Boundary Disputes – What you need to know
Boundaries are one of the major causes of disputes between neighbours. Whether one neighbour is encroaching on another, there is an argument that the boundary line is in the wrong position or shared boundary is not properly maintained, issues that might start out as trivial can quickly escalate.
Part of the problem arises from the fact that the exact position of a boundary between two properties is often never clearly identified in the legal title. The approximate position is usually indicated but there is sometimes room for argument by perhaps a few feet either way.
Land Registry Filed Plans
Whenever a piece of land is registered with the land registry for the first time they will produce a plan for the land based on the deeds supplied. This is known as the title plan or filed plan. Section 60(1) of the Land Registration Act 2002 tells us however that the boundary shown on this plan is, unless an application to determine the exact boundary has been successfully completed, a general boundary only and it cannot therefore be relied upon as being exact.
Conveyance Plans for Unregistered Land
Where land is unregistered, either the conveyance to the current owner or an earlier conveyance should include both a plan and a description of the land. When the conveyance refers to the plan it will says something along the lines of “1 The High Street, shown for the purposes of identification only edged red on the attached plan”. What this means is that the plan is intended to indicate a general boundary only and not the exact boundary line.
In fact, even where the wording does not indicate that only a general boundary is intended the courts take the view that it is the description, not the plan, defines the extent of the land. The description might read along the lines of the following “An area of land measuring 100 feet by 50 feet, adjoining Old Road to the north and New Road to the East, including the dwellinghouse known as 3 Old Road, Oldtown”. The reasoning is simple; it is easy, particularly for an amateur draughtsman, to make a small error when drawing a plan but clearly if the land is described as being 100 feet by 50 feet then that must have been the intended size.
What the description cannot always do is indicate the precise position of the land.
Is the Boundary Dispute Worth Pursuing?
Before becoming involved in any boundary dispute, you should stop to think rationally about what you are arguing about. Often the land in question will be just a few square feet or a strip of land a few inches wide.
These types of dispute can quickly escalate because it becomes less about the land itself and more a battle of egos, fuelled by the fact that it is difficult for the parties to completely avoid each other. Should the matter end in court, as often happens, it will not only be extremely stressful for both parties but the eventual financial cost is likely to be tens or even hundreds of times the value of the land. In the end the only real winners are often the lawyers.
It is almost inevitable that once solicitors are instructed the relationship between you and your neighbour will be irrevocably damaged which could spoil your enjoyment of the property for years to come. You may gain much more therefore by simply conceding.
Alternative Dispute Resolution (ADR)
If the dispute cannot be resolved via an amicable face to face discussion then, before resorting to the courts, alternative dispute resolution (ADR) should be considered. This will be considerably cheaper and much less adversarial. An expert negotiator will speak to each party individually and attempt to broker an agreement that both parties can be happy with. The negotiator is able to look at the dispute entirely objectively with no emotional involvement and advise accordingly.
Sometimes just explaining the issue to someone who is not personally involved can put it into perspective. The Chartered Institute of Arbitrators offer an ADR service, as do other organisations.
Identifying the Exact Boundary Line
In order to identify the exact boundary line it is necessary to look first at the title deeds. Even where the land is registered and the title doesn’t refer to any old conveyances it is still worth checking to see whether either neighbour has any as they may accurately define the boundary.
In the absence of any evidence from the deeds you must look at surrounding physical features such as walls, fences, hedges and ditches. One particular method, which illustrates this, is known as the “hedge and ditch presumption” and arises from a case where two fields were physically separated by a ditch with a hedge at the side.
The court ruled that the boundary must be at the far side of the ditch, i.e. the opposite side to the hedge. The reasoning used was that a person who dug a ditch must dig it on his own land as it would be an offence to injure his neighbour’s land and the dirt removed must be placed on his own land for the same reason. The court went on to say that it would be reasonable having made a mound of dirt that ran the length of the ditch to plant a hedge, and this is how it decided which neighbour dug the ditch – you would not plant a hedge on your neighbour’s land so both the ditch and the hedge must belong to the same property.
What this case demonstrates is that, in the absence of any other evidence such as a written agreement between the neighbours or their predecessors as to the exact boundary line or some evidence from the deeds then the presence of a physical boundary can be used to determine the legal one.
Presumptions such as the hedge and ditch can be rebutted with evidence. For example if a fence is built by one neighbour who then claims that this must be the boundary because of the fence, but the other neighbour can prove, say by producing old photographs, that the fence has been recently moved and it was previously further back then the courts might not be able to accept the current position of the fence as evidence of the boundary.
Applying to the Land Registry to Determine the Boundary
Although the Land Registry filed plan does not normally define the exact line of the boundary, an application can be made for it to do so. This is known as an application to determine the boundary and is made using form DB.
The rules governing such an application are contained in rules 117 – 121 of the Land Registration Rules 2003. The application must include a plan, or a plan and a verbal description, identifying the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the general position of the boundary to be drawn on the Ordnance Survey map, and evidence to establish the exact line of the boundary.
On receipt of the application, if the registrar is satisfied with the evidence, he must serve notice of it on the proprietors of any land which shares the boundary which is being determined. The notice will expire at 12 noon on the twentieth working day after it is served, though any recipient may apply for an extension provided he does so before the notice expires. An extension will not always be granted.
If an objection is received from a party who has been served notice the registrar is under an obligation to consider this. Unless the objection is clearly groundless it is likely he will cancel the application as it is not the registrar’s place to settle disputes. These must be referred to the adjudicator or to the courts.
If the registrar does not have an address on which to serve notice of the application or if he is not satisfied with any of the evidence he must cancel it, save that where a written agreement between two neighbours as to the exact boundary is produced he need not serve notice on those neighbours.
