Boundary Dispute Causes

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

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Causes of boundary disputes

 You are here:    Boundary Problems  |   Investigating Boundaries  |  Causes of boundary disputes
General Background
Cultural factors - a culture of ignorance
Cultural factors - the lack of a regulatory authority
Cultural factors - Socio-legal aspects
Cultural factors - Psychological aspects
Technical factors in boundary disputes
Cultural factors - Obstacles to dispute resolution
Suggestions for a better way

 

General Background

This page isn't so much about what causes boundary disputes; it is more about the environment in which they thrive. If you understand that environment you may be in a better position to avoid some of the pitfalls.

It may be argued that the system of defining and recording property boundaries suffers from imprecise describing and recording of boundaries, and that we have made little or no progress in these matters since the setting up, as long ago as 1862, of the Land Registry. But in the last analysis, boundary disputes arise because of one landowner's lack of consideration for the owners of the adjoining land.

Far more boundary disputes occur between the owners of two adjacent residential properties than between commercial or agricultural neighbours. Residential landowners tend to tackle their disputes emotionally, standing by their principles and seeking what they perceive as justice, rather than rationally evaluating the relative merits of a number of alternative, pragmatic solutions to the dispute.

When boundary disputes arise, the power of the law is felt only in the courtroom, there being no regulatory authority, no equivalent in boundary disputes to the policeman who can intervene in a potential civil unrest to ensure that no breach of the peace or riot ensues.

Insufficient use is being made by residential landowners of alternative disputes resolution procedures such as expert determination, mediation and arbitration, whilst the Land Registration division of the Property Chamber (First-tier Tribunal) - which on 01 July 2013 took over the duties of the office of the Adjudicator to HM Land Registry, although it reduces the number of cases taken to the County Court is itself a court of law.

If only landowners would act rationally and pursue a solution that minimises the cost to themselves in money, time and anguish then they wouldn't pursue a two- to four-year-long battle through the courts costing themselves tens of thousands of pounds in an argument over a narrow strip of land that probably has no discernible value - just ask a chartered valuation surveyor to value your house with the disputed fence where it now stands, then with the disputed fence in the place where you (or perhaps your neighbour) would like it moved to, then see if there is any difference in the two valuations.

 

Cultural factors - a culture of ignorance

Most land owners have never received training in property law - it is not a part of their general education. It is only some lawyers and surveyors, for whom property law is part of their professional life, who have received such training.

The majority of landowners are owners of residential land, i.e. a small plot of land on which their house stands. When this class of landowners buys their first house, or wants to move house, they visit a number of estate agents in their search for a suitable property. Every one of these estate agents will try to sell them a suitable house that, by the way, happens to have a bit of garden around it.

Having identified a suitable house the would-be owner of it hands everything over to a solicitor to handle all of those things involved in the conveyancing process, conveyancing being a black art as far as any first time buyer is concerned. Most purchasers don't realize that their conveyancing solicitor is concerned with processing a piece of land that, by the way, happens to have a house on it.

Another fact that escapes the attention of almost all purchasers is that neither the estate agent nor the solicitor with whom they deal during the house buying process has been trained in checking whether the apparent physical boundaries of the property match the description of the boundaries in the title deeds. Moreover, having each charged you a sizeable fee they sense that an additional fee to have a land surveyor check the boundaries for you would be an unwelcome additional expense for the house-buyer to bear, so checking of the boundaries is never done.

Admittedly, there is a growing practice amongst conveyancing solicitors to hand the house buyer a copy of the title plan with an instruction to view the house again and check the boundaries against the title plan. Given that:

  • the title plan shows only the general position of the boundaries, using a map that by law does not show property boundaries and suffers from accuracy limitations;
  • the plan carries warnings concerning the above;
  • the house buyer is not provided with a description of the boundaries;
  • the house-buyer has no training in boundary descriptions and boundary demarcation;

I am unable to see how the exercise is designed to do anything other than to provide a mechanism for the conveyancer to avoid blame if a boundary dispute subsequently arises.

