Boundary Disputes: The Most Common Property Law Nightmare

Boundary disputes often arise from seemingly minor issues: the position of a fence, the line of a hedge, or the footprint of a new structure. Despite their modest beginnings, these disputes can escalate quickly, particularly given the feeling of intrusion to one's property which can follow. A boundary dispute can be territorial, positional, functional or resource based. The boundaries define where one person’s land ends and another’s begins; it establishes who is subject to the rights and liabilities attached to the land. In a general sense, the legal owner has the right to exclude others from their property as well. The framework which applies to these types of disputes can also muddy the waters. As will be seen below, a mix of common law principles, statutory frameworks, registered title rules, and equity governs how such disputes are analysed and resolved.

This article will explore the legal framework and key case law which is applicable to boundary disputes, before highlighting the common issues which may arise in practice. It will conclude with analysis of those common issues and legal principles. The article does not propose to be a complete work on the law relating to boundary disputes. There are specific legal presumptions on boundaries relating to roadways, hedges/ditches, lakes and the seashore, as well as discussions on boundary agreements (although this will be the subject of a future post), which are not covered in this article owing to brevity.

The issue of adverse possession also often overlaps with boundary disputes. This has been discussed in a previous blog post which can be found here. This post should not be intended to be legal advice and should not be construed as such; it is for information and educational purposes only and therefore readers are always strongly encouraged to seek professional legal advice for their own matters.

One important principle which runs through this area of law is the general boundaries rule under the Land Registration Act 2002 ('the 2002 Act'). The rule can be explained as follows: registered title plans show the “general” boundaries of a property only. Therefore, they are indicative at best and are not definitive evidence of the precise legal line of ownership. Indeed, in such cases, the Court will often determine the correct boundary by looking beyond the registered title plan at things such as deeds, historic use, fences or walls, and other "extrinsic evidence".

Statutory Law

The most important piece of legislation in terms of boundary disputes is the 2002 Act. Section 60 of the 2002 Act provides that a boundary of a registered estate as shown for the purposes of the register is a general boundary unless it has been determined under the same provision. In those cases, it is then a fixed boundary. There is a difference between the two; the latter is a determination of the former.

Fixed boundaries fall under the remit of section 60(3) of the 2002 Act. Section 60(3) outlines that rules can be made to determine the boundary of a registered estate. Those rules can also make provision for: the circumstances in which the exact boundary line may or must be determined, how the exact boundary line may be determined, the procedure in relation to applications for determination, and the recording in the register or the index of the fact that a boundary line has been determined. Parliament has created the Land Registration Rules 2003 ('the 2003 Rules') pursuant to this section.

The relevant Rules for the purposes of boundary disputes are found in Rules 117 - 121. Of particular note, an application to assess and fix a boundary is made pursuant to Rule 118 of the 2003 Rules. Under Rule 118, an application to determine the boundary of the registered estate must be accompanied by a plan (or a plan and a verbal description) which identifies the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the position of the boundary to be drawn on the OS map. There must also be evidence to establish the exact boundary line. Landmarks on or around the boundary line will likely to be of great assistance in such cases.

The procedure for determining the exact boundary line is found in Rule 119 of the 2003 Rules. In essence, the application is reviewed before it is sent to the owner of the other property. The registrar will need to be satisfied of the following (and if any of them are not satisfied, the application must be dismissed):

• The plan, or the plan and verbal description, identify the exact boundary line claimed.

  
  

• The applicant has shown an arguable case that the exact boundary line is in the position shown on the plan, or plan and verbal description supplied.

  
  

• The registrar 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.

Objections (if any) will then be heard by the owners of the neighbouring land. The matter will then need to be determined. Once a final decision has been made, and assuming that the registrar takes the view that the application succeeds, the registrar must then make an entry stating that the exact boundary line has been determined under section 60 of the 2002 Act and add this to the individual register of the applicant's registered title.

Case Law

A very useful summary of the principles applied to boundary disputes was set out by the High Court in the matter of Acco Properties Ltd v Severn [2011] EWHC 1362 (Ch) at [11] of that decision. In summary, the following can be distilled:

• The registered title filed plans usually show general boundaries rather than the exact boundary line.

  
  

• Ordnance Survey (OS) plans are usually only a general guide to boundary features and should not be scaled up to delineate an exact boundary.

• The starting point for the Court is the wording of the conveyance and the conveyance plan, or, if the plan is stated to be definitive, guided by the plan. If the conveyance is not clear then extrinsic evidence may be considered, for example, features which existed at the date of the conveyance.

• Evidence of the parties' subsequent conduct may be relevant and admissible if it reveals what the parties intended.

  
  

• Evidence of features after the date of the conveyance may be relevant.

• The boundary needs to be clear rather than "fuzzy at the edges". Even if the boundary is clear from the conveyance, other evidence may show a different boundary as a result of adverse possession.

• An informal boundary agreement need not be in writing as it demarcates an unclear boundary rather than operating to transfer an interest in land.

  
  

• Boundary agreements are usually oral, but can be inferred or implied.

  
  

• The Court should have regard to what a reasonable layman would think that he was buying.

Important Documents

• The title deeds will, more often than not, be the primary source for establishing the boundary line. The conveyance or transfer should ensure that there is a well-defined parcels clause which provides sufficient clarity and description of the extent of the land.

