It is often said that an Englishman’s home is his castle. Whilst the days of having the benefit of a moat and drawbridge are now distant memories for most, the importance of preserving one’s property still remains. In particular, resolving boundary disputes can be a tricky business and so it makes sense to get the right advice. To help get you off to a fair start, Sam Hannon, a member of Stephen Scown’s Property Litigation Team, has tackled some of the most common questions regarding the issues surrounding determining boundary lines.
Isn’t the boundary line simply marked by the physical features on the ground?
Not necessarily. A boundary may initially be defined by physical features on the ground, such as a hedge or a wall. However, depending on the nature of those physical features within the boundary, the boundary line could change. For example, the green-fingered amongst us will recall Laurel hedges’ tendency to “walk”. Similarly, boundary walls and fences could fall into disrepair, be removed and/or replaced. It can therefore become very difficult to decipher exactly where the boundary line should be from the physical features alone. There is therefore also what is known as the legal boundary line, namely a hypothetical line separating the two pieces of land.
Surely HM Land Registry will know where the boundary line should be?
Unfortunately this is again not always the case. Unless the property in question has a description along the lines of being, “more particularly described in the plan,” and/or there is reference to a boundary agreement, the Land Registry plans attached to your registered title will show only general boundaries, not the precise line of the boundary. Ordnance survey plans are also usually no more than a general guide to a boundary line.
The most conclusive way to resolve the issue is therefore likely to be via examination of the wording and plans within the pre-registration deeds in respect of the properties either side of the boundary. This is particularly if either of the properties are yet to be registered with HM Land Registry. However, such documents may not be available and/or may not provide sufficient clarification.
If the pre-registration deeds do not clarify matters, other evidence that could assist may be the examination of the physical features on the land, together with historical photos, witnesses’ recollections, and parties’ conduct regarding the boundary.
Even if a boundary line is defined by a conveyance, other evidence may be used to demonstrate that the boundary line is now in another location, such as by way of an “adverse possession” claim.
The determination of a boundary can be a complex exercise. Unless the documents in question are clear, it is likely that the above mentioned investigations will require the assistance of a boundary expert, such as a surveyor and/or a specialist solicitor to interpret and provide their opinion as to the boundary position.
How can two neighbours resolve the issue of determining the boundary line between them?
The most economical way forward is usually for the respective property owners to reach an agreement regarding the boundary position, such as by way of mediation. The agreement should be recorded in writing by way of a deed, and be registered with HM Land Registry. This should also have a plan attached clearly illustrating the agreed position of the boundary, preferably one that was prepared by a surveyor. Such steps should minimise the risk of a similar dispute arising in the future.
Sadly, however, it is not always possible for agreement to be reached. If this occurs then court proceedings could be issued for a Judge to declare the position of the boundary based upon the evidence available. However, court action should not be considered lightly since it can be an expensive and risky process.
What is adverse possession?
This another route by which the position of a boundary line may change. It is the process where a person who is not the legal owner of land can become the legal owner by possessing that land for a period of time set by law.
A common example is where Person A has always believed they own a section of land (e.g. at the end of their garden, perhaps because the boundary was not fenced) and they therefore always treated it as their own. If it later transpires that the land in question belongs to Person B, Person A may be found to have obtained ownership of it by virtue of their adverse possession. However, Person A would need to make an application to HM Land Registry, demonstrating certain criteria to successfully acquire the land in this way. This includes factors such as exclusive possession of the land from Person B, the lack of Person B’s consent to the possession, and such actions having taken place over the requisite period of time, the latter depending on whether the land in question is registered or unregistered.
What can be done to minimise the risk of an adverse possession claim being accepted?
If your land is currently unregistered then you should register any unregistered land with HM Land Registry as soon as possible. This will ensure that you fall under the new 2002 regime which is weighted in favour of the owner of the land.
You should also ensure that HM Land Registry have your current contact details so that you can be notified if anyone makes an application in relation to your land.
The other step is of course for you to regularly inspect your property boundaries and, if any potential boundary issues arise, seek legal advice at the earliest opportunity. You should then be aware of the options available to enable you to try and resolve the dispute as economically, expeditiously and amicably as possible.
Our experienced team of property dispute resolution lawyers can steer you through these complicated issues. They can offer constructive and creative advice to help resolve any dispute you have over the boundaries of property. You can contact us on 01392 210700 or via email at email@example.com.