The Conveyancing Team at Bowden Jones Solicitors can advise you in a boundary dispute you may be involved in with the owner of a neighbouring plot of land – but you may wish to take a deep breath and engage in cool reflection before embarking on a legal action where the costs incurred can be quite disproportionate to the actual value of the land concerned. Boundary disputes can arouse passionate personal feelings on both sides of the “line” – which is why it is important to consider what may be some surprising aspects of the law concerning just where the “line” actually lies.
The legal boundary – the actual boundary at which legal ownership changes – may not coincide with what may seem to be the obvious physical boundary at any given location. In registered land, the boundary depicted on the title plan is subject to the “general boundaries rule” – it is not definitive or precise, merely indicative. To discover the actual position of the legal boundary, should a dispute or any other question of ownership arise, it is necessary to refer to the pre-registration conveyances and transfers and any plans annexed to them.
Well established case law provides that in any case where there is uncertainty concerning the legal boundary, the following principles of determination should apply;
- There should be reference to pre-registration deeds and their descriptions of the land in question
- The plans may be referred to, but with the qualification that they may be labelled “for identification purposes only” and thus not able to delineate ownership
- The plans may also be drawn to such a scale that lines on the plan may be too thick to allow for a useful degree of precision
- Descriptions in the conveyance and associated plans may have to be interpreted, in the absence of sufficient precision, with inferences from physical features which existed at the time of the drafting of the conveyance
- Certain legal presumptions and rules can be applied, in the absence of any evidence or agreement that rebuts them. An old example is the “hedge and ditch” principle, in which it is presumed in the absence of evidence to the contrary that where the boundary is marked by a ditch with a hedge growing along one side, the limit of legal ownership runs along the brim of the ditch on the side opposite to the side where the hedge grows. This was because it was presumed that a landowner digging a ditch to mark the boundary of his ownership, would dig up to the limit of his land and throw the excavated soil back onto his own land on the other side of the ditch. This would then form a bank of soil out of which a hedge could grow. It should be noted that there are numerous ways in which this presumption can be rebutted, for instance if it can be shown that the ditch and the hedge did not originally mark any line of ownership at the time of the digging.
It should be noted that an agreed or implicitly understood responsibility for maintenance of boundary features such as hedges or fences is not in itself a definitive indicator of legal ownership.
It can be seen that the determination of a boundary by a court or tribunal will be a protracted and therefore expensive process. In disputes concerning the exact legal boundary between plots of registered land, it is far better if the respective owners can come to an agreement which can be then be registered with the Land Registry. Such an agreement can declare the boundary by reference to an agreed plan and also deal with responsibility for maintenance. If the agreement is filed with the Land Registry, the relevant registered titles will refer to its existence and the agreement will be available for anyone examining the titles.
Alternatively, the boundary can be fixed with greater precision by an application to the Land Registry to declare the boundary in accordance with section 60 of the Land Registration Act 2002. This will involve the plan of the boundary to be determined being filed at the Land Registry, together with supporting evidence, which may include a deed of agreement between the respective parties. The plan which accompanies an application to determine a boundary must be compliant with the requirements of the Land Registry and will therefore almost certainly have to be prepared by a qualified surveyor. The preparation and submission of such an application is not cheap – but is much to be preferred to litigation whose costs will likely overrun any value which can reasonably be attributed to the land in question.