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

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FREQUENTLY ASKED QUESTIONS about boundaries

 You are here:    Boundary Problems  |   Legal Background  |  FREQUENTLY ASKED QUESTIONS about boundaries
Boundary definitions: I want someone with authority to come out and tell me exactly where my boundary is.
Boundary definitions: Does the Ordnance Survey map define my boundaries?
Boundary definitions: Can I scale from an Ordnance Survey map the true position of my boundary?
Boundary definitions: Can I use the title plan to measure to my boundary from the side of my house?
Dimensions in Conveyances and on Deed Plans: How accurate are the dimensions that are stated in title deeds?
Fence, age of: How can I find out the age of my wooden fence?
Fences, appearance of: Must the smooth side of my neighbour's fence face towards me?
Fences, appearance of: Can I paint my side of my neighbour's fence?
Fences, appearance of: What can I do about the unsightliness of my neighbour's fence?
Fence height: How high a fence can I put on my boundary?
Fence height: Can I make my neighbour reduce the height of his fence?
Fence ownership: Who owns which fence? Is it true that every house owns the fence on its left side, as you look at it from the street?
Fences as supports: Can I hang things on my neighbour's fence? - Can I use my neighbour's fence as a support for my own plants?
Neighbour's fence: What can I do when my neighbour won't repair his fence?
Open plan front gardens: Where is the boundary of my open plan front garden?
Title Deeds: Where do I find my title deeds?
Title deeds: Is it possible for me to see my neighbour's title deeds?

 

  FREQUENTLY ASKED QUESTION  
    
Boundary definitions: I want someone with authority to come out and tell me exactly where my boundary is.

Unless you have one of those rare properties that has a "fixed boundary", a "determined boundary", or a "boundary agreement", then it is no good asking Land Registry exactly where your boundary is because they record only the general position of the boundary.
 
There are three classes of person who have the authority to tell you exactly where your boundary is They are a High Court Judge, a County Court Judge, and an Adjudicator to HM Land Registry. None of these will come out to your premises and tell you where your boundary is. Rather, they will expect you to make a legal case to be tried in their court, at the end of which they will make either a Judgment (High Court and County Court) or a Decision (Adjudicator to HM Land Registry).
 
Taking such a request to a Court will consume disproportionately large amounts of time and money, so it is more usual to turn to a suitable professional (see Find a boundary surveyor) for an opinion as to exactly where the boundary is located. Such a professional, particularly one who has experience of giving evidence in court, is likely to identify a position for the boundary that can be relied upon.
 
The difficulty with obtaining a professional opinion is that the emphasis is on the word opinion rather than on the word professional, and in law an opinion can always be argued against. So even if you obtain the opinion of the country's most respected boundary demarcation and disputes expert, if your neighbour sees things differently from you then you will be unable to impose your expert's professional opinion on your neighbour.
 
If your neighbour resolutely holds to a different opinion from you, then calling in an expert to obtain a professional opionion is unlikely to settle any dispute between you and your neighbour.
 

 

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  FREQUENTLY ASKED QUESTION  
    
Boundary definitions: Does the OS map define my boundaries?

The Ordnance Survey Act 1841 does not grant Ordnance Survey the power to ascertain or alter property boundaries. The Ordnance Survey map is thus a map of the physical features encountered on the land by Ordnance Survey's surveyors. It is a map made without any enquiry as to the positions of property boundaries. It cannot therefore be a definitive map of property boundaries. Land Registry is careful to point out that its title plans, based as they are on Ordnance Survey maps, show the general positions of the boundaries of registered land.

See also
http://www.ordnancesurvey.co.uk/oswebsite/support/knowledgebase/property-boundaries.html.
 

 

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  FREQUENTLY ASKED QUESTION  
    
Boundary definitions: Can I scale from an Ordnance Survey map the true position of my boundary?

No. Just take a look at Ordnance Survey's Relative Accuracy table, on the "Using OS Maps" page, and judge for yourself.

See also the "Example of confusion arising from map generalisation", on the "Using OS Maps" page.

See also the Frequently Asked Question Can I use the title plan to measure to my boundary from the side of my house?, below.
 