There is another factor that has kept residential landowners uninformed about the legal issues relating to their land. Most house-buyers require a mortgage with which to purchase their house. Back in the days of unregistered land, mortgage lenders would take possession of the title deeds as security against non-repayment of the mortgage. Without the deeds a house owner cannot sell his house without the mortgage lender's knowledge. To sell the house required the house owner's solicitor to obtain the mortgage deeds direct from the mortgage lender and it was the solicitor's duty to ensure that the outstanding loan was repaid upon the sale.

The effect of not holding the deeds was to keep the house owner (i.e. the residential landowner) uninformed of all of the legal issues, including boundaries, concerning his land.

With registered land, the purchasing landowner receives from Land Registry, a matter of weeks after moving into his new house, a title register and a title plan relating to his land. If the house has been purchased with a mortgage then the register will include a charge against the title in favour of the mortgage lender. This charge enables the mortgage lender to dispense with the need to hold the title deeds, and as a consequence of this many sets of pre-registration title deeds can no loinger be found.

The title register gives the new owner information of which he would have been unaware if he had previously owned unregistered land, and he would be unaware of the deficiencies in the information in the title registers, i.e. those things that were in the title deeds (conveyance deeds or transfer of part deeds) that Land Registry has chosen to omit from the title register: one thing that Land Registry always omits is the boundary description.

The title plan is very official looking, has Land Registry's name prominently displayed, carries a government copyright notice, and has Ordnance Survey's name on it (and Ordnance Survey is seen as the Rolls Royce of mapping). Any first time house buyer is going to think that this title plan is the definitive statement of where his boundaries are. What a shame that a magnifying glass is required if you want to see the fine detail of it. The warning at the foot of the page tends to go unheeded, at least by those who have not yet read the Boundary Problems web site: "This title plan shows the general position, not the exact line, of the boundaries. It may be subject to distortions in scale. Measurements scaled from this plan may not match measurements between the same points on the ground."

In short, and through no fault of their own, landowners are living in a culture of ignorance about property law in general and boundaries in particular.

 

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Cultural factors - the lack of a regulatory authority

Let me pose the question: "Who is the regulatory authority for property (or real estate) boundaries in England and Wales?" What answer would you give me? Given that the title register and title plan look so official, perhaps you might answer, "Why, it's Land Registry, of course!"

Unfortunately you would be wrong. The correct answer is that there is no regulatory authority charged with overseeing property boundaries in England and Wales. Property boundaries are a civil matter and are dealt with by contract between a seller and a purchaser, or between a transferor and transferee of registered land.

Land Registry acts as a technical library that holds information on a limited range of subjects. This information is supplied to them by others. Land Registry has little or no control of the quality of the information that is supplied to them.

The relationship between supplied boundary descriptions (in words and by means of a plan) and title plans is complex. Conveyance plans and transfer plans come in a variety of guises and Land Registry is required to translate them onto a common standard of mapping, specifically Ordnance Survey mapping at the largest scale published of the particular area.

Translation of graphical information from one map base to another will often require a degree of interpretation, and it can be open to question whether that degree of interpretation is wide enough to be considered an error. Now add in the fact that Land Registry is trying to map the legal boundaries described in conveyance plans and transfer plans onto the physical features shown on Ordnance Survey's maps (which maps are prevented in law from depicting property boundaries) and the degree of interpretation increases. Add in again Ordnance Survey's accuracy limitations, and you arrive at the need to describe title plans as showing only the general boundaries of the land in a registered title.

When interpreting this 'general boundary' it is important to consider the effect that the scale of the title plan has on your ability to perceive what the plan is telling you. Ordnance Survey draws the fine lines on its maps at 0.2 mm wide on the paper.

