With unregistered land it is quite simple - the description of the boundary is to be found in the earliest conveyance deed or transfer deed that deals with the present piece of land: this describes the boundaries of the land that the vendor intended to sell to the purchaser. The description may take the form of words in the deed, or it may be illustrated by a plan that is bound into or attached to the deed.
Problems
can arise if the plan and the wording of the deed are not in full
agreement with each other, but these can be resolved
-
if the deed contains words that give the words precedence over the
plan [... that is for the purposes of identification only shown
in the plan attached hereto ...]
-
or if the deed gives the plan precedence over the words [... that
is more particularly delineated in the plan attached hereto
...]
Problems can also arise if either the conveyance plan or
the words of the deed are demonstrably inaccurate. If a dispute
attributable to such an inaccuracy reaches court, then the
court will seek to try and establish the intentions of the vendor
at the time the deed was written.
Most owners of registered land assume that their boundaries are defined by the Land Registry title plan. This is not the case. Land Registry can only record their interpretation of the boundaries descriptions that they find in the pre-registration conveyance deeds. There is a long British tradition of conveyances containing very inadequate descriptions of the boundaries of the land being transferred. Why is this? Cost! It costs good money for a surveyor to draw an accurate plan and to adequately describe in words a boundary, so vendors don't describe properly the boundaries of the land they are selling. When the time comes for the land to be registered, Land Registry has a problem, from which they are rescued by the concept of general boundaries: this allows them to show only the general position of the boundary.
Witness
the caution that is placed at the foot of every 'official copy' of
every title plan that has been issued since the Land Registration
Act 2002 came into force:
"This title plan shows the general position of
the boundaries: it does not show the exact line of the boundaries. Measurements
scaled from this plan may not match measurements between the same points on the
ground." This statement tells us two things:
- that Land Registry title plans are not the authoritative source of precise definitions of boundaries; and
- that the maps on which the title plans are based are not accurate enough to permit the precise identification of a boundary's position.
I have every sympathy with Land Registry regarding the difficulties it encounters when trying to record the positions of boundaries, but all too often I come across examples, like the one below, where there is clearly a line on the Ordnance Survey map that better reflects the position of the boundary than the line chosen by Land Registry to represent the general boundary.
|
|
|
|
Conveyance
plan: note that the northern |
Land Registry title plan
of the same property: |
Because of the general boundaries rule, and because of examples like the one above, the general boundary shown on the Land Registry title plan MUST NOT be confused with the true position of the legal boundary as defined in the title deeds (ie. the conveyance deeds or transfer deeds that accompanied the sale of the property and in which the boundaries of the present parcel of land were first defined).
So if you want to establish the position of the boundary of a piece of registered land you have to (just as you do with unregistered land) refer back to the original conveyance (or transfer) deed.
It is
an interesting fact that the Land
Registry Act 1862 required the boundaries of
registered properties to be defined precisely. Because
most owners did not know the precise positions of
their boundaries, their attempts to register their
titles to their properties created a large number of
boundary disputes. To overcome this problem, the 1862 Act was replaced
by the Land Transfer Act 1875 which removed the
requirement to ascertain boundaries to the nearest
inch and gave us the "general boundaries" rule. So the
red edging of the title plan only indicates the
general boundary and does not define the boundary
itself.
|
The published article, Centenary of co-operation between Ordnance Survey and HM Land Registry, deals with some of the history of property boundaries in England & Wales. |
Land Registry title plans are based
on Ordnance Survey maps, which show the natural and
man-made features of the landscape. Ordnance
Survey is not required, as part of the mapping
process, to ascertain property boundaries. It is
therefore not safe to assume that a line on the
map is the property boundary just because it
appears to surround the property. Nor should you assume that the Ordnance
Survey map is inch
perfect.
Legal
presumptions, such as the "hedge and ditch"
presumption and the presumption that a property
extends to the centre of the road it fronts onto
(unless the ownership of the road is separately
demonstrated) mean that you sometimes cannot rely
on the line on the map being the boundary at all.