 

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  FREQUENTLY ASKED QUESTION  
    
Boundary definitions: Can I use the title plan to measure to my boundary from the side of my house? When I do so I find that the fence is nearer to my house than the title plan says it should be. Am I right in thinking that my neighbour must move the fence?

This is, sadly, a common error.

Firstly, Land Registry is not responsible for specifying where the boundary should be: that is the responsibility of the owner who divided the land into its present parcels. It is Land Registry's duty to show only the general position of the boundary.

Secondly, the Ordnance Survey map on which the title plan is based is not a perfect representation of the real world (see Using Ordnance Survey maps): scaling distances from it produces misleading results and cannot, legally, identify the boundary’s position.

The example of the fictitious Acacia Road, illustrated in the drawing at right, demonstrates that distances scaled from a title plan cannot be relied upon.

The owners of 10 Acacia Road scaled from the title plan a distance of 14 ft feet between the side of their house and the boundary. Outside, they measured with a tape a distance of only 13 feet. Armed with this information they accosted the owner of No 8, telling him that his fence was in the wrong position and that he must re-erect it in accordance with the position of the boundary as shown on the map.

Their logic - that "the plan shows the boundary in this position, and the fence is in another position, so the fence is in the wrong place" - can be shown to be false logic if we examine the other flank boundary to No. 10, the one that runs along the party wall that is shared with No. 12, another semi-detached house that is identical to No. 10, but the map shows that No. 12 is 2 ft wider than No. 10. By the same logic that the owner of No. 10 has used to demand the relocation of No. 8's fence, the owner of No. 10 should be offering to relocate the party wall with No. 12 and to give up 1 ft of the space inside his house so that No. 12 can be made up to its "true" width according to the plan. Clearly, the owner of No. 12 would not agree to relocating the party wall. [In case you think that this example is far-fetched, take a very close look at the representation of semi-detached and terraced houses on any Ordnance Survey large scale map.]

For another example of a misunderstanding of a title plan, or rather of the Ordnance Survey map on which the title plan is based, see Example of confusion arising from map generalisation on the Using Ordnance Survey maps page.

 

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  FREQUENTLY ASKED QUESTION  
    
How accurate are the dimensions that are stated in title deeds?
As the conveyance and conveyance plan (see extract on the right) are a legal document, and an official copy of it is held by Land Registry, which is a government appointed official archive, surely the dimensions it shows must be correct?
Barristers are prone to argue, and judges are prone to accept, that any dimensions stated in the conveyance deed or on a conveyance plan must be accurate, or at least true to within whatever tolerance they ascribe to the term "or thereabouts". The argument they propose is that because land is a valuable commodity then the vendor must have gone to the trouble of accurately measuring it out. However, this is an utterly fallacious argument.

If land is valuable then the vendor will seek to maximise his net receipts, or profit, from the sale of the land. As any economist or entrepreneur will point out, minimising costs is one sure way of helping to maximise returns. Given that the vendor will most likely have paid an estate agent to market the land and a solicitor to deal with the conveyancing, why would he go to the "unnecessary" additional expense of employing a land surveyor to measure it? If the purchaser is concerned as to the dimensions of the land he is about to purchase, then - caveat emptor (let the buyer beware) - it falls to the purchaser to go to the expense of accurately measuring the land he is about to buy.

If the conveyance dates from before 1950 then modern land surveying accuracies were not available: modern standards of land surveying productivity arrived much later. Accurate land surveying would have been far more expensive then than now, taking into account inflation. It was certainly not common practice for a vendor to instruct a land surveyor to measure the dimensions of a piece of land prior to its being offered for sale. The dimensions would have been supplied by the vendor, his estate agent or possibly his solicitor, none of whom would have had the relevant land survey training, all of whom were probably inadequately equipped for the task. Perhaps the dimensions were measured by no more accurate a method than pacing out the distance.
In the above example, part of the same land was sold on ten years later. The new conveyance plan (extract at right) repeats the dimensions from the earlier conveyance plan and adds some new dimensions. The new 90'0" dimension is apparently parallel to the 95'0" dimension. The 85'0" dimension is clearly not parallel to the other two, but if it is rotated about its bottom end to make it parallel with the 95'0" and 90'0" lines then it becomes only 82'1" long.
 
