Agreed Boundaries & Determined Boundaries

Jon Maynard Boundaries Ltd, Boundary Demarcation and Disputes, Rights of Way, Expert Witness, Chartered Land Surveyor

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Agreed and Determined Boundaries

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Agreed Boundaries
Agreeing boundaries by transferring small pieces of land
Determined Boundaries

Agreed Boundaries

Previous pages of this web site have identified the low standards that have been applied when describing boundaries for the purposes both of selling discrete parcels of land and of registering title to those same parcels of land. It is therefore unsurprising that owners of adjoining lands might find themselves confused as to the position of their common boundary.

Sometimes, such adjoining landowners are on amicable enough terms to discuss sensibly the problem of correctly identifying the true position of their boundary. They might study the conveyances to their respective lands and, by discussion, conclude what it was that the vendors intended by those conveyances. Having decided on a position for the boundary that is in keeping with the deduced intentions of the vendors, the adjoining landowners have created an agreed boundary.

Because the agreed boundary is consistent with the description in the original conveyances then it is likely that the agreed boundary would be accepted by a judge if the same boundary was later the subject of a legal action. However, the law is a complicated matter: Colin Sara explains boundary agreements at pages 36 to 39 of the second edition of his book. Essentially, a boundary agreement is a contract which, unlike a deed, is capable of being nullified. However, it is also possible that a court might decide to uphold a boundary agreement, perhaps by invoking proprietary estoppel.

Land Registry advises at paragraph 10 of their Public Guide 19 that "It is best to record the agreement formally. You can do this ... by setting your agreement down in a formal document". At paragraph 3.3.1 of their Practice Guide 40 Land Registry advises that "applying for [the formal boundary agreement] to be noted on the individual registers ... will effectively record the agreement, but will not determine the exact line of the boundary of the registered title". I imagine that the appropriate medium for applying to Land Registry is their Form AN1.

Some firms of chartered surveyors practising as boundary demarcation specialists, for example Jon Maynard Boundaries, offer services to prepare boundary agreements.

 

Agreeing boundaries by transferring small pieces of land

There are occasions when it is desirable to adjust - by agreement with the neighbouring landowner - the boundaries of a property by a small amount (which adjustment will also affect the adjoining land), for example:

  • to straighten a boundary that is clearly bent so as to facilitate the construction of a straight boundary fence or wall;
  • to widen a driveway (at the expense of the neighbour's front garden) because modern cars are wider than those available when the house was first built and it is now difficult to use the driveway.

The boundary resulting from such an agreement will not be consistent with the original conveyance. It is therefore inappropriate to use an agreed boundary as a means of achieving such a land transaction, which requires a conveyance or a transfer deed. Land Registry would reject an application to note such a transaction as a boundary agreement.

 

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Determined Boundaries

The name of Land Registry's Form DB - Application to determine the exact line of a boundary - may be thought misleading. The name suggests that the applicant is asking Land Registry to decide exactly where the boundary is. This is something that Land Registry will absolutely refuse to do.

At paragraph 3.3.1 of their Practice Guide 40 Land Registry poses the question:
"What is a determined boundary?"
It immediately follows with an explanation that fails as a definition:
"This is a procedure that allows for the exact line of a boundary to be determined and recorded on a registered title (s.60, LRA 2002)."

At paragraph 8 of their Public Guide 19 Land Registry tells us that to "determine the boundary" "you must produce a very precise plan showing where the exact line of the boundary is" and submit the plan with a completed form DB. So it is up to the landowner to find out exactly where the line of the boundary runs.

Choosing a surveyor to help discover the exact line of the boundary
How does a landowner discover the exact line of the boundary? Practice Guide 40 and Public Guide 19 neglect to tell us how to go about discovering the exact line of the boundary. So professional help is going to be needed. But what kind of professional?

Land Registry tells us at paragraph 8 of Public Guide 19, "You will also need to use a qualified surveyor to draw up a plan that meets Land Registry's requirements." At paragraph 3.3.2 of Land Registry's Practice Guide 40, which deals with "Determined boundary plan requirements", you will surely conclude that your "qualified surveyor" should be a land surveyor. Other kinds of surveyor (eg. chartered valuation surveyor, chartered building surveyor) cannot be expected to cope with the mapping task and most certainly cannot be expected to meet Land Registry's stringent requirements.

If your surveyor is unable to use an instrument like the one in the photograph at right, and is unable to use Computer Aided Drafting (CAD) software then he (or she) is not going to be able to satisfy Land Registry's requirements when applying for the determination of the exact line of the boundary.

electronic total station survey instrument

So a landowner's choice of professional help in determining the exact line of the boundary should come down to a land surveyor specializing in boundary demarcation, preferably but not necessarily a chartered land surveyor. Jon Maynard Boundaries is suitably qualified and experienced to offer services in connection with determined boundaries.

What happens to your application once it has been submitted?
Land Registry's first action will be to check the description of the boundary that has been submitted to them against any copies of title deeds that they hold and against the supporting evidence submitted with your application. They do this to check that the plan meets their stringent requirements and to check that the boundary it describes is consistent with the title deeds. If your application passes these tests then you have a viable application. But viability does not guarantee that Land Registry will necessarily accept your application.

