Drawing the line in boundary disputes
To quote Lord Hoffman in the judgment of Wibberley Building Ltd v Insley , “Boundary disputes are a particularly painful form of litigation.” They commonly involve neighbours and what is easily forgotten while the dispute is ongoing is that, even when the dispute is over, everyone involved will still have to live next to each other. With this in mind, there is often no real ‘winner’.
Land Registry title deeds
A common cause of disputes is one party relying too heavily on the Land Registry title plans to determine the position of the legal boundary of their land. What is often not known, however, is that Land Registry title plans are designed to show general land ownership, not legal boundaries: these are governed by the General Boundaries Rule. This is described in section 60 of the Land Registration Act 2002 as: “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.” It also states that “a general boundary does not determine the exact line of the boundary.”
Land Registry title plans are based on plans prepared by the Ordnance Survey and show the boundary in relation to a particular wall, hedge, fence or other feature, although they may not mark the precise position of the boundary. This is particularly the case for residential properties, where the original features plotted on the OS plans may no longer be visible on the ground.
OS plans are also limited in their accuracy, depending on the scale used; a 1:1250 scale plan will only be accurate to a distance of +/- 1.0 metre. Therefore, trying to scale up measurements from Land Registry plans can give misleading information and it is often this inaccuracy that causes people to believe that boundaries are in the wrong place.
The starting point should always be the title deeds; these relate to the property prior to its registration and generally include documents such as conveyances, transfers and abstracts of title. They may also contain descriptions of the land being sold, which can assist in establishing the position of a legal boundary. As well as title deeds and OS plans, photographs (historic and current) and maps can also be useful. You should always take the following points into account when considering the above documents.
1. Conflict between dimensions on a plan and scaled-up measurements
Sometimes, plans will detail dimensions that do not always correlate to measurements obtained by scaling from the plans themselves. The question, then, is how to resolve this conflict. This was addressed in Cook v JD Wetherspoon plc . Here, an OS map from the 1970s at a scale of 1:1250 had been used to create a transfer plan. However, the map actually showed a building that had been demolished at the time of the transfer.
The dispute arose over the extent of the land the defendant seller had retained. The claimant relied on the dimensions on the plan, while the defendant had scaled up from the plan and the difference between the two measurements amounted to 10 feet.
It was held that, where such a conflict occurs, it should be resolved by looking at any inferences that can be drawn from topographical features that existed at the time of the conveyance or transfer.
2. The need for extrinsic evidence
Occasionally, the contents of a deed may conflict with what one of the parties believes was meant to be agreed at the time. In such situations – and in contrast to normal contract law – extrinsic evidence (that is, evidence of the intention of an agreement that is not actually included in the written agreement itself) will sometimes be considered to establish the true intention at the time the deed was created. Generally, the evidence will only be permitted if part of the deed is considered to be unclear on a point or if there are a number of conflicting points. If the court considers the deed to be clear, it is unlikely to allow any additional evidence.
Extrinsic evidence can be physical evidence on the site or information taken from other title deeds, although oral evidence that conflicts with the contents of the deed will never be permitted. Even then, the evidence will only be permitted if it can be shown to be of value in determining the intention of the parties at the time. This was addressed in the case of Liaquat Ali v Robert Lane , which determined that physical features that did not exist at the time the deed was created are very unlikely to be considered, since they are unlikely to have had any bearing on the intentions of the parties at the time.
3. Adverse possession
One point to bear in mind is that the position of a legal boundary can change over time, meaning it may no longer be the same as the one shown on the title deeds. Usually, this would happen through adverse possession, more commonly known as ‘squatters rights’. The law on adverse possession has altered recently to benefit landowners, making it harder to claim land in this way. The new law applies to any period of adverse possession that ended after 13 October 2003. The old rules still apply if the period ended before that time and to claim adverse possession under these rules, you must be able to show that:
- You have dispossessed the paper title owners or they have abandoned the land in question;
- You have occupied the land as if you were the owner;
- You have the necessary intention to possess the land; and
- Your possession lasted more than 12 years prior to 1 October 2003.
If you can satisfy all the above criteria, then you may have automatically obtained the title to the land in question.
Under the new rules, however, you must still satisfy the first three criteria above, but the last point differs in that possession must be at least ten years and you must apply to the Land Registry to take possession of the land.
The big difference, then, is that there is no longer automatic transfer of title and before the ‘squatter’ can claim ownership, an application must be made to the Land Registry, who will notify the owner of the land. If the owner objects to the application then it will generally be rejected.
Can the property boundary line be determined?
Sections 3, 4 and 60 of the Land Registration Act 2002 all deal with determining the position of a legal boundary. This involves making an application to the Land Registry. Once the precise boundary has been determined, the information is then added to the title register.
The process is relatively straightforward; however, notice of any application will be forwarded to all adjoining owners who can raise objections. If they do, then the matter may have to go before the Land Registry Adjudicator.
Ultimately, anyone who believes that there may be an issue with the boundaries of their land should ensure that they have checked all of the information mentioned above before bringing a claim against a neighbour. Thought should also be put into to whether you are fully prepared before commencing any action. As with all litigation, there is never a guarantee of success and, with claims costing in excess of £20,000 to pursue, it is not a matter to be taken lightly. However, the right legal advice should give you an indication of whether your case is worth pursuing.
Lyons Davidson’s Civil Litigation Department can help you with any questions you have about neighbour or boundary disputes. For more information contact Lyons Davidson’s Civil Litigation team by telephoning 0117 904 6000.
Posted on Jan 9th, 2012 by Lyons Davidson