  • If your property is in an area mapped by Ordnance Survey at 1:1250 scale, that 0.2 mm line on the paper is the equivalent of a 250 mm (10 inch) wide line on the ground.
  • If your property is in an area mapped by Ordnance Survey at 1:2500 scale, that 0.2 mm line on the paper is the equivalent of a 500 mm (20 inch) wide line on the ground, and it is still 500 mm wide if Land Registry has enlarged the title plan from Ordnance Survey's 1:2500 scale to their own 1:1250 scale.

If Land Registry does not know precisely where the boundary is, and if they show it by a line that is effectively either 250 mm or 500 mm wide on the ground, then Land Registry is simply not in a position to be a regulatory authority for boundaries.

 

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Socio-legal aspects

An important factor in boundary disputes is the lack, in English law, of a concept of theft of land. Plants, statues, paving stones, parked cars, and almost anything else including the soil itself, may be stolen from your land, but the land itself cannot be stolen. Land can be possessed by someone other than the rightful owner, and if that possession is adverse to the interests of the rightful owner then the adverse possessor may eventually become the rightful owner. But if the rightful owner wins a civil case to recover his land, then the adverse possessor does not gain a criminal conviction for theft and cannot be sent to prison (unless of course he has demonstrated a contempt of court during the course of the trial). The prospect of an adverse possessor being rewarded with the title to the land he is claiming has provided encouragement to squatters. The lack of sanction of a failed adverse possession, by means of a criminal record and a prison sentence, means there is no deterrent against squatters. We have yet to see whether the Land Registration Act 2002 will bring about an end to squatters who occupy an entire parcel of land, but adverse possession is likely to remain a valid argument when it comes to boundary disputes.

But why does the law not recognise the concept of theft of land?

Think about car ownership. There is absolute certainty as to who owns the car. The ownership of the car is registered (according to the demands of the law) at the Driver and Vehicle Licensing Agency. The agents of the law (police) can very quickly establish the identity of the true owner of the car.

Think about land ownership and registration. Certainly, Land Registry unambiguously records title to land: but Land Registry is very unlikely, because it has little or no control over the quality of the information that it receives, to know precisely where your boundary is. Exceptions to this are the pitifully few “fixed boundaries” and the very recent and still very few “determined boundaries”. So there is no certainty as to the precise position of the boundary and it would be difficult to establish whether “theft” of the land had actually occurred.

Until such time as we have a record of the precise position of every property boundary in the country (and that time appears to be so far away that it can be called never) then it would be very difficult to fairly try the , because it has little or no control over the quality of the information that it receives, “crime” of land theft. So in the meantime we must accept that there is no such thing as the theft of land.

Another factor is the lack of intermediate legal processes that might defuse a boundary dispute and prevent it from escalating. A surveyor might at an early stage give his professional opinion as to where the boundary is, but it is only an opinion and does not carry any force of law. The surveyor does not have powers similar to those of a policeman who may intervene in a potential civil unrest to ensure that no breach of the peace or riot ensues.

A third factor is a lack of take-up of alternative means of dispute resolution that fall short of taking the matter to the county court. There are mediators willing, via a process of shuttle diplomacy, to facilitate a negotiated settlement between disputing neighbours, but their services are too infrequently used in the resolution of boundary disputes. There are adjudicators who will make impartial decisions as to the position of the boundary based on the evidence presented to them, but they are again infrequently used in the resolution of boundary disputes.

It remains to be seen whether the new post of Adjudicator to HM Land Registry, set up by the Land Registration Act 2002 and now replaced by the Land Registration division of the Property Chamber (First-tier Tribunal), will provide an acceptable alternative means of resolving boundary disputes. The Tribunal is actually a court within the Tribunals Service of the Ministry of Justice. Early indications are that litigants who use it are sometimes as willing to spend money on legal advice and representation as if they were using the County Court or the High Court.

 

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Cultural factors - Psychological aspects

For lack of other controls, psychological factors come into play and will often drive forward a dispute that could have been resolved had the matter been approached in an entirely rational manner.

