine the exact line of the boundary.”
There cannot be any gaps between adjacent properties, as this would mean that no-one owned it-so the Land Registry ensures that the boundary of adjacent properties butt up against each other. There is a certain amount of latitude in the Land Registry plan for this reason. The red line around a plot shown on a Land Registry plan drawn to a scale of 1:2500 is approximately 1 mm wide, but when scaled up this is equivalent to a width on the ground of 2.5 m. The same degree of uncertainty exists in the red line around the adjacent property, so there is potentially an error of up to 2.5 m in the position of the joint boundary on either side of the centre line. As many disputes involve arguments over distances much smaller than this, it’s easy to see how the Land Registry plan is often of little use.
So where is the boundary? To find out, all of the evidence needs to be examined, including evidence held by the opponent. Useful documentary material may include pre-registration documents such as old conveyances, aerial photographs, and ground-level photographs if they are relevant. Old planning applications can also be useful as can evidence from present and previous occupants and neighbours of the property.
The role of the expert surveyor
Often however features on the ground need to be examined-for instance old post and wire fences often mark the boundary on estate developments. A common problem is presented when the boundary was marked with a hedge, as over time natural growth obscures the boundary line. Often the best that can be done is to plot the centre of each rootstock. This type of examination needs to be done by a surveyor, often with a laser theodolite, who can then plot the features on the ground onto a large-scale plan. The surveyor can also plot the Land Registry plan and any other plans that might be available. It is preferable to have the surveyor instructed by both sides to the dispute; the cost is shared equally, the surveyor can see both sides’ documents, and the report will be binding on both sides.
who owns the boundary features?
A question which is often overlooked is who owns any boundary features, such as a garden wall. Either one adjoining owner or the other will be the owner, or potentially both (ie joint ownership). Often this is defined on a plan by so-called “T marks” (the head of the T points to the owner), and if ownership is joint there are T marks on both sides forming an “H”. If there is no evidence of ownership, it will be presumed that it is a joint boundary.
With ownership goes responsibility of course-the owner of a feature is obliged to maintain it. If ownership is joint, then each owner is responsible, and if one spends money on maintenance they are entitled to an equal contribution from the other provided the expenditure is reasonable. However joint ownership also means that neither can undertake works to the feature without the other’s consent-e.g. demolition-except in cases of emergency or non-cooperation.
negotiation or court action?
Once you have your evidence, what are your choices? Court proceedings should be the last option-it is expensive, slow and may well not produce a result you wish for. Negotiation is by far the best alternative, and mediation schemes are run by surveyors and courts across the country. Bear in mind that you will almost certainly be living next to your neighbour for some time, at least in the short term; a mediated agreement rather than a Court-imposed judgment is likely to be much more successful in reducing the tension between two neighbours at war with each other. Another factor to bear in mind is that a boundary dispute must be disclosed to a potential buyer if you wish to sell the property, and is likely to be very off-putting to most purchasers.You should bear in mind that the Court will expect you to have at least attempted negotiation before issuing proceedings. If you do not, you may not get your costs even if you win.
Sometimes, unfortunately, it is not possible to negotiate, and Court action is needed. The Court can be asked for a variety of remedies but commonly a Claimant will ask the Court for
- A declaration as to the position of the boundary
- Damages to be awarded for trespass or physical damage to the land
- An injunction to compel the Defendant to do an act such as removing an encroachment or blockage, or refrain from an act such as damaging a roadway
Before proceedings are issued it will be necessary to have all relevant documents available, as well as a surveyors report in most cases. A barrister would normally be instructed to draft the Particulars of Claim that are submitted to Court and which set out your case, and a fee is payable also (the amount depends on what you are seeking from the Court and how much damages you are claiming). If a defence is filed a further Court fee is payable, and the Court will then give directions for trial. There is an article about how the claim progresses through the Court here.
Legal expenses insurance
A defended boundary dispute may well take a year or more to get to trial, and legal costs can easily exceed £10,000. It is therefore very important to find out if you have a legal expenses policy that might cover these costs-see here for further details.
For more information contact David Vaughan-Birch.