Work out where the boundary is

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

BOUNDARY
PROBLEMS

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How to work out
where the boundary is

  You are here:    Boundary Problems | How to work out where the boundary is
BACKGROUND
What causes a boundary dispute?
HOW BOUNDARIES ARE DESCRIBED
     Metes and Bounds
     Boundaries described by reference to the Ordnance Survey map
     Boundaries described by reference to a developer's plan
     As-built surveys of new developments
THE PROCESS
     The Paper Title Boundary
     Examples of operative deeds
          Building plots
          Breaking up of landed estates
          Housing developments
          Formerly tied cottages and right-to-buy council houses
          Back garden building plots
     Construing the parcels clause
          Find the boundary by finding the on-ground physical feature
          Ownership of the physical boundary feature
          Dimensions
     Features that tend to define the boundary
     The vendor's intentions
WHEN THE LEGAL BOUNDARY PARTS COMPANY WITH THE PAPER TITLE BOUNDARY
     Boundary Agreement
     Adverse Possession
          What can provide evidence of adverse possession?
     Proprietary-Estoppel
MISCELLANEOUS
     Result of previous litigation of the same boundary
     Lost Title Deeds

 

Pre-amble:-

Rule No 1 is to ignore the title plan. And if you don't want to believe me on this, then read what a barrister thinks on the matter: "Land Registry plans do not show where the boundary is".

The title plan shows only the general position of the boundary:
     Land Registration Act 2002
     Section 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.

The title plan is, surprisingly, based on Ordnance Survey maps; surprising because the Ordnance Survey Act 1841 prevents Ordnance Survey from depicting property boundaries.
     Ordnance Survey Act 1841
     Section 12
     .... this present Act .... shall not extend .... to ascertain, define, alter, enlarge, increase
     or decrease, nor in any way to affect, any Boundary or Boundaries of .... any Land or
     Property, .... nor to affect the Title of any such Owner or Owners, .... but that all Right
     and Title of any Owner .... shall remain to all Intents and Purposes in like State and
     Condition as if this Act had not been passed.

Setting aside the fact that, by law, Ordnance Survey maps do not show property boundaries, there are accuracy limitations, there is cartographic generalisation, and there are issues surrounding the selection and omission of features to be shown on the Ordnance Survey map, that make such maps unsuitable as the base mapping for property boundary descriptions.

The unavoidable consequence of these mapping issues is that Land Registry cannot tell you exactly where your boundary is (unless the landowners to either side of the boundary have already registered the exact line of the boundary). This why you should ignore the title plan.

 

As there is no class of registered surveyor in the UK with a licence qualifying him or her to decide where boundaries are, there is no-one who can say with authority where any boundary is. Even the most renowned boundary surveyor can give only his or her professional opinion as to where the boundary is. Even when faced with such a professional opinion, the adjoining landowner is at liberty to disagree with that opinion.

The only people who can decide upon where the boundary is are judges. Only a judge is entitled to enforce upon the landowner to each side of the boundary a decision as to the exact line of that boundary.

 

If the reader, whether a landowner who wants to work out where the boundary is, or a would-be boundaries expert or an experienced boundaries expert, wants to form a professional opinion as to where a boundary is, then that reader needs to go through the same thought processes as a judge goes through.

The boundary that those thought processes lead to will still not be considered a legal boundary because no judge has been involved in the process. The neighbouring landowner is entitled to hold to a different opinion.

 

What causes a boundary dispute?

The Ministry of Justice recognises that "Disputes about the position of a boundary come in many forms and have many different causes . . . ."

In a paper, Boundary Disputes, a scoping Study of January 2015, the causes of boundary disputes were classified as being either "personal issues" or "technical/legal issues".

"Personal Issues" are the things that tend to trigger a dispute, and can give an insight into why the parties are in dispute. They are listed below.

  • changes in ownership of a property;
  • extensions or improvements being carried out;
  • the repair or replacement of features such as fences (in particular where a hedge is replaced by a fence);
  • changes in the position of a physical feature over time.