Badly drafted conveyance deeds (or transfer deeds)
sometimes only confuse anyone trying to establish
the position of a boundary.
So,
Land Registry does not ascertain the precise positions of property
boundaries, but it records property extents using maps whose lines
represent physical features that may or may not be (or be related
to) property boundaries and which in any case may be shown
a little way out of their correct position. So it is foolhardy
for anyone to argue that the line on the Land Registry title plan is the boundary.
It is perfectly possible for two neighbours who are unsure of the true position of the boundary that separates their land to make an agreement between themselves as to the position of a line that they will henceforth recognise as the boundary. If they apply jointly to Land Registry then that agreement will henceforward become the definition of the boundary.
Why do boundary disputes arise?
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. But the landowners should not shoulder
all of the blame. Conveyancing practice routinely produces boundary
descriptions of an appallingly low standard, with sometimes misleading
plans of the boundaries. The power of the law is felt only in the
courtroom, there being no equivalent authority 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 mediation and arbitration,
whilst the office of Adjudicator to HM Land Registry is still too
new for its impact on boundary disputes to be assessed yet. 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 is probably worth only one thousand.
|
For a more in-depth discussion of the causes of boundary disputes, CLICK HERE |
A number of factors influence the way in which you can use Ordnance Survey maps (and the Land Registry title plans that are based on them) in a boundary dispute.
Scale may make objects appear larger on the map than they are on the ground. For example, a standard larch-lap panel fence is usually supported on posts 75 mm (3 inches) wide. Such a fence will be represented on the map by a line 0.2 mm (1/125 inch) wide. At 1:1250 scale that represents 250 mm (10 inches) on the ground, whilst at 1:2500 scale it represents 500 mm (20 inches) on the ground, and not the 3 inches of the actual fence!
Scale should also make you cautious about measuring something from the map. A measuring error of half a millimetre (1/50 inch) on a 1:1250 scale map will produce an error of 625 mm (about 2 feet) on the ground.
Relative accuracy is a measure of how faithfully the map portrays the relative positions of objects within the same map. Ordnance Survey's own tests of the accuracy of their maps tells us that in the case of their 1:1250 scale maps we can with 68% confidence expect objects to be shown in their correct positions ±0.4 m (16 inches) relative to other objects up to 60 m (197 feet) away, but for 99% confidence that figure rises to ±1.0 m (39 inches). On some of their 1:2500 scale maps the corresponding figures are ±1.2 m (4 feet) at the 68% confidence level and ±3.0 m (12 feet) at the 99% confidence level between objects up to 200 m (656 feet) apart. It is asking too much of anyone to tie down a boundary's position to the nearest centimetre when working from maps of this accuracy.
Because of lack of space, some features are omitted (in a process of selection) because they are deemed insufficiently important to show. Thus where a hedge and ditch run alongside each other it is the hedge and not the ditch that is shown. Buildings covering less than 8 sq m (86 sq ft) are omitted.
Again because of a lack of space, generalisation may move important features apart so that they can be separately shown. The minimum distance between two features on a 1:1250 scale map is 1 m, and on a 1:2500 scale map is 2 m. I have come across an example of two detached houses with a 0.55 m gap between them being shown on the map as a semi-detached building.
Map interpretation: Further complications can arise because published (as opposed to digital) Ordnance Survey maps use the same line symbol for a wall, fence, hedge, bank, ditch and stream, making it sometimes difficult to know just what the line represents.
Correct interpretation of the map can only be achieved by taking the map onto the site and comparing it with the features on the ground to decide what has been shown, what has been omitted, what has been deliberately moved out of its correct position for the sake of clarity, and what has been shown in the wrong position because of inaccuracies in the survey that produced the map.