One such psychological factor is greed. An example is a new owner who, only after moving into the house he has bought, notices that the fence is nearer to the side of his house than the conveyance plan shows it. Instead of accepting that he bought the land contained within the fence (which is the land that he was shown and was identified to him at the time he viewed the house), he presses a claim against his unwitting neighbour for the 'return' to him of land that he did not purchase in the first place.

The next example may also be described as greed although it could also be properly described as a pseudo-boundary dispute. It involves the landowner who desires to build an extension, garage, driveway or whatever along the side of his house but discovers there is insufficient room and fabricates a boundary dispute in order to manufacture the space demanded by his plans.

Another psychological factor is an arrogant disdain for the rights of the adjoining landowner. It is quite possible to successfully press an unwarranted case against an adjoining landowner who you know is not prepared to countenance the costs involved in defending his rights in court.

The two most powerful psychological factors are an emotive quest for justice and a determination by the injured party not to allow the neighbour to 'get one over'. When these operate together they provide an unstoppable momentum to see the matter through to the county court, no matter how long it takes, no matter how upsetting the process is, and no matter how much it costs.

 

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Technical factors in boundary disputes

Technical factors include:

  • legal arguments as to whether adverse possession affects the case;
  • arguments as to whether certain legal presumptions (such as the hedge and ditch presumption) affect the case;
  • downright poor descriptions of the boundaries.

I shall pass over the legal arguments and concentrate on boundary descriptions.

Boundary descriptions can be expressed in words or they can be map-based.

Describing a boundary using words is something we English were once good at. It was known as a "metes and bounds" description.

Unfortunately, I have never seen an example in England or Wales of a conveyance that employs the metes and bounds method of describing boundaries. All that we ever get in a conveyance deed, and then only if we are lucky, to help identify the position of a boundary is the distance: there is never a direction, and it is only in Scottish conveyances that I have ever seen a description of the feature that the boundary follows. I have never seen a conveyance that gives the directions, or bearings, that boundary lines follow.

Describing a boundary using maps or plans is something that we English have proved remarkably poor at.

There is a good reason as to why so many conveyance plans are so poor at identifying boundaries, and it is down to cost. It was only in the 1980's that angle measurement, distance measurement and computing technology were combined into a single surveying instrument so as to make land surveying more productive and cost efficient than ever before. Back in, say, the 1920's, a land surveyor would use one instrument for precisely measuring angles, had no means of precisely measuring distances (but could measure distances the tedious way using chains or a tape measure), and had to do by hand all of the trigonometrical calculations to turn his measurements into a plan. The old technology produced less accurate results, and the manual processes made land surveying a very much more expensive process than we are accustomed to today.

So what vendor, prior to 1980, was going to spend the money needed to hire the services of a land surveyor? After all, an accurate description of the land was not seen as being necessary when it was up to the buyer to beware - caveat emptor - of what was being offered for sale to him? Conveyancing was already seen as expensive enough. So vendors have traditionally saved themselves money by relying on inadequate boundary descriptions.

Rather than pay for a map that describes the boundary accurately, common practice has been to use anything that comes to hand, such as:

  • an Ordnance Survey map, which may not be accurate enough for a precise definition of the boundary, and may be out of date and contain features other than those that defined the boundary at the date of the sale;
  • a tracing made from an Ordnance Survey map, which may introduce further inaccuracy;
  • a developer's plan of what the architect designed, which all too often differs from what was built and - crucially - where it was built;
  • a sketch map, lacking both scale and dimensions, on which you may be able to identify the property, but not its extent.

Dimensions: Lawyers are accustomed to the notion that maps and plans are not always as accurate as we would like them to be. Lawyers and landowners seem to have a blind spot over the accuracy of dimensions: the thinking appears to be that the dimensions are stated in black and white in a deed, which is a legal document, and that someone measured them, so therefore they are correct. I have so many reservations over dimensions that I am prevented from taking them at face value: in fact, I would say that dimensions should always be treated as being unreliable unless they are corroborated by some other evidence. These reservations are listed in the Parcels Clause section of the Deeds & Plans page. An example of a set of dimensions that are demonstrably incorrect is given in answer to the frequently asked question on the Investigating boundaries page.