The "legal/technical issues" are the matters that are susceptible to analysis by consideration of the available evidence, and include:

  • a lack of adequate evidence to confirm the physical location of the boundary;
  • a lack of clarity in the available documentation;
  • problems caused by changes in the physical features;
  • badly prepared title deeds showing an inaccurate position for the boundary;
  • errors in conveyancing;
  • errors made by Land Registry;
  • claims relating to adverse possession.

"Personal Issues" may help you to understand what the dispute is about and may serve to help you focus on the "technical issue" that needs proving by reference to evidence. Aside from that, the "Personal Issues" are of little relevance to the remainder of the present web page.

The "legal/technical issues" are the matters to be addressed during an investigation into the true position of a boundary; they are matters falling within the remit of a boundaries expert.

Admittedly, errors in conveyancing and errors made by Land Registry tend to be triggers of boundary disputes, but it falls to a boundaries expert to explain what those errors are, and possibly how those errors were made. This is why they are included in the "legal/technical issues" list.

 

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BACKGROUND

A boundary is created when a landowner divides his land in order to sell the divided-off part. The earliest description of the boundary appears in the title deed (a Conveyance of unregistered land or a Transfer of Part of a registered parcel of land) that accompanies the first sale of the newly created parcel of land. This deed is referred to as the "operative deed" or as the "originating deed". The position of the boundary that is described in this first description of a boundary is referred to as the Paper Title Boundary.

You may refer to why a barrister thinks finding the "originating conveyance" is of the utmost importance.

The Legal Boundary is one and the same thing as the Paper Title Boundary, but only until such time as something happens that moves the Legal Boundary away from the position of the Paper Title Boundary.

The things that may cause the Legal Boundary to move away from the Paper Title Boundary are:

  • a boundary agreement
  • adverse possession
  • proprietary estoppel
If you are not a judge then be aware: it is only a judge who can decide whether the Legal Boundary has moved as a consequence of any of the above and to where it has moved.

If you are either a boundary expert or a landowner, it is your duty to present evidence of a boundary agreement, of adverse possession or of proprietary estoppel, but it is not within your power to decide whether or to where the Legal Boundary has moved.

 

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HOW BOUNDARIES ARE DESCRIBED

If you want to determine the position of the Paper Title Boundary then you first need to understand how boundaries are described.

Metes and Bounds

Prior to about 1850 the standard method of describing boundaries, known as the metes and bounds system, used only words: suitable maps were not yet available. The boundary surrounding a parcel of land was broken down into sections.

For each section of boundary the metes and bounds system provides:

  • a description of the point at which it starts;
  • the length and compass direction (the metes);
  • a description of what physical feature the boundary follows (the bounds);
  • a description of the point at which it ends.

Metes and Bounds descriptions were long and tedious, both to compile and to read. They fell out of fashion quickly when an easier method of describing boundaries became available.

 

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Boundaries described by reference to the Ordnance Survey map

Review of the Ordnance Survey map series
In the 1840's Ordnance Survey started to publish maps of towns at various scales, usually 1:1056, 1:528 or 1:500. In the 1850's Ordnance Survey published the first of its County Series of 1:2500 scale maps covering both urban and rural areas. By the 1890's Ordnance Survey had completed the entire 1:2500 scale series.

Revised editions of these County Series maps were produced until 1948. If you want to find out when new editions were published of any particular area then you should try to get access to a copy of Richard Oliver's book "Ordnance Survey Maps, a concise guide for historians". The area covered by individual map sheets may be ascertained from David Archer's "Indexes to the 1/2500 and 6-Inch scale maps"

From 1948 the County Series was progressively replaced by National Grid series maps at a scale of 1:1250 for urban areas and of 1:2500 for rural areas.

In mountain and moorland areas the scale of mapping was 1:10,560 (Six Inches to the Mile) for both County Series and National Grid maps, but from 1969 these Six Inch maps were superseded by their 1:10,000 scale counterparts.

Published, chart paper editions of the National Grid maps were discontinued in 1991. Paper, site-centred plots were introduced in 1992 under the brand name of Superplan.The mapping could also be purchased as digital map files for use in suitable software applications.

Adoption of Ordnance Survey maps as the basis of boundary descriptions
The County Series was acclaimed as the most accurate map of any country and was greatly admired.