A
correct interpretation of the map
usually concludes that the line on the map
identifies the physical feature to
which the boundary is related, and it
is the position of the actual feature
on the ground - not the position of
the line on the map - that is
important in attempting to trace the position
of the boundary. Even then, the general
boundaries rule means that the
line on the map may not be the legal
boundary.
|
For a more in-depth discussion of map accuracy, CLICK HERE |
What you should do
If you have difficulty in relating
the map to what is on the ground,
consult a chartered land
surveyor.
How
accurate is Land Registry's title plan ?
There are
four things that affect the accuracy
of the information shown on an HM Land
Registry filed plan:
1
. The accuracy of the underlying
Ordnance Survey map (see above);
2
. The possibility that the General
Boundaries Rule may cast further doubt
on the map positions;
3
. The quality of the information
supplied to HM Land Registry;
4
. The accuracy with which HM Land
Registry have interpreted the
information whilst applying their red
edging to the map.
I have seen title plans that:
a
. leave a gap between properties
(where you would expect no gap to
exist);
b
. show an overlap between properties
(which cannot legally happen);
c
. show a property as extending only to
the edge of a road even though the
conveyance states that it extends to
the centre of the road.
d
. faithfully reproduce the conveyance
plan, which in turn is based upon the
sales plan, which carries the warning,
"This plan is published for the
convenience of Purchasers only. Its
accuracy is not guaranteed". A
detailed survey of the physical
boundaries more than 20 years after
the sale in question, not
surprisingly, showed the boundaries to
be up to 4.25 metres (14 feet) away
from the positions shown on the
conveyance plan and filed
plan.
To be fair, these kinds of problems with filed plans are the exception rather than the rule, but in some cases they are at the root of the boundary problem.
A
much more common problem is:
e
.
the title plan based on the developer's layout plan, which differs
both from what was actually built and from the Ordnance Survey map
of the same area.
What you should do
Check the title plan for your
property with any other relevant
documents you can find. These include
the HMLR register entry for your
property, old conveyance deeds and
conveyance plans for your property,
and similar documents relating to
neighbouring properties.
If you are unable to determine where
your boundary is, or are unable to
persuade your neighbour to agree to
your understanding of where the
boundary is, then you will need
professional advice.
|
The published article, Digital boundaries in England & Wales , contains some examples of how to interpret a boundary (or of the difficulties in trying to do so) from an HMLR filed plan and from the Ordnance Survey map on which it is based. |
Precisely locating your boundary
You most
probably cannot locate a boundary to the
nearest millimetre, or even to the nearest centimetre, because of
- the
limitations of the Ordnance Survey map;
- the "General
Boundaries" rule,
- more importantly,
the limitations of the boundary description in the conveyance deed
and plan.
The legal
boundary dividing two properties
is an invisible line, having no
thickness, and it is unlikely to be
precisely identified either on the
ground or in the title deeds.
The
physical boundary is a physical
feature, such as a hedge or fence,
that may have been intended to follow
the legal boundary, but the precise
extent of land ownership may not be
entirely clear from the position of
the physical boundary (is it in the
middle, or on one side or the other of
the hedge?).
The registered boundary is described thus in the Land Registration Act 2002:
| 60 | Boundaries |
| (1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section. | |
| (2) A general boundary does not determine the exact line of the boundary. |
Under
previous legislation a general boundary was described thus: "...the exact line of the
boundary will be undetermined - as,
for instance, whether it includes a
hedge, wall or ditch, or runs along
the centre of a wall or fence, or its
inner or outer face, or how far it
runs within or beyond it; or whether
or not the land registered includes
the whole or any portion of an
adjoining road or stream".
You cannot tell from the Land Registry title plan, or from the Ordnance Survey map, precisely where the boundary is. You may have great difficulty in finding out from the conveyance deed and plan precisely where the boundary is. And as the section 'So, where is the boundary?' demonstrates, even a close examination of the physical features leaves plenty of scope for doubt.