  
  

• If there are errors in the description provided, the correct part can be read alone and the incorrect part rejected. It does not matter in which part of the description the error occurs; there is no rule that confines the principle to errors at the end of the description.

• The matter of Cook v JD Wetherspoon Plc [2006] EWCA Civ 330 addressed the issue where dimensions on a plan conflict with the measurements scaled from it. The Court of Appeal held that there can be no general rule that a dimension cited on a plan might be, or might not be, more accurate than a line on a plan and measurements scaled from it. Where there is a conflict, this should be resolved by reference to extrinsic evidence, such as inferences drawn from topographical feature.

  
  

• What happens if the description provided and the plan contradict each other? This is where the conveyance document is crucial; the parcels clause will often refer to a plan. The natural inference in this situation is that the plan will enable the person reading the conveyance to see what land passed by that deed (AJ Dunning (Shop fitters) Ltd v Sykes and Son (Poole) Ltd [1987] Ch 287).

• Alternatively, an OS map could be used; the boundary line in relation to boundary features (for example, hedge, fence or wall) is taken to mark the centre line of the boundary feature. Where parties have taken a plan based on an OS map as the basis for a conveyance or transfer of registered land, the OS map rules will usually prevail.

• Contract law principles need to be considered. In contract law, the usual rule is that extrinsic evidence is not admissible when considering the construction of a written contract. The intentions of the parties must be ascertained from the words they have used: L Schuler AG v Wickman Machine Tools Sales Limited [1974] AC 235. If the position of a property boundary line is clear from the title deeds, but the boundary line is disputed, extrinsic evidence will not be admissible.

  
  

• However, where there are two (or more) descriptions of the parcels, none of which is clear, there is no particular rule of construction. The Court will be tasked with ascertaining the parties' true intentions. Ordinarily, this should be done from the written instrument, but extrinsic evidence may be admitted where the description of the land and the boundaries is too general, contradictory, uncertain or ambiguous to identify the correct boundary lines: Lyle v Richards (1866) L.R. 1 H.L. 222.

• Whether the position of boundaries is sufficiently clear so as to prohibit the admission of extrinsic evidence will be a fact-sensitive approach. Therefore, each matter will be judged on the merits of its own case.

  
  

• If extrinsic evidence is permitted, it must always be of probative value in determining what the original parties intended. Things such as maps, statutory declarations, planning permissions, abstracts of title, particulars of sale at an auction and physical evidence on site will often be useful. The weight to be attached to them, however, will depend on the case in question.

• Alan Wibberley Building Ltd v Insley [1999] UKHL 15 provides an excellent modern authority on the construction of parcels clauses. In summary:

  
  

  • The first resort in a boundary dispute will be the deeds.

    
    

  • The parcels clause of a conveyance or transfer may refer to an attached plan, but usually this is said to be "for the purposes of identification only". The use of such words indicates that the plan cannot be relied upon as delineating the precise boundaries.

    
    

  • In any case, the scale of the plan in a conveyance or transfer is often so small, and the lines shown on it so thick, that the plan is useless for any purpose other than general identification of the land.

    
    

  • It follows that, if someone has to establish an exact boundary, a conveyance or transfer will almost invariably have to be supplemented by inferences drawn from topographical features that existed (or may be supposed to have existed) at the time that the deed was executed, or from other evidence.

    
    

  • There are certain presumptions that assist the inferences that may be drawn from such topographical features.

Practical Considerations & Arising Issues

• Unclear boundaries and title plans can lead to disputes over encroachment, rights of way, adverse possession, party wall and construction disputes. Therefore, specificity and clarity are critical in ensuring that issues do not arise later on.

• There are practical issues with boundary fixing; it is both time consuming and expensive. It should also be noted that the Applicant has to bear the costs of the application, which is often unwelcome. Due to this, alternative dispute resolution ('ADR') is always preferable and should be encouraged. A previous article on mediation can be found here. Indeed, Lord Hoffman in the case of Alan Wibberley Building Ltd v Insley (as above) stated that there should be as much certainty as possible as to the law of boundary disputes given the personal feelings at play, along with the sums being spent on small and valueless pieces of land.

• There is a specific pre-action protocol to these types of dispute: the Protocol for Disputes between Neighbours about the Location of their Boundary (The Boundary Disputes Protocol). It has been developed to encourage parties to work together to resolve their boundary disputes early without resorting to litigation.

  
  

• Making such an application to determine the boundary of the property should enable the land owner to prevent a squatter from being able to assert ownership via adverse possession.

  
  

• There are defences to boundary applications which may bite. They include adverse possession (consistent usage over 10 or 12 years), necessity, profit à prendre (the right to enter land and remove a product or resource; for example, crops or money making chattels which were previously there with permission) and rights of way (usually 20 year usage). As can be appreciated, many of these defences require a significant passage of time in order to be applicable.

  
  

• The wording of the conveyance will be crucial, but as outlined above, it can be displaced.

• The fact that boundaries are general in nature, means that adjustment of a boundary line on a Land Registry title plan will not prejudice the proprietor of the area of land affected, as it never forms part of the title.

Please note that our posts should not be intended to be legal advice and should not be construed as such; they are merely discussions and therefore readers are encouraged to seek professional legal advice for their own matters.