Conveyancing solicitors realised, from the 1850's on, that the County Series maps offered them a way out of the tedium of writing a Metes and Bounds description. A brief parcels clause in the conveyance need do little more than refer to the postal address of the property being sold suffixed with the statement "as is tinted pink on the plan attached hereto". It was less tedious to get a copy of a map and apply pink tinting to the appropriate area than it was to draft a Metes and Bounds description.

Whilst the adoption of Ordnance Survey maps as the basis of boundary descriptions was seen at the time as a revolutionary adoption of new technology, it was in hindsight a backward step.

Whilst the Metes provided a rather approximate guide as to where to look for the boundary, the Bounds (the descriptions of each section and of its end points) told you exactly what you were looking for once you had got near enough to its position.

In comparison, the Ordnance Survey map gave you a better guide than the metes as to where to look for the boundary. However, it is at best an inexact guide, is quite often ambiguous, and is sometimes downright misleading. To make matters worse, this new method of relying on the Ordnance Survey map, whilst omitting to mention the bounds, completely failed to tell you what it was you were looking for.

That line on the Ordnance Survey map that bounded the pink tinting might represent a wall, a bank, a fence, a hedge or a ditch, and neither the conveyance plan nor the Ordnance Survey map on which it was based told you which kind of feature was represented by that line.

A major limitation of the Ordnance Survey map is the accuracy standards that were achievable in the mid nineteenth century and which still plague the users of the modern, digital versions of the Ordnance Survey map, burdened as they are with the legacy of those nineteenth century accuracy standards. Map accuracy is discussed here.

Very often the boundary description would be related to a lonely line on the map when in that place on the ground two or more linear features existed side by side: a great many rural hedges are accompanied either by a parallel ditch or by one or even two parallel fences.

Moreover, the line on the map represents the centre of the feature whilst it is more likely that the boundary:
a) follows one face of the feature (if the physical feature is a wall or fence), or
b) is displaced away from the centre of the feature:
     b1) if the physical feature is a hedge then the boundary is likely to be displaced by
           an unstated distance to one side of the hedge's centre line or root line, or
     b2) by convention along the outer rim of an accompanying but unmapped ditch.

Then there are other facets of Ordnance Survey map specifications that deliberately displace or omit ground features for the purpose of making the map clearer: cartographers will recognise these, giving them terms such as "selection", (the omission of less important features due to lack of space at the scale of the map) and "generalisation" (the deliberate displacement of the map position of a ground feature that is too important to be omitted under the cartographic rules of "selection" or "minimum distance").

One aspect of "selection" that often arises is the omission of bay windows from house frontages: they are just too small to show at the scale of the mapping.

One aspect of "generalisation" is often referred to as Ordnance Survey's "minimum distance rule". This rule used to hold that only one of a pair of parallel features would be shown if they were less than 6 feet apart (1:2500 scale maps) or less than 3 feet apart (1;1250 scale maps). In the early 1970's, when the maps were metricated, those figures were revised to 2 metres (1:2500) and to 1 metre (1:1250).

One example of generalisation is displayed in the illustration below, which also appears beneath the Generalisation explanation on the "Using Ordnance Survey maps" page of the present web site: Fig.1 is Ordnance Survey mapping that appears to show two houses attached to each other, whilst Fig.2 is from an accurate survey that shows the houses as being detached from each and standing more than 0.5 metres apart from each other.

One consequence of "minimum distance" is that narrow streams and ditches are shown by a centre line whereas both banks will be shown for broader streams and ditches.

Another quirk of the minimum distance rule is the disappearance of a narrow walkway where the fence on the ground passes close beside the house whilst on the map that narrow walkway is not shown and the fences to front and rear are drawn so as to meet the corners of the house. This can be very confusing to landowners who put too much faith in the map when they don't understand the limitations imposed by the map's specifications.

I have occasionally been able to convince doubters of the minimum distance rule by pointing out that an early edition 1:2500 scale map shows no side access walkway (strictly speaking, that map shows:
          a) either that there may have been no access; or
          b) that the access was less than 6 feet wide);
whilst a later 1:1250 scale map does show the side access (because that same side access is at least 3 feet wide), as shown in the illustration below.


Clearly, the 1:2500 scale map specification prevented the earlier 1:2500 scale map from showing a side access way of between 3 feet and 6 feet in width whilst the 1:1250 scale map specification permitted the later 1:1250 scale map to show that same side access way.