What you should do
You should try to agree a compromise
with your neighbour because, if you
are arguing over a strip of land that
is only inches wide, it is quite
possible that no amount of
professional advice will determine the
true position of the legal
boundary.
If you are unable to reach such a
compromise, then professional advice
will provide a third, and impartial,
opinion as to the position of the
boundary. It would be wise to accept
this as the basis of a settlement with
your neighbour: the alternative is a
very expensive court
case.
Whose fence is it ?
The only sure
way of knowing who owns the physical
feature used as a property boundary is
if its ownership is stated in your
title certificate or deeds of
conveyance. It may be expressed in
writing, but it is sometimes shown on
the plan instead by a T-mark:
this takes the form of a letter "T",
repeated around the edge of the
property, with the base of the "T"
against the boundary and the whole of
the "T" inside the property that owns
the fence. If neither owner can find
such evidence, then you cannot tell
who owns the fence or is liable for
its repair.
If the deeds
are silent on the question of
ownership of the boundary then you
may have to work on the basis of the
information given in the seller's
property information form by the
vendor at the time you bought your
property.
It is
sometimes possible to infer who is
responsible for a fence by
establishing the pattern of fence
ownership along the same side of the
street.
The principle
that "the tidy side of the
fence faces the outside world
whilst the structural or less
attractive side faces its owner"
cannot be relied upon to identify the
owner.
There is
no law that I am aware of that says
the structural side of the fence must
face the fence's owner. In fact, for
close-boarded fences it is more
appropriate for the supporting rails
to face the neighbour. This is because
when it comes to maintenance, the
boards will be prised onto the fence
owner's land rather than pushed onto
the neighbour's land with implications
of encroachment and issues of
safety.
What you should do
When the time comes to replace a
decaying fence whose owner cannot be
definitely identified, he who is
willing to pay for the repairs is the
one who dictates what the new fence
will look like (within any constraints
of planning regulations or restrictive
covenants).
Hedges
and Ditches
If it is not
clearly stated in your deeds or title
documents, there is a legal
presumption that where two properties
are divided by a hedge and a ditch,
the property boundary is presumed to
be on the opposite edge of the ditch
from the hedge. This is based on the
principle that the owner would have
stood on the boundary facing toward
his own land, dug the ditch on his own
land, piled the spoil on his home side
to form a bank, and planted a hedge on
the bank.
There are
exceptions that might override this
legal presumption, such as when the
land (strictly speaking, only part of
it) is subsequently sold and the
conveyance and/or plan specifically
refers to the line shown on the
Ordnance Survey map (usually the hedge
atop the bank).
What you should do
If you are in any doubt, consult a
chartered land surveyor.
Squatter's Rights, or
Adverse Possession
Please
refer to the GLOSSARY
page for an update of the situation following the Land Registration
Act 2002
Adverse
possession refers to the
occupation of land against the
interests of the real owner by someone
who does not have title to it. The
adverse possessor, or squatter, must
intentionally possess the land (and
prevent both the world at large and
the rightful owner from using it) in a
way that is adverse to the interests
of the proper owner (ie. he must not
be holding the land as a tenant or
licensee) and he must act as if he
were the occupying owner and
demonstrate that no-one else has so
acted.
It is
possible for a squatter to obtain
title by adverse possession if the
owner has failed to demonstrate his
ownership of the land for a prescribed
period (usually 12 years). For
example, if your neighbour takes
possession of part of your land,
fences it off, locks any access gates
(to prevent you enjoying its use) and
"cultivates" or otherwise uses it for
the prescribed period as if it was his
own, then he might eventually be able
to have the annexed land legally
transferred to him.
It is your
responsibility as a landowner to
prevent wilful encroachment
upon your property. If you fail to do
so, or fail to take action to recover
any land encroached upon, within the
period prescribed by the Limitation
Act then you are in very grave danger
of losing title to the affected
land.
Gaining
repossession of your own land
once it has been encroached upon is a
difficult and serious matter and
should not be undertaken lightly.
