The problem with our boundaries

A leading judge recently urged neighbours to try to settle boundary ? disputes amicably rather than risk the “immeasurable human misery” that can be caused by going through the courts. The truth cannot be further from Lord Justice Mummery’s statement in the recent case of Macnab v Richardson [2008] EWCA Civ 1631, which dealt with the dislocation of a fence by the Richardsons in the absence of the Macnabs. But in the real world this does not seem as straightforward as it should be. If it was so then no one in their right minds would undertake to expend so much on a tiny strip of disputed land.

In order to understand the implications of a boundary dispute I will start off on the premise of how boundaries are defined in the UK presently.

The Land Registry (LR) and the Royal Chartered Institute of Surveyors (RICS) are responsible for defining boundaries and they work in partnership. RICS deals with the Ordnance Survey (OS) maps. LR plans show the extent of the land in a registered title by means of a red line on the title plan. Where the boundary is not defined by a physical feature on the OS map LR defines that area by means of a dotted line. Boundaries can be physical – this rarely shows ownership of individual boundary structures such as walls, fences or hedges. Ownership can be determined from either checking the title register or LR files. But boundaries may also be legal – this indicates the precise separation of ownership of land - an invisible line dividing the neighbours’ respective properties. It is usually located along a physical boundary feature such as a wall, hedge or fence. In unregistered land (approximately 30 per cent were unregistered in 2009) boundaries are established with the help of title deeds.

A title plan with general boundaries (GB) shows the property’s boundary in relation to some given physical features on the ground such as a wall or fence as identified on the OS map.

This brings us to the first problem with boundaries – the red edging is therefore not definitive as to the precise position of the boundaries. It is very expensive to establish the exact position of the boundaries at registration time when there are other pricey issues at hand for the buyer. Therefore most properties are defined with GBs, which indicate the existence of an exact boundary at an unknown distance from and not necessarily in parallel with the GB.

If boundary demarcations are not clear then provided the neighbours have a cordial relationship the law provides for them to mutually agree that the relevant deeds are not clear as to the position of the common boundary. Such an agreement could be recorded as an annotated plan with a suitable memorandum signed by the parties on each side of the land. This is an agreed boundary. This can be registered in the LR by means of a note on the register – LR Public Guide 19 explains the procedure in detail. For unregistered land the signed agreement is saved with the files.

Determined boundaries superseded the expensive and short-lived fixed boundary, and are created by a procedure that allows for the exact line of a boundary to be determined and recorded on the registered title in accordance with section 60 of LRA 2002. This requires a precise plan showing the exact line of the boundary. This is best done by a land surveyor specialising in boundary demarcation.

DBs work on the principle that the termini and every turning point along a boundary can each be related to at least two reference points. DBs have the potential to record the position of boundaries determined during the resolution of a dispute and provide a focus point around which an ongoing dispute can be settled amicably between neighbours.

Why do disputes occur?

The LRA 2002 has touched very little on the core issues that give rise to disputes – why? The answer lies in a whole host of hurdles that cannot be overcome easily or quickly as they have existed for many years. There are fundamental problems in the way in which boundaries are defined making them ambiguous for those who try to argue the extent of their land.

Boundaries can either be described verbally on the register or in title deeds or be map based. Accurate description whether through cumbersome words or through the relatively easier map requires the expertise of a land surveyor who is generally expensive to employ. This therefore receives very little priority in the scheme of things as disputes are relatively rare particularly if the relationship with the neighbour is friendly.

The defective description will most ?likely carry on unnoticed in most cases through successive ownership of the property. To add to the vagaries of the situation some boundaries are only described with drawings reproduced ?from some old records.

Some boundaries are described with dimensions which conveyancers quite often believe are accurate as they are stated in black and white in deeds. Sadly, this is not always true because of the absence of an expert in defining the extent, inefficient equipment used to measure, and the discrepancies that arise with what the dimensions represent: horizontal distances (as may be scaled from or plotted onto a map or plan) or slope distances along the ground? For instance, a piece of land was measured as 106 feet wide on flat ground. On a steeply sloped distance it only measured 98 feet 6 inches.

Second, with most properties lacking distinctly defined sides, it is difficult to unambiguously define the boundary. Further difficulties arise when a deed ?states the length of a curve or sinuous line that could be almost impossible to set on ?the ground.

A minimum scale of 1:500 should be used for conveyance plans to reflect the exact position of the boundary. Slightly larger scales of 1:250 or 1:200 would be even more ideal. Most OS maps (on which plans are based) are no larger than 1:1250 and so reproducing this on a conveyance plan will be even more distorting. A skilful expert is required to interpret what is on the conveyance plan in relation to what is on the ground and this is often lacking.

Tracings of original maps are used in making subsequent conveyance plans and one can see the resultant inaccuracies therein. Reproducing old plans runs the risk of missing out on any changes made to the physical features of the area since the plan was originally created. Conducting one’s own independent survey will ensure the quality of the plan but costs are prohibitive.

In addition to the practical difficulties associated with the age old several times reproduced plans landowners often lack knowledge of how boundaries are defined and take at face value the information provided by their conveyancers. They are also heavily reliant on the red edging on the LR title plan which as mentioned above does not precisely describe the extent of a property’s boundary. A few are greedy and use the lax system to fabricate disputes to obtain a small piece of land that they may not be able to claim with an accurate definition of boundaries.

English law accepts the concept of adverse possession with the absence of penalising the squatter even if the rightful owner eventually wins the civil dispute to regain ownership of his land. The squatter’s right to apply for legal ownership after the lapse of the stipulated time is further testimony of the absence of a concept of ?theft of land. The English legal system also lacks the intermediate legal processes to prevent a minute dispute from escalating out of control.

Resolution

In an educated and civil society it is best to settle any minor skirmishes amicably through mutual agreement between the parties concerned. This would save time, money and the stress involved in the process if it escalates into a full-blown legal dispute. It may be worth requesting copies of the relevant deeds from the LR to ascertain the legal rights of the owners. For example, a landowner may have a right to enter the neighbour’s property to carry out any essential repairs to his land and this right may be included in the deed.

It is also possible for the county court to give access orders for owners of adjacent properties to enter one another’s land in times of necessity.

The use of alternative dispute resolution methods such as mediation, expert determination, adjudication through LR and the RICS neighbour dispute service will be the next level of dispute resolution. These methods are upheld by the courts.

The last method is litigation and must ?only be used after everything else has failed. ?In fact landowners are discouraged from adopting this approach as the costs are disproportionally high in relation to the value of the land that is the subject ?of dispute.

The lax system of defining boundaries gives incentives for landowners to fabricate disputes where one would not be possible with an accurate mapping framework and stricter regulation with land such as those for adverse possession and suitable penalties for violators. But an overhaul of the existing mapping system would ?be inordinately expensive. For its part ?the LR is insisting on and promoting ?‘as-built’ surveys to reflect the exact ?position of the boundaries on the ground and to provide up-to-date information ?on any new developments on the land. ?This will prevent developers from reusing old plans.

Boundary disputes will not disappear all together but the circumstances leading to it will be greatly reduced.