Consider the drawing at right, which is a more accurate version of the second conveyance plan. Now, using proportions: if the 82'1" line increases to 90'0" by moving it 155'6" to the left, then it increases to 102'0" by the time it is moved by 395'6" to the left. So we must conclude that the 95'0" dimension must actually have been 102'0". This suggests that the 95'0" dimension was not accurately measured at the time the first deed plan was drawn.
 
There is a further fault in these two conveyance plans. The two lines labelled 240'0" cannot be parallel to each other. Assuming the 90'0" and 102'0" lines are both perpendicular to the lower 240'0" line then, by Pythagoras, the upper line must be 3.5 inches longer than the lower 240'0" line.

This explanation relies on mathematics that should be fully understood by every 13 year old school child. Neither is it rocket science, nor is it arcane knowledge to which only land surveyors are privy. But it is basic mathematics that was not adhered to by whoever was responsible for each of these two conveyance plans.

It should be remembered that the quality of a dimension stated in a deed is determined by the measurement technology and measurement methods used. The quality of a badly measured dimension is not magically improved by its appearance in a legal document. Nor does its quality magically improve simply because Land Registry has seen fit to make and retain a copy of that legal document. It must also be remembered that Land Registry's role is simply to compile a register based on information supplied to it by applicants and that historically, at least until the advent of Determined Boundaries, Land Registry has exercised little or no quality control over the information it has received and placed on the register.

The fact of the matter, and it is generally applicable to the vast majority of conveyances, is that dimensions were poorly measured and that no thought was given to providing sufficient measurements so that the dimensions could be mathematically checked to confirm their veracity. Dimensions given in conveyances should always be treated as being unreliable unless they are corroborated by some other evidence.

 

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  FREQUENTLY ASKED QUESTION  
    
Fences, age of: How can I find out the age of my wooden fence?

If it was you who ordered a fencing contractor to erect the fence, and if you keep detailed records of household expenditure, then the invoice presented to you by the contractor is the most reliable, even conclusive, evidence of the age of your fence.

If you have no invoice, then if you have two photographs in your family photo album that show the fence in the background, and if the photos reveal two physically different fences, then the fence must have been erected at some date between the dates on which the photographs were taken. So now all you have to do is to work out the dates on which the photographs were taken.

If your family photo album doesn't help, then there is some chance that you may be able to discover aerial photographs taken on different dates showing different fences. Again, the fence will have been erected between the dates of the two photographs.

It is tempting to think that a dendrochronologist would be able to help. Of course he will be able to analyse the tree rings and determine the dates during which the tree (from whose wood the fence was made) was growing, but this is not the same as determining the date on which the fence was erected.

 

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  FREQUENTLY ASKED QUESTION  
    
Fences, appearance of: Must the smooth side of my neighbour's fence face towards me? My neighbour is in the process of erecting his new fence, and he has started putting it up so that the smooth side faces towards his own house. Is he allowed to do this?

There is no law that says the smooth side of the fence should face the neighbour.

If your neighbour pays for a fence that he erects on his own land (even if he builds the fence so that the outer face of it, as seen from his land, runs along the boundary) then he is entitled to choose the style and colour of the fence, as well as whether he places the smooth side of the fence to face in towards his own house or out to face your house.

 

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  FREQUENTLY ASKED QUESTION  
    
Fences as supports: Can I hang things on my neighbour's fence?
Fences as supports: Can I use my neighbour's fence as a support for my own plants?
Fences, appearance of: Can I paint my side of my neighbour's fence?

Only if your neighbour gives you permission to do so.

Leaning things against your neighbour's fence, hanging things on your neighbour's fence, even using your neighbour's fence as a makeshift retaining wall, will place a much heavier burden on the fence panels and supporting posts than they were designed to bear. The consequences of such actions are easy enough to predict and you will be liable for the cost of any repairs. On top of that you will still have to do, and pay for, the work that you did incorrectly and which resulted in the damage to your neighbour's fence.