There are only two actions you might
contemplate:
a. Physically repossess
the land. This is not an action to be
undertaken lightly because you will
have to be prepared to defend the land
against counter-measures by the
squatter. It will require the removal
of any fences and/or other perimeter
features erected by the squatter, and
the erection by you of fencing or
other perimeter features on the
correct boundary alignment.
The danger in attempting to repossess
your land is that your neighbour will
call in the police on the grounds that
you are causing criminal damage to his
fence. The police are concerned with
criminal law, not civil law, and won't
understand the boundary problem. The
result is that they will treat you,
and not the encroaching neighbour, as
the party that is in the
wrong.
b. Commence a legal
action. Get a chartered land
surveyor's opinion on where the
boundary is and ask your solicitor to
write a strongly worded letter to your
neighbour, with a view to taking your
neighbour to court (there is always a
chance your neighbour will back down
when faced with the threat of court
action).
What you should do
Engage a chartered land surveyor to
investigate the encroachment and
advise you whether or not the squatter
has an unassailable case. If he has
not and the surveyor so advises, then
discuss with your solicitor the pros
and cons of repossession and of
commencing a legal action.
What you should NOT do
You should not even consider writing
to the encroacher to politely ask for
the return of your land unless you are
prepared to immediately follow up his
reply with either repossession or the
commencement of legal action. Your
letter would be taken by a court as
confirmation by you that the
encroacher was in fact in possession
of your land adverse to your
interests, and this would only serve
to strengthen your neighbour's
claim.
When the land and the plan don't match !
Apart from adverse possession, there are two other reasons why the land you occupy might appear to be less than the land which, on paper, you own.
1
. Your land is smaller than the
dimensions stated on the conveyance
plan for your property. Often such
dimensions, where they exist, are a
reliable indicator, but when they
don't fit the physical extent of the
land it may be because the dimensions
themselves are in error. If maps made by
an organisation with such a high reputation as Ordnance Survey are prone to small
errors, why should anyone think that dimensions not?
After all, we do not know whether the dimensions
were scaled from a plan or measured on the ground. Even if they
were measured on the ground then we don't know who measured them,
how they were measured, or whether they represent a horizontal distance
or a distance measured along sloping ground.
2
. In the case of housing estates, the
developer may have registered your
land using a conveyance plan that is
essentially a copy of the planning
drawings for the estate. It sometimes
happens that the roads, houses, and the
fences are built in positions other
than those shown in the planning
drawings, with the result that the
conveyance plan, and the Land Registry title plan,
do not reflect the reality of what is
where on the ground.
The easiest way out of this kind of muddle is to accept that the first owner
of the property was sold the land bounded by the fences that were
emplaced by the builder at the time. To do so is to accept
that the map is a mere representation of what is actually on the
ground and that in the present case the map is in error - rather
it is bound to be in error having been drawn before the houses,
roads and fences it portrays were actually built. To take the alternative
view is to demand that every single fence on the entire estate be
examined and if necessary moved. This would inevitably require the
demolition and rebuilding of any houses that straddled the 'corrected'
fence lines.
What you should do
Ideally, you and your neighbour should
recognise that this is a problem caused by neither of you that affects
both of you and should jointly instruct a chartered land surveyor
to investigate the situation and recommend a solution. This solution
may be that you leave the fences where they are. Or the surveyor
may recommend some other solution. Either way, provided that you
and your neighbour can agree the surveyor's solution, or amicably
negotiate some other solution between yourselves, then you should
ask the surveyor to record a 'determined
boundary'
(see below) with Land Registry that reflects the solution and agreement
you have reached.
So, where is the boundary?
If you have found the evidence to
prove that you are responsible for the
boundary in question then you can
usually assume that the legal boundary
(the line of no thickness) is to be
found on the outer face of the
physical boundary feature. But life is
not always that simple. Consider the
cross section of a typical,
brick-built garden wall, at right.