Another problem encountered in boundary descriptions based on Ordnance Survey mapping is the revision cycle of that mapping.

The County Series maps (published between 1850 and 1948) were revised periodically. The period was variable and depended on there being sufficient changes on the ground to warrant the expense of surveying, drawing and printing a new edition of the map.

The National Grid Series (published between 1948 and 1991) were revised on a continual basis (although Ordnance Survey, showing a lack of understanding of grammar, referred to it as "continuous revision"). Even with "continuous" revision, published new editions continued to appear only sporadically and the interim revisions made more frequently available by Ordnance Survey failed to attract a large market and are only rarely seen in boundary disputes.

The implication for boundary descriptions was that the base mapping used was sometimes two or three decades old. The boundary was described not in relation to the physical features present on the day the conveyance was signed but in relation to other physical features that had previously stood on the site. In such circumstances, how much reliance can you place on the paper title boundary's description?

One last point to make is that the majority of boundary descriptions based on Ordnance Survey mapping did not use Ordnance Survey's printed maps for the purpose but used a tracing made from the Ordnance Survey map. A tracing is incapable of improving the accuracy of the Ordnance Survey map (which was not in any case accurate enough for the purpose of describing property boundaries) but the act of tracing runs the risk of introducing further errors to the boundary description.

 

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Boundaries described by reference to a developer's plan

From about 1960 it became the practice to use architect's drawings (specifically the "layout plan") as the basis for describing the boundaries of individual properties within a housing development.

The principle advantage of this practice is that it overcame the problem that Ordnance Survey mapping of the housing development was not usually available until after the houses had been built and sold.

The developer's plan had the advantage of showing the houses before they were even built and were the obvious choice as the base mapping for the boundary description.

The problem with having a plan that showed the houses, the roads, and the fences, before they were even built is this: what happens if those houses, roads and fences are built in places other than where the architect specified? I can tell you: it results in boundary descriptions that tell you what the architect wanted built and not what was actually built. In other words, they describe a fiction and not a reality. See an example at Developers' layout plans.

 

As-built surveys of new developments

Developers have long resisted, on the grounds of expense, making as-built surveys following construction. Land Registry has been campaigning for decades for the adoption of such as-built surveys. A small degree of progress is being achieved, small enough that it is safer to assume that the boundary description in front of you is based on a developer's plan unless you have clear evidence that it was surveyed after completion of the building works. If you are a boundaries expert, then by making your own land survey you will soon discover whether you are dealing with a developer's plan or an as-built survey.

 

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THE PROCESS

The Paper Title Boundary

Lawyers talk and write about "construing the parcels clause" of a conveyance. A major concern has been:

  • whether the conveyance plan is subservient to the parcels clause (" … as is for identification purposes only shown on the plan attached … "),
  • or takes precedence over the parcels clause (" … more particularly delineated on the plan attached … "),
  • and what do you do when you encounter the mutually stultifying phrases " … which is for identification purposes only more particularly delineated on the plan … ")?

Modern practice in the courts is to accept that some things are more easily described in words whilst others are more easily described in drawings, and as a consequence you should take note both of the parcels clause and of the conveyance plan regardless of which phrase you encounter in the parcels clause. My own experience is that the parcels clause rarely includes informative descriptive material concerning the boundary and the plan is the major source of enlightenment (subject to all of the caveats expressed in the preceding section entitled "Boundary Descriptions" on this present page).

You may refer to a barrister's more nuanced view of Construing the parcels clause.

My first two paragraphs under the present heading relate to conveyances, which are the deeds that relate to the sale of unregistered land. Very often, it is only the conveyance for the first sale of a newly created parcel of land that contains a conveyance plan. On later resale of the same, unchanged, parcel of land the conveyance's parcel clause will refer back to the plan drawn on the originating conveyance for that property.

Sales of registered land are attended by Transfer Deeds. A Transfer Deed is a more modern version of a conveyance deed and is used when dealing with registered land. On the first sale of a newly created parcel of land (divided out of a larger parcel of already registered land) the deed will be a Transfer of Part. Transfers of Part have Transfer plans (which are simply modern versions of conveyance plans). Transfers (of the Whole of the land in a given title) do not contain transfer plans but rely by implication on the title plan (and the title plan shows only the general position of the boundary and cannot be used as the basis of a boundary description).

