Boundary dispute and adverse possession
A boundary dispute can be notoriously acrimonious, with parties arguing over very small pieces of land at great cost. Where do we start when establishing the position of the boundary between two parcels of land and how does the court deal with such claims?
HM Land Registry holds information about all land registered in the UK, in the form of a title register and title plan. However, the red outline on a title plan shows only the general position of a boundary line and not the precise location of a boundary (section 60 of the Land Registration Act 2002).
Boundary dispute over property boundaries
The legal boundary to land is an imaginary line on the ground of a hair’s width. Usually, the actual position of a boundary is not important to neighbours, as they are happy to treat a physical feature (such as a fence or hedge) as the boundary. If they fall out or, for example, a hedge or fence is removed by one neighbour, where the actual boundary on the ground is becomes important and that is where a boundary dispute between neighbours can easily arise. The court can be asked to establish exactly where on the ground a boundary line is, by a judge making a declaration.
The starting point when ascertaining the position of a legal boundary is to go to the historic deeds, if they are available, which is not always the case as often they have been lost or destroyed. At some point in history, the land will have been owned by one single person or entity, such as a developer. It is when part of that land is sold off that the legal boundary is created. Therefore, the key document when establishing a boundary is the transfer deed that originally divided the land, which would usually have a plan attached to it. Subsequent transfers and plans may be a useful indication of where the boundary might be but they are not the best evidence.
The wording in the transfer needs to be considered because sometimes it expressly says that the plan is “for identification purposes only”. However, the judge is likely to use this plan to establish where the legal boundary is, along with considering physical features on the ground: he or she might visit the site on the morning of a trial to get a better understanding of the layout and physical features.
A land surveyor’s opinion of where a line on a plan appears on the ground can be useful and often (but not always) the court can require a report from a surveyor. However, the judge is not bound to follow an opinion given by a surveyor but can be guided by it.
Legal boundaries can only move in certain limited circumstances, such as by agreement between neighbours or by virtue of ‘adverse possession’. Adverse possession is where a person’s land is acquired by someone else (a ‘squatter’) based on a period of long occupation.
In order to show that land has been acquired by adverse possession, there must have been factual possession of the land, an intention to possess and possession without the owner’s consent. This must have been true for a period of at least 12 years prior to 2002. The law changed on 13 October 2003, which made it more difficult to acquire land by adverse possession and the period of time needed was shortened to ten years.
When dealing with arguments as to where the legal boundary is on the ground, adverse possession is often raised to justify a shift in the original line of the boundary.
If you are involved in a boundary dispute, or if you would like more information on any of the issues raised in this article or on property disputes in general, please contact Philip Bagley in our Property disputes team by emailing [email protected] or calling 0113 368 7818.
Posted on Jul 7th, 2020 by Lyons Davidson