Just where is the boundary?
[I am not telling you the answer,
because it will vary from property to
property and could be any or none of
the options
offered.]
If the boundary follows the side of a building, then the conveyance may include an easement to allow the eaves and gutters to overhang, and the footings to encroach beneath, the neighbour's land. In this case you can be sure that the outer face of the wall of the building is where the legal boundary is to be found. But if there is no such easement, then does the boundary follow the face of the wall or the outer edge of the eaves?
Fences, at first sight, are quite straightforward. But there are many cases where the owner responsible for a particular boundary cannot be identified from a title certificate or a conveyance deed. And then there are cases where a fence that was intended merely to control livestock (rural situations) or to contain dogs within their owner's garden (urban) might be mistaken for a boundary fence. There are also cases where fences that appear to define front boundaries are in fact placed back from the boundary because of a restrictive covenant preventing any structures within a certain distance of the edge of the road. If you are certain that the fence is in fact on the boundary, and you can identify the owner of the fence and confirm that he is the party responsible for that boundary, then the legal boundary will usually be on the outer face of the fence. The same reasoning applies to walls.
Hedges create many problems for someone trying to locate a boundary. Unlike walls and fences which, once erected, do not change their thickness, a hedge grows every year, and is usually trimmed by its owner or by the people living either side of it. Its thickness is therefore constantly changing. The only constant about a hedge is the "root of hedge" - a line drawn to join up all of the points at which the plant stems rise from the ground. It would be unusual for the "root of hedge" to form a boundary unless the hedge was specifically the joint responsibility of both neighbours.
Hedges are often found close to other features which more usually define the boundary. See "hedges and ditches", above. It is common for a hedge to be grown behind a dwarf wall on the frontage of an urban property, or beside a wire fence separating two rear gardens, but again be sure that the fence is not there merely to control dogs.
In a hedge and ditch scenario, the position of the boundary is as precise as the position of the outer rim of the adjoining ditch. But even here, there have been cases where a parcel of land was sold by describing it as the field carrying a particular field number on the Ordnance Survey map. As the line on the map surrounding that field represents the centre of the hedge, it is taken that the boundary is the centre of the hedge and that the vendor (and usually the vendor doesn't know this) still owns the ditch beyond the hedge.
If the hedge is at least 150 years old and can be identified as having once followed the boundary of a country estate, then there may be local customs that dictate where the boundary lies in relation to the hedge. The Public Record Office holds the fieldbooks of the surveyors who surveyed the county, district and parish boundaries in the latter half of the nineteenth century. In these can be found statements that it was the custom in a particular parish for the boundary to be at a fixed distance (often three feet or four feet) from the root of the hedge. This explains the annotations found on Ordnance Survey maps describing the parish, district or county boundary as "3ft RH" (3 feet from Root of Hedge), "4ft RH", or their metric equivalents.
If the hedge is neither 'hedge and ditch' nor the boundary of a former country estate, then it is assumed that the hedge was planted on the land of the hedge's owner. But how far from the boundary of the land? There is no legislation concerning the positions in which hedges may be planted, so it is essentially anyone's guess. In one case I suggested that the hedge must have been planted at some small distance from the boundary (say, one or two feet) to give room for growth, but my client's barrister insisted that the boundary was just beyond the root line of our mutual client's hedge.
Some properties are bounded by rivers, coastlines, clifftops, lake shores, all of which are features that are prone to natural movement, causing further complications for the landowner.
What you should do
If you have any difficulty in
understanding where your boundary is,
consult a chartered land
surveyor.
Old maps
It is sometimes necessary to consult old maps in order to establish some fact relating to a boundary - or to a right of way. Copies can be made to order from old editions of Ordnance Survey maps. For even older maps, a visit to your local county records office may turn up interesting and relevant maps that pre-date those that Ordnance Survey have published.
Photographs,
Photographs may be divided into aerial and terrestrial photographs.