My preceding two paragraphs highlight the need to obtain the deed, be it a Conveyance or a Transfer of Part, that attended the creation of the boundary whose paper title boundary position is being investigated. Such a conveyance or transfer of part is sometimes referred to either as "the operative deed" or as the "originating conveyance".

I will get back to "construing the parcels clause" a little later, First I need to discuss the various deeds in which the parcels clause will be found.

 

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Examples of operative deeds

Building plots

In the latter half of the nineteenth and early part of the twentieth century, most houses were built upon land sold as individual building plots.

Many larger houses were built on such plots of land. The operative conveyance will be the conveyance of whichever of the building plots to either side of the disputed boundary was sold first.

I have come across a road in Newport, Gwent in which, at the start of the twentieth century a builder was buying building plots in ones, twos and threes as and when he could afford them. He gradually built terraced housing all along the street. The conveyance for the first sale of each newly built house referred back to the conveyance relating to the purchase of the relevant building plot, so the operative conveyance relates to the purchase of the building plot and not the first sale of the house that was later built upon it.

During this period, it was quite common for the conveyance relating to a building plot to contain a clause stipulating that "no more than two houses" were to be built upon the plot. This is the basis upon which many semi-detached houses were built. If the boundary in dispute separates two semi-detached houses that are not attached to each other, then the operative conveyance is the conveyance relating to the earlier purchased building plot. If the disputed boundary is between two semi-detached houses that are attached to each other then the operative conveyance will be the conveyance relating to the semi-detached house that was sold first. It is dangerous to make the assumption that the building plot was divided into two parts of equal width.

Breaking up of landed estates

Following the First World War (1914 to 1918) and again following the Second World War (1939 to 1946) a number of large, landed estates were broken into lots that were sold at auction.

An auction lot may contain a single building or a cluster of buildings, or it may contain an entire farm, such a farm having been previously tenanted. For each lot that was sold at auction the operative conveyance (except in the case of the disputed boundary being one of the external boundaries of the estate) will relate to the date of the auction sale. This is because each lot in the auction became a newly divided-off parcel of land at the auction; the boundary between any two freehold lots was created at the date the freeholder divided the land and created those two lots. This is true even if the two lots in question had previously been tenanted farms that had a long-established boundary between the two tenancies; and it is true because we are concerned with the newly created freehold boundary and not with the long-accepted tenancy boundary.

Sale of a house within a housing development

In the latter half of the twentieth century, and continuing today, most houses are built upon large areas of land that were sold with outline consent for house building. The developer who purchased the land employed an architect to design an estate of many houses, and the housing estate was divided into many freeholds in a sequence that was dependent upon the order in which the houses were completed and sold.

The boundary between any two houses in a housing development was created when the first of the two affected adjoining houses was sold.

Occasionally, a boundary dispute arises between two adjoining houses that are located on the perimeter of two separate housing estates. In this case the operative conveyance is the earlier of the two conveyances by which the relevant building land was purchased.

Sale of tied cottages and right-to-buy council houses

There are many country cottages that were formerly tied cottages belonging to a farm and tenanted by a farm worker whose tenancy was conditional upon continuing employment with the farm that owned the tied cottage. It follows that the operative conveyance is the conveyance relating to the sale of the formerly tied cottage to a private owner who was not connected with the farm, i.e. that boundary was created when the cottage and the remaining part of the farm ceased to be in common ownership.

There are many council houses that fell into private ownership when a sitting tenant exercised their right to buy under the Housing Act 1980. The operative conveyance is the conveyance relating to the sale of whichever house was the first of the two adjoining houses to be sold to its sitting tenant.

Boundary disputes sometimes arise between the tenant of a council house and the owner of the adjoining right-to-buy house. As the tenant is not the freeholder then the dispute becomes a dispute between the freeholder and the local council or the housing association who took over responsibility for council housing. It is unlikely that the council or the housing association will wish to become embroiled in a boundary dispute, but they should be encouraged to provide guidance to their tenant in order to prevent an irresolvable dispute from festering on.