Considering here just the bald dimensions: conveyances and transfer deeds never tell us:

  • who measured them: a qualified land surveyor or the landowner's gardener?
  • what equipment and/or method was used in the measurement?
  • what accuracy tolerances can be applied to the measurements?
  • whether the dimensions represent horizontal distances (as might be scaled from, or plotted onto, a map or plan) or slope distances (measured along the ground)?

To illustrate how significant these discrepancies can be: one case in Kent, where the land in question was steeply sloping, involved a dimension of 106 feet. It was not stated whether this 106 feet was a horizontal distance or a slope distance.

If the dimension was treated as a horizontal, or map, distance then it would be necessary to measure 114 feet up the slope in order to travel 106 feet across the map.

If that dimension was treated as a slope distance, then the equivalent horizontal distance across the plan was only 98 feet 6 inches.

Overlaying the conveyance plan upon an accurate survey failed to throw light on the correct interpretation of the 106 feet, especially as none of the physical features then present on the ground was located at exactly 106 feet, whether measured either horizontally or along the slope, from the opposite boundary.

Another problem with dimensions is that they never include sufficient information to unambiguously define the boundary.

For example, to unambiguously define the size and the shape of a triangle requires:

  • either the length of all three sides,
  • or the length of two sides and the size of one of the angles,
  • or two of the angles and the length of one side.

A knowledge of trigonometry will allow the calculation of the missing side lengths and angles.

Triangular parcels of land are extremely rare. I have come across only two. In both of those cases the conveyance was unable to correctly describe the boundaries of a simple triangle.

In the example at left, the conveyance plan gives us insufficient information: the lengths of only two of the sides, and no angles.

You might assume that one of the boundaries runs perpendicular to the road. This would give you one angle of your triangle: 90 degrees. It would be simple to calculate the length of the third side using Pythagoras (no need for trigonometry). But you would be wrong. An accurate land survey of this site found that the line of the party wall is not in fact perpendicular to the road.

So the conveyance, which gave us only two sides and no angles, fails to correctly define the extent of the parcel of land.
In the example at right, the owner of "Original Land" purchased "New Land" so as to extend his garden into the junction between the two roads that bordered his land. There are two problems with the dimensions given in the conveyance for New Land:
  • the conveyance for New Land disagreed with the conveyance for Original Land as to the length of the common boundary of the two parcels of land;
  • when constructing the unique triangle defined by the three dimensions given in the conveyance to New Land, the resulting triangle does not fit in between the two roads as one would expect it to.

So that is a 100% failure rate in the attempts by the draftsmen of conveyances to unambiguously describe a triangular parcel of land. How do they fare in unambiguously describing quadrilaterals?

Mathematically, if you wish to unambiguously define a quadrilateral then you need to state:

  • either:  the lengths of all four sides plus the length of one diagonal,
  • or:  the lengths of all four sides plus the size of one of the corner angles.

This information is sufficient for someone versed in trigonometry to break the quadrilateral down into two unambiguosly identifiable triangles. I have never seen a conveyance that furnishes all five pieces of information called for above. So this also is a 100% failure rate in the attempts by the draftsmen of conveyances to unambiguously describe a four sided parcel of land.

A further problem with dimensions arises when the deeds state the length of a curve or of a sinuous line. Such a dimension is impossible to set out on the ground. An example of this is the 580'0" dimension seen in Fig.2 of the article Digital Boundaries in Eng & Wales

Given that it seems there is not a single conveyance draftsman in the country who is capable of unambiguously describing the shape and size of a parcel of land, then it is little surprise that neighbours have cause to argue with each other over the exact position of their boundaries.