If the registrar is satisfied with the evidence and if no objections are received he must then complete the application by making a note on the registers of all titles affected of the fact that the boundary has been determined and by adding such particulars that show the exact boundary to the filed plan as he considers appropriate. This may make reference to a further plan.
Transferring Part of Your Land to a Neighbour
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.
(3)Rules may make provision enabling or requiring the exact line of the boundary of a registered estate to be determined and may, in particular, make provision about—
(a)the circumstances in which the exact line of a boundary may or must be determined,
(b)how the exact line of a boundary may be determined,
(c)procedure in relation to applications for determination, and
(d)the recording of the fact of determination in the register or the index maintained under section 68.
(4)Rules under this section must provide for applications for determination to be made to the registrar
117. In this Part, except in rule 121, “boundary” includes part only of a boundary.
Application for the determination of the exact line of a boundary
118. — (1) a proprietor of a registered estate may apply to the registrar for the exact line of the boundary of that registered estate to be determined.
(2) An application under paragraph (1) must be made in Form DB and be accompanied by—
(a)a plan, or a plan and a verbal description, identifying the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the general position of the boundary to be drawn on the Ordnance Survey map, and
(b)evidence to establish the exact line of the boundary.
Procedure on an application for the determination of the exact line of a boundary
119. — (1) where the registrar is satisfied that—
(a)the plan, or plan and verbal description, supplied in accordance with rule 118(2) (a) identifies the exact line of the boundary claimed,
(b)the applicant has shown an arguable case that the exact line of the boundary is in the position shown on the plan, or plan and verbal description, supplied in accordance with rule 118(2)(a), and
(c)he can identify all the owners of the land adjoining the boundary to be determined and has an address at which each owner may be given notice,
he must give the owners of the land adjoining the boundary to be determined (except the applicant) notice of the application to determine the exact line of the boundary and of the effect of paragraph (6).
(2) Where the evidence supplied in accordance with rule 118(2) (b) includes an agreement in writing as to the exact line of the boundary with an owner of the land adjoining the boundary, the registrar need not give notice of the application to that owner.
(3) Subject to paragraph (4), the time fixed by the notice to the owner of the land to object to the application shall be the period ending at 12 noon on the twentieth business day after the date of issue of the notice or such longer period as the registrar may decide before the issue of the notice.
(4) The period set for the notice under paragraph (3) may be extended for a particular recipient of the notice by the registrar following a request by that recipient, received by the registrar before that period has expired, setting out why an extension should be allowed.
(5) If a request is received under paragraph (4) the registrar may, if he considers it appropriate, seek the views of the applicant and if, after considering any such views and all other relevant matters, he is satisfied that a longer period should be allowed he may allow such period as he considers appropriate, whether or not the period is the same as any period requested by the recipient of the notice.
(6) Unless any recipient of the notice objects to the application to determine the exact line of the boundary within the time fixed by the notice (as extended under paragraph (5), if applicable), the registrar must complete the application.
(7) Where the registrar is not satisfied as to paragraph (1) (a), (b) and (c), he must cancel the application.
(8) In this rule, the “owner of the land” means—
(a)a person entitled to apply to be registered as the proprietor of an unregistered legal estate in land under section 3 of the Act,
(b)the proprietor of any registered estate or charge affecting the land, and
(c)if the land is demesne land, Her Majesty.
Completion of application for the exact line of a boundary to be determined
120. — (1) where the registrar completes an application under rule 118, he must—
(a)make an entry in the individual register of the applicant’s registered title and, if appropriate, in the individual register of any superior or inferior registered title, and any registered title affecting the other land adjoining the determined boundary, stating that the exact line of the boundary is determined under section 60 of the Act, and
(b)subject to paragraph (2), add to the title plan of the applicant’s registered title and, if appropriate, to the title plan of any superior or inferior registered title, and any registered title affecting the other land adjoining the determined boundary, such particulars of the exact line of the boundary as he considers appropriate.
(2) Instead of, or as well as, adding particulars of the exact line of the boundary to the title plans mentioned in paragraph (1)(b), the registrar may make an entry in the individual registers mentioned in paragraph (1)(a) referring to any other plan showing the exact line of the boundary.
Relationship between determined and undetermined parts of a boundary
121. Where the exact line of part of the boundary of a registered estate has been determined, the ends of that part of the boundary are not to be treated as determined for the purposes of adjoining parts of the boundary the exact line of which has not been determined.
Determination of the exact line of a boundary without application
122. — (1) this rule applies where—
(a)there is—
(i)a transfer of part of a registered estate in land, or
(ii)the grant of a term of years absolute which is a registrable disposition of part of a registered estate in land,
(b)there is a common boundary, and
(c)there is sufficient information in the disposition to enable the registrar to determine the exact line of the common boundary.
(2) The registrar may determine the exact line of the common boundary and if he does he must—
(a)make an entry in the individual registers of the affected registered titles stating that the exact line of the common boundary is determined under section 60 of the Act, and
(b)subject to paragraph (3), add to the title plan of the disponor’s affected registered title (whether or not the disponor is still the proprietor of that title, or still entitled to be registered as proprietor of that title) and to the title plan of the registered title under which the disposition is being registered, such particulars of the exact line of the common boundary as he considers appropriate.
(3) Instead of, or as well as, adding particulars of the exact line of the common boundary to the title plans mentioned in paragraph (2)(b), the registrar may make an entry in the individual registers of the affected registered titles referring to the description of the common boundary in the disposition.
(4) In this rule—
“common boundary” means any boundary of the land disposed of by a disposition which adjoins land in which the disponor at the date of the disposition had a registered estate in land or of which such disponor was entitled to be registered as proprietor, and
“disposition” means a transfer or grant mentioned in paragraph (1)(a
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