Building in the back garden of an established house

Boundary disputes sometimes arise between the owner of a new house built in someone's formerly large back garden and the owner of the original house with its now reduced garden. It should be remembered that it is the owner of the formerly larger parcel of land who was free to choose whether he sold some of his land and was perfectly entitled to choose exactly where to place the boundary between the land he retained and the land he sold. The operative deed is the conveyance or the transfer of part that created the building plot.

 

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Construing the parcels clause

This simply means considering the parcels clause and the associated conveyance plan or transfer plan and deciding where, upon the ground, the described boundary is to be found.

Before proceeding, you may want to review the first three paragraphs under the heading The Paper Title Boundary, above.

 

Where do you find the parcels clause?
In conveyance deeds, the parcels clause is usually found on the lower half of the first page of the deed. If the conveyance contains lengthy recitals, then the parcels clause may get pushed back to the second page. The parcels clause can readily be identified as it traditionally starts with: "ALL THAT piece or parcel of land ...."

Transfers of Part once looked a lot like conveyances, but for some time a standard pro-forma template has been used which features numbered panels.

A Transfer of the Whole (identified by the very large "TR1" in the top right corner of the first page) contains no parcels clause as it relies on the title plan, which shows only the general position of the boundary. The TR1 should be ignored because it will not be the "originating deed".

The Transfer of Part (identified by the very large "TP1" in the top right corner of the first page). The parcels clause is panel 3 of the TP1.

 

Panel 3 has two tick-boxes, offering two alternatives. The first tick-box requires completing, essentially with the options of:
tinted pink, or
edged in red.
The stated colour must, of course, conform to the colour used on the transfer plan.

The second tick-box offers the option of using a marked up copy of a title plan (as opposed to using a custom made plan), but as the title plan shows only the general positions of the boundaries it is difficult to see how this option produces anything other than an ambiguous boundary description.

 

Construing the parcels clause is, in practice, not straightforward.

Let us start by considering a boundary description that is based on the Ordnance Survey map.

The coloured tinting is enclosed within a polygon of black lines on the face of the Ordnance Survey map.

The boundary is assumed to relate
in some way to the feature that is
represented by the line on
the Ordnance Survey map.

The first and most important point to make is that the boundary is not to be found by scaling the position of that line from the map and then marking that scaled-up line onto the ground. The accuracy limitations of the Ordnance Survey map make such a scaling-up a very dangerous exercise. In the example above, a less than accurate tracing of an Ordnance Survey map, that danger is increased.

The boundary is to be located by finding on the ground the feature that is represented by that line.

In order to be able to clearly demonstrate your findings to your clients, and possibly to a tribunal or a court, it will be necessary to make an accurate topographic survey of the disputed boundary and the surrounding topography. This may require that you survey the entirety of the two adjoining properties, together with all permanent structures (buildings, walls, fences, etc.). Ideally, you need to be able to produce a scaled drawing, preferably at 1:200 scale on A3 sized paper. If you are a land surveyor, this will be no problem, but if you are not a land surveyor then you will need to subcontract the surveying of the site to a land surveyor.

You may read a barrister's view of the need for a measured site survey.

Once you have located the ground position of that physical feature, there are other issues to consider:

  • Is it the only physical feature in the vicinity of the boundary, or is there a parallel feature on the ground that is not shown on the map but which carries the boundary, for example the outer rim of the ditch that is associated with the hedge that is shown on the Ordnance Survey map; or for example, the near bank of a narrow stream whose centre line is shown on the Ordnance Survey map?

  • Is the hedge seen separating two residential gardens the feature that is represented on the old Ordnance Survey map used for the conveyance plan? Or is it possible that the boundary was originally marked by a fence and that the modern hedge was later planted alongside that fence? If nothing remains of that fence it will now be impossible to know where the paper title boundary was intended to be (there are no regulations governing the distance from the boundary that any species of hedge must be planted). If there are remnants of the former fence still in situ and firmly held in the ground then these remnants are likely to represent the former boundary fence. But also be aware that it is a common practice for pet owners to erect either a chicken wire or a chain link fence for the purpose of preventing their pets from passing under the hedge onto a neighbour's land.