Aerial photographs are photographs taken from aircraft and may be further sub-divided into vertical and oblique photographs.
Vertical
air photos are survey standard photographs taken with the camera
pointing vertically down from the aircraft. They are usually taken
at a sufficient height for the resulting image to be at the relatively
small scale (for boundary dispute purposes) of 1:10,000 or
1:20,000. In spite of this, because the cameras use 9 inch
(225 mm) wide film (compare that with the 35 mm film used by
most cameras before the advent of the digital camera), enlargements made from
the air photos contain an enormous amount of information that is
valuable to the analysis of a boundary dispute.
A major
feature of this kind of photography is that it is flown in long
lines with individual photographs overlapping their predecessor
and their successor by at least 50%. By simultaneously viewing the
overlap area of two photographs using a stereoscope (like the one
in the picture at right), the features on the ground can be viewed
in three dimensions.
Vertical air photos have two big advantages
over maps:
- the date on which the photograph was taken is known precisely
and you can be certain that everything you see on the photo was
in fact present on the ground on that date;
- air photos show everything (unlike the selection of detail - determined
by the map's specification - that is included in the map).
Vertical
air photos also have some disadvantages:
- overhanging trees,
or eaves,
can obscure from view the detail that you want to see;
-
the unusual vertical view makes it difficult for inexperienced users
to properly interpret what they are seeing;
- the view is vertical
only at the centre of the original air photo; as you get further
away from the centre then the viewing angle becomes increasingly
oblique, resulting in buildings and other vertical structures appearing
to lean away from the centre of the photograph hiding whatever stands
close behind them:
- air photos do not show abstract information,
such as place names, road names, house numbers, and the positions
of parish boundaries.
Where the photograph is a view of flat ground it is possible for a land surveyor to take approximate measurements from the photograph to ascertain roughly where features once stood that are no longer extant. A photogrammetrist, with his specialist equipment, can obtain better results from the air photographs than a land surveyor, but it will cost more to do so.
Oblique air photos are photographs taken with a camera pointing obliquely down from the side of an aircraft. They are usually taken with high quality professional cameras using 2¼ inch film. There are firms who specialise in speculatively taking oblique aerial photographs of houses and then knocking on the doors of those houses in the hope that the owners would like to buy the photograph. Such photographs can be useful as a record of what features were present on the ground at the date the photograph was taken. Because of the oblique angle of view it is not possible to take measurements from the photographs.
Terrestrial photographs are photographs taken from a ground position, whether the camera is hand-held or tripod mounted, and regardless of whether the photograph is taken from near to the ground or from a vantage point such as a hill, an upper floor window or a step ladder. The richest source of terrestrial photographs for use as evidence in a boundary dispute is the client's family photo album. Very often a fence or hedge or tree will show up in the background of a photograph taken for some purpose other than recording where the boundary features are. If a reasonably reliable date can be placed on the photograph then it has value as evidence. The date could be established because the photograph was taken on the day that the client had a garden party to celebrate Uncle Fred's 75th birthday, or because it shows little Susan when she was only 2½ years old. The value of the photograph is then in its record of what features were present at the date of the photograph, and perhaps in a rough estimate of the relative positions of features - but only a rough estimate as it is almost always impossible to derive accurate measurements from terrestrial photographs.
Property sellers information form
If you have been unable to find the necessary information in the title deeds, then the property seller's information form, that was prepared by the vendor for the benefit of the purchaser, may contain useful information. This may take the form of statements that a particular fence belongs to, or a particular hedge has been maintained by, the vendor. Whilst this is not definitive information, it is the next best thing. Can it be relied upon? Given that there have been successful prosecutions of vendors who have failed to disclose all of the relevant facts (such as failing to disclose an on-going right of way dispute relating to the property), there is little incentive for the vendor to mislead the purchaser.