In short, anything you do to your neighbour's fence without your neighbour's permission
- including staining, painting or applying preservative to your side of your neighbour's fence -
amounts to criminal damage.

 

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  FREQUENTLY ASKED QUESTION  
    
Fences, appearance of: What can I do about the unsightliness of my neighbour's fence?

Unless your neighbour agrees, you cannot:
  • paint, stain or varnish your neighbour's fence to make it a more attractive colour;
  • affix close boards or panels to your face of the fence in order to conceal the support rails;
  • attach trellis or some other system to support plants that you wish to grow up your side of your neighbour's fence.
What you can do is:
  • plant free standing shrubs or a hedge to conceal the fence from your view;
  • erect your own fence alongside your neighbour's fence.

 

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  FREQUENTLY ASKED QUESTION  
    
Fence height: How high a fence can I put on my boundary?

The height of fences is a matter of planning policy. To find out what is allowed in your area contact the local authority planning office. As a general rule, fences in rear gardens are allowed to be up to 2 metres high.

 

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  FREQUENTLY ASKED QUESTION  
    
Fence height: Can I make my neighbour reduce the height of his fence? My neighbour's fence makes my garden very dark beacuse his fence is high and his garden is on higher land than mine.

If your neighbour's fence is within the height limits set by your local authority, when measured from the ground on which it stands (not from the level of the ground on your side of the fence) then there is nothing that you can do about it.

If your neighbour was to reduce the height of his fence, from say 1.8 metres to 0.9 metres, then you would find there was an issue of privacy within your land as your neighbour would easily see over the top of such a low fence.

 

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  FREQUENTLY ASKED QUESTION  
    
Fence ownership: Who owns which fence? Is it true that every house owns the fence on its left side, as you look at it from the street?

There is no general rule about whether you own the fence on the left or the fence on the right of your property. The truth of the matter is this: it is the vendor who breaks up the land into smaller parcels before selling each parcel individually who assigns responsibility for the boundaries of the new land parcels that he creates. If he remembers to do so, then he will identify in the conveyance deed (or the transfer deed) the boundaries for which the purchaser is responsible.


Consider the picture above. It shows four houses, numbers 32, 34, 36, 38. Notice that, between them, they have five flank fences (shown in red). One of these four houses, therefore, must be responsible for both its flank boundaries.
  • This might mean that all of the houses are responsible for the boundary on their left and one of them is also responsible for the fence on its right;
  • or it might mean that they are all responsible for the fence on their right whilst one of them is also responsible for the fence on its left;
  • but it doesn't tell us which house is responsible for the boundaries on both sides;
And who owns the rear boundaries? Numbers 32 to 38, or the houses in the parallel street behind?

 

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  FREQUENTLY ASKED QUESTION  
    
Neighbour's fence: What can I do when my neighbour won't repair his fence?

If the question you are asking is: How can I make my neighbour repair or replace his fence? then my answer is that you most likely cannot force him to spend money on his fence if doesn't want to. It is, after all, his fence and if he wants to let it rot away then that is his choice.

Don't forget that there is no general obligation in law that requires him to fence his boundaries, so you cannot depend on the forces of law to make him change his mind.

There is no point instructing a boundary demarcation and disputes expert to write a report with which you are hoping to remind your neighbour that he should repair the fence: if he doesn't want to spend money on his fence then he will not listen to your expert. So you would be wasting your money, quite possibly as much or more money than it would cost to pay for a new fence.

So what can you do?

You could do nothing and just watch the fence rot away.

You could leave the old fence exactly where it is and erect your own fence right alongside of your neighbour's fence. So there are now two fences, one on your land and one on your neighbour's land. The boundary, being a line of no thickness, would then run between the two fences even if those fences are touching each other.

 

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  FREQUENTLY ASKED QUESTION  
  

Boundary Definitions: Where is the boundary of my open plan front garden? I have always, and certainly for more than twelve years, mowed my front grass right up to the edge of my neighbour's driveway. I say that all of this grass is mine, but he claims that the three feet of grass nearest to his driveway belongs to him. Which of us is right?