 

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Cultural factors - Obstacles to dispute resolution

When you buy your property it is done via a contractual relationship with the person who sold it to you. Once you have completed the purchase and taken possession of the property you also take over responsibility for all of the defects that are exhibited by the property.

One such 'defect' is a boundary that is disputed between you and the owner of the adjoining property. In very rare circumstances you may have a claim against the person who sold it to you. Usually it is a matter that has to be sorted out by you and the adjoining landowner. Clearly, it is better if this can be achieved cooperatively.

You do not have any contractual relationship with the adjoining landowner. Thus you have no laid down procedure for dealing with the dispute: no contract means no dispute resolution clause.

If you and the adjoining landowner try to sort it out between yourselves then it is quite likely that either you, the adjoining landowner, or both of you know insufficient about boundaries to even start to resolve the dispute.

You might ask Land Registry, but they are simply not in a position to give you an answer.

You might ask a surveyor or a solicitor to advise you, but he or she is not in a position to force their expert/professional opinion or their legal opinion upon you both if one of you doesn't like that opinion.

Unless you and the adjoining landowner are willing to cooperate with each other then you are at an impasse. This is the time (although you will wish it was prior to you consulting with a surveyor or a lawyer) that you might wish for a regulatory authority to come and tell you exactly where the boundary is. But there is no regulatory authority.

So you are faced with a choice between an alternative dispute resolution (ADR) method on the one hand or litigation on the other. Litigation is cumbersome, long-winded, and costly.

 

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Suggestions for a better way forwards

It is inevitable to believe that there must be a better way of doing things, that would either prevent boundary disputes from happening, or that would make it easier to resolve disputes.

Other countries have other systems of land registration that tend to rely heavily on the accurate mapping, recording and the physical marking on the ground of boundaries. To change our system to a similar model would be inordinately expensive. It would also be more expensive to run and maintain, and whilst there might be fewer opportunities for boundary disputes, no system can be proof against boundary disputes.

Within the present system we can do nothing about the totally inadequate boundary descriptions in the deeds of existing properties. For new properties, Land Registry is trying to persuade developers of the wisdom of doing as-built surveys for use as conveyance plans. If developers used as-built surveys to register 'determined boundaries' (see Agreed Boundaries and Determined Boundaries) for the new properties then (so the thinking goes) these new houses could be marketed as being proof against future boundary disputes - and such a marketing advantage should provide enough incentive for the developers to abandon their practice of re-using layout plans for conveyancing. I haven't noticed any advertisements boasting boundary-dispute-proof housing, so perhaps it should be made a legal requirement for developers to carry out as-built surveys and to use these for conveyancing and land registration. Failing that, purchasers of new houses should perhaps consider insisting that the developer provides an as-built survey as a basis for the transfer plan.

Within the present system, professional advisors can at an early stage encourage the protagonists to take a more rational view of the dispute and to look at it in more economic terms. If clients and their neighbours can be persuaded at an early stage to commit to an amicable agreement or to mediation or arbitration, then considerable time, anguish and expense can be saved. Compare such a situation with an admittedly stereotypical boundary dispute between residential neighbours and the advantages are obvious: but it requires that both neighbours are convinced of the benefits for it to work. In the stereotypical boundary dispute between residential properties both parties stand on their principles, engage solicitors, obtain surveyors' reports, instruct barristers and go to court. The process can take three of four agonising years in which the anxiety may well make at least one of the protagonists very ill. The whole process will cost as much as the protagonists feel compelled to spend, typically of £40,000 or more by each party. At the end of the day, one of the parties is going to lose the case and is likely to be ordered to pay a substantial proportion of the other party's costs. And all for a narrow strip of land to which a chartered valuation surveyor would ascribe no marketable value.

Contrast this with the stereotypical boundary dispute between two large commercial companies. For operational reasons they cannot contemplate the whole process lasting more than a few weeks. They will also want to minimise the effect of the dispute on their respective company's bottom line. Their boards will therefore take managerial decisions that minimise the time and cost elements of finding a workable solution to the dispute.

 

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