Planning drawings
Occasionally, a planning drawing will show a boundary line, although there is no obligation for such lines to be included on such drawings. Indeed, one has to be sceptical about boundaries shown on such plans because it is not the purpose of such plan to show boundaries, and the plan will have been drawn by someone who is not expert in boundary matters. However, if the plan shows the accurate positions of fences and hedges in relation to an existing building then it will provide useful evidence in an analysis of the boundary.
Recollections of nearby long-term residents
For lack of documentary evidence, it is not unusual to take into consideration the recollections of a local resident who has lived nearby for many decades. Such a person may be able to furnish the information that it was Mr Jones at No. 24 who planted that hedge back in 1938 and not his neighbour Mr Smith at No. 26. This information may be reassuring to Mr Campbell, who now lives at No. 24 and is in dispute with Mr Fraser who now lives at No. 26. The information will have real value as evidence if the long term resident is prepared to write it down in a statutory declaration that is sworn before a Commissioner for Oaths.
Patterns along the same street
For lack of any other information, it may be possible to establish a pattern along a street. This could be based on verbal statements that each of the other neighbours believes they are responsible for the fence on a particular side of the house. Or it could be based on a visual examination of the fences in other properties: if these all face the same way then it is possible they are the responsibility of the property that looks at the rear or rough face of the fence rather than at the smooth face.
Agreed and 'Determined' Boundaries
Land Registry has long recognised that there would be circumstances in which the lack of precision associated with a general boundary would be unacceptable to a landowner. The facility to 'fix' boundaries was offered. Maybe it was too cumbersome, maybe it was too expensive, maybe landowners failed to see the point of it, but estimates of the number of fixed boundaries on the register vary between 17 and about 50, which is virtually nothing when compared to the millions of titles on the register.
Land Registry has also accepted onto the register 'Boundary Declarations' or 'Boundary Agreements'. These usually take the form of a plan of the boundary, often only a sketch map but annotated with dimensions and the relationship of the boundary to identifiable enduring features - the intention being to relate the boundary to features that are not shown on the standard Ordnance Survey map in order to better locate the boundary. Provided that both landowners sign a memorandum to authenticate the plan, then Land Registry is willing to note such an agreement on the register and to make copies of it available to anyone who wants to see it.
The Land Registration Act 2002 provides for the recording of 'Determined boundaries'. This is meant to provide the precision and certainty of a fixed boundary, but without the perceived difficulties. The aim is to record a boundary's position to a precision of 10 mm. Such a precision cannot be guaranteed without unwarranted expense, so the determined boundary must be mapped relative to surrounding 'hard' detail (anything made of brick, stone or concrete that is expected to endure) to a high level of accuracy that is certified by a chartered land surveyor. The intention is that another chartered land surveyor would be able to relocate the boundary (if it should ever be destroyed) in virtually the same place using the plan of the determined boundary.
Like a boundary agreement, a determined boundary must be agreed between the neighbouring landowners before it can be recorded. The only practical difference between a boundary agreement and a determined boundary is that the determined boundary is recorded on a plan whose accuracy has been certified by a chartered land surveyor.
Some examples of when a determined
boundary
is appropriate:
- to clarify the
position of a boundary using a larger
scale plan than the standard 1:1250
scale filed plan;
- to record the position
of a boundary across an open-plan garden when the position of the
boundary would otherwise be unclear;
- to record a boundary position
resulting from an amicable settlement (ie. one not involving courts,
arbitrators or mediators) of a boundary dispute;
- to record
the position of legal boundary when the physical boundary has been
moved in order to license a neighbour's use of a part of your land (eg.
to give a neighbour's
car better access to its driveway and/or
garage).
What you should do
It is essential to engage a chartered
land surveyor to survey and draw a
detailed plan of the agreed
boundary. The surveyor can apply to
HM Land Registry for the determined boundary to be noted on the
register for both titles. If your land
is unregistered you will need to
lodge the plan of the determined boundary
with your solicitor for
it to be attached to your deed of
conveyance.
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General
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This page was last updated on 23 April 2006 |