Your neighbour is almsot certainly basing his claim on the position of the boundary shown on the transfer plan (or the conveyance plan) for his property. This boundary is almost certainly in the same position as the boundary shown on the transfer plan (or the conveyance plan) for your own property. Your neighbour is therefore the paper title owner to the three feet of lawn that you are claiming as yours.

The only basis for your claim to ownership of this three feet of grass lawn is presumably adverse possession on account of your cultivation of the lawn over a long period of time. Cultivation is an appropriate act of ownership. Unfortunately, in order to demonstrate adverse possession you must also demonstrate factual possession of the land. In order to do this you must enclose the land so as to exclude both the world at large and the rightful owner in particular. The covenant that makes your front garden open plan, which will certainly be included in your transfer deed (or conveyance), prevents you from enclosing your front garden and thus prevents you from demonstrating factual possession of part of your neighbour's front garden.

Your neighbour is correct because it is impossible to adversely possess a part of your neighbour's open plan front garden.
 

 

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  FREQUENTLY ASKED QUESTION  
    
Title Deeds: Where do I find my title deeds?

If you own unregistered land then you will need to see your title deeds in order to discover whatever information they hold about your land.
 
If you own registered land then you will find that - because Land Registry's title plan:
  • does not tell you the exact position (only the general position) of your boundaries,
  • cannot be relied upon for scaling the dimensions of your land,
  • and normally does not tell you for which fences you are responsible
- you need to refer to your title deeds (often referred to as the pre-registration title deeds) to see if they hold any of this information. Sometimes the title deeds are, as lawyers are fond of saying, "silent on these matters."
 
So, where do you find your title deeds? Well, that depends on the circumstances.
 
If you own unregistered land and have no mortgage then you may either hold the title deeds or you may have deposited them at a bank or with a solicitor for safe keeping.
 
If you own unregistered land and have a mortgage then your mortgage lender will be holding the title deeds as security against the mortgage loan. Your mortgage lender will be happy to supply you with a copy of the title deeds but will charge you a fee for doing so.
 
If you own registered land and have a mortgage then your mortgage lender may still be holding the pre-registration title deeds and will be happy to supply you with a copy of them but will charge you a fee for doing so.
 
If you own registered land and have a mortgage then your mortgage lender may have decided that the pre-registration title deeds are not needed as security because title to registered land is guaranteed by the state. In this case the mortgage lender may have returned the title deeds to you or may simply have destroyed them.
 
If you own registered land and have no mortgage then you may either hold the pre-registration title deeds or you may find that they were destroyed by someone else long before you bought the property.
 
If you own registered land and the title deeds have been destroyed then there is still some hope, but only some.
      When someone applies to Land Registry to register their title to a piece of land then they have to show at least some of the pre-registration title deeds to Land Registry to prove that they have title to that land. Sometimes Land Registry simply inspects those pre-registration title deeds and then returns them to the applicant - in which case no-one now holds the pre-registration title deeds because they have long since been destroyed.
      But sometimes Land Registry sees fit to make a copy of a deed that it sees as important and in some way definitive as to the land in the registered title. In these cases, if you are in possession of the Title Register for that title, you will see a reference to the deed followed by a note beneath the entry that says something like NOTE: Copy in Certificate or NOTE: copy filed. Such a NOTE is, in effect, telling you that you can purchase an official copy of the referenced title deed.
 

 

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  FREQUENTLY ASKED QUESTION  
    
Title deeds: Is it possible for me to see my neighbour's title deeds?

There are three different answers to this question. No. Maybe. Yes.
 
No, because in normal circumstances your neighbour is under no obligation to show you what amounts to private infomation, the title deeds to the land that he owns.
 
Maybe, because Land Registry operates an open register, and every citizen is entitled to purchase a copy of the title register and title plan for any registered title in England and Wales. So if you buy the title register for your neighbour's property, and if that register makes reference to a deed followed by a note beneath the entry that says something like NOTE: Copy in Certificate or NOTE: copy filed then you know that you can purchase an official copy of the referenced title deed.
 
Yes, if you are going to Court in a litigation against your neighbour, and if your neighbour's case relies upon information contained in a title deed, then the law requires him to disclose that title deed to you (in fact, he is required to disclose to you any evidence on which he seeks to rely in his case against you).
 

 

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