Because your application, assuming that you have made it unilaterally, will surely affect your neighbour, Land Registry's second step is to consider your neighbour's interests. As they say at paragraph 3.3.3 of Practice Guide 40, "If an application is made without the agreement of the adjoining owner and we think there is an arguable case, we will serve notice on them. They may object and the additional costs of having that disagreement resolved can be very high ..."

It is only when the application is approved by your neighbour that Land Registry will accept it and note it on the registers for both titles.

 

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So, now we know what a determined boundary is !
A determined boundary may be defined as:

  • a paper title boundary that is poorly described in the title deeds,
  • whose exact position has been ascertained with the help of ...
  • a professionally qualified land surveyor ...
  • who has accurately mapped and painstakingly described it, and
  • which description is accepted by the adjoining landowners on either side of the boundary,
  • so that Land Registry may note on the register for each title that the exact line of the relevant portion of the boundary has been determined.

It is important to note that a determination of the exact line of a boundary does not redefine either the legal boundary or the paper title boundary in the sense of moving the legal boundary or the paper title boundary to a new location: the legal boundary and the paper title boundary remain where they always were and the determined boundary merely describes more precisely the position of the boundary.

If, as a result of determining the exact line of the boundary, the physical features by which the adjoining landowners have hitherto recognised the boundary are found to be in a position other than on the determined boundary then it may be necessary to relocate the physical boundary to bring it into sympathy with the Determined Boundary.

In what circumstances should you apply for a determined boundary?
Land Registry advises at paragraph 3.3.3 of Practice Guide 40: "An application to determine the boundary lodged without the involvement of the adjoining owner is not a solution to a boundary dispute."

In spite of that advice, I know of a case where a landowner used an application to determine the exact line of the boundary as a means of forcing his neighbour to stop ignoring the issue, and to persuade Land Registry that the case should be referred to the Adjudicator to Land Registry for a decision as to the exact line of the boundary.

Ideally, Land Registry would like all applications to determine the exact line of a boundary to be made jointly by the adjoining landowners. So if you perceive a need to know exactly (or to within 10 mm as Practice Guide 40 specifies) where your boundary is then it makes sense to:

- talk to your neighbour and agree the need for such precision;

- agree with your neighbour that the aim is not to redefine or to move the boundary itself but to refine the precision with which your common boundary is described (although it may later be necessary to move any physical features that appear to mark the boundary but are found to be out of position);

- agree with your neighbour to jointly instruct a land surveyor specialising in boundary demarcation to advise and to draw up the necessary plan to the specification in Practice Guide 40;

- make your application jointly to Land Registry.

If relations with your neighbour are such that an amicable approach is not viable, and if the boundary issues develop into a legal action, then it makes sense that the eventual resolution of the dispute, i.e. the Court's Judgment, is formally recorded by means of an application to Land Registry to determine the exact line of the boundary.

 

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Features of the determined boundaries system
Whilst it requires a professionally qualified land surveyor to prepare the plan, the determined boundaries system has been cleverly devised to allow any lay person armed only with a tape measure to restore any damaged physical boundary feature to its correct position.

As well as accidental or criminal damage to a wooden fence, natural disasters are capable of destroying physical boundary markers. Think of the storms of October 1987 and January 1990, of the occasional tornadoes that occur even in temperate England, and of the catastrophic flooding of Boscastle in Cornwall in 2004.

The determined boundaries system works on the principle that the termini and every turning point along a boundary can each be related to at least two reference points, and that a layman armed with a tape measure should be able to measure to each turning point from at least two reference points. But be warned, a simple handyman's 5 metre long tape measure is unlikely to be long enough for the job. Anyone attempting to restore a damaged boundary should equip themselves with a tape at least 50 metres long, preferably 100 metres.

Some of the requirements given at paragraph 3.3.3 of Practice Guide 40 are:

  • Measurements shown on the plan need to be both precise and accurate to 10mm.
  • The measurements should be taken from at least two defined points on surrounding permanent features. In this context ‘permanent features’ are taken to be physical features, which it is reasonable to assume will remain in position for at least 10 years, taking into account the nature and construction or character.
  • The measurements must be taken horizontally, that is not along a slope.
  • Any measurements must be from precise points on physical features such as the corners of buildings.
  • Measurements from features that are subject to natural growth or decay cannot meet the accuracy requirements.
  • If possible measurements should be taken from both sides of the boundary.
  • The specific relationship of the boundary to physical features must be shown. For example, on which side of the feature the boundary line runs or through which point of the feature the boundary passes.

When you analyse the above requirements, a limitation of the determined boundaries system becomes apparent. Whilst the system can be expected to work well in heavily built up areas, it becomes weaker as the gardens get bigger and the boundary strays further and further away from the 'permanent features' (which will be man-made objects made of stone, brick, concrete and steel). In rural areas, particularly on the boundaries around fields, the system becomes unusable because the only permanent features are likely to be hedgerow oaks which are disqualified as reference points because they lack 'defined points' and 'corners' and are 'subject to natural growth'. To overcome this limitation, Land Registry will accept determined boundary applications that are based on Ordnance Survey's National Grid coordinates.

Determined boundaries have a lot of potential both:

  • for recording the positions of boundaries determined in the course of resolving a dispute, and;
  • in providing a focus around which a dispute can be settled amicably without recourse to either ADR or litigation.

 

 

Sara, C., Boundaries and Easements, Sweet and Maxwell, 1996.

 

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