  • Does the paper title boundary run along the face of a building? Do eaves and gutters overhang the adjoining land and footings encroach beneath the adjoining land, and if so then what are the legal implications of these? Or is there a clause in the originating deed to cover such overhang and encroachment?

  • Who owns the physical feature that has been identified from the paper title boundary description?

Ownership of the physical boundary feature is important because the legal boundary (for which you should in the present context read "paper title boundary") is a line of no thickness and all physical features have a thickness of some width or other.

  • Some conveyances and transfers of part will contain clauses concerning the ownership of or the responsibility for maintenance (which surely implies ownership) of boundary features, accompanied by T-marks on the plan, such T-marks being applied to the appropriate boundaries. Too many deeds are silent on such matters.

  • I have seen modern conveyances/transfers relating to then brand-new properties that specify that any fences, walls or hedges found on boundaries are to be treated as party structures, but in the majority of cases it is unusual to find that the boundary marking feature is a party structure.

  • When it is established that someone owns a boundary feature then it is reasonably safe to assume that the feature stands on their land and that the boundary runs along the outer face of the feature. This is of course true for walls and fences that mark a boundary. It cannot be true for hedges which just keep growing wider but are then generally subject to periodic pruning. The outer face of the hedge is therefore in perpetual motion. This is why it is so important to retain a physical marking of the actual boundary beside which the hedge was planted: such physical marker retention is neglected by most landowners, and this makes it extremely difficult to determine the exact line of a boundary that runs close beside a long-established hedge.

    • Dimensions are often, but not universally, present on conveyance plans dating from the mid-nineteenth to the mid-twentieth century. Lawyers appear to love dimensions, but dimensions should be accompanied by health warnings.

    • Conveyances almost never disclose which firm of conveyancing solicitors drafted the conveyance, and correspondingly never divulge who was responsible for drawing the conveyance plan and for measuring the dimensions that are shown upon it, nor how or with what those measurements were taken.

    • A superficial examination of the dimensions of a land parcel, tested against the geometry that we all learned in the early years of our secondary education, demonstrates that whoever drew the conveyance plan was ignoring what they had learned in school.
      Examples may be seen here.
      Further discussion of dimensions is found here.

    • The set of dimensions around a parcel of land are always too simplistic to enable you to generate the exact shape of that parcel of land: for example, four dimensions that apparently define a rectangle of a certain size also define any number of parallelograms, which will incidentally be of different sizes (or strictly, contain different areas) from the rectangle and from each other (see illustration below left). It is impossible to determine whether you are dealing with a rectangle or a parallelogram unless you are given additional information: either the length of one of the two diagonals, or the size of just one of the corner angles, would suffice, but this additional information is never included.


      •  
       
    • If the boundary is composed of more than four straight lines, and if the only geometric information is the length of each of those sides, then it becomes impossible as a theoretical exercise to work out the exact shape of the boundary polygon (see illustration above right). I have on a number of occasions resolved this conundrum by trying to match the given dimensions to existing features mapped by myself and hoping that these existing features are either original or standing in the same place as the original feature stood (see illustration below). But if the "feature" of my preceding sentence is a wooden fence, then be warned that wooden fences do not last forever and there is a great history of successive wooden fences creeping away from the "paper title boundary".

      • Dimensions given on a conveyance plan that is clearly distorted Author's accurate survey (blue) supplemented by Ordnance Survey mapping (grey) Author's interpretation of dimensions onto current fence line (the current fence was known to be a replacement for the fence that had stood at the date of conveyance)

       
    • As the boundary features in a boundary description based on the Ordnance Survey map are never described, there is no way of knowing exactly from what or where and to what or where the dimension was measured.

     

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    Features that tend to define the boundary

    I have been asked, "Are there any physical features that tell you, just by looking at them, where the boundary is?"

    I can think of only one such kind of physical feature, and that is the party wall by which two semi-detached houses are joined to each other, or by which any two terraced houses are joined to each other. This was enshrined in law by section 38 of the Law of Property Act 1925.

    I have already written that some garden walls, garden fences and hedges are party features, but you cannot tell that they are party features just by looking at them - you need to find, in a relevant conveyance or transfer of part, the information that they are party features.

    I have come across instances of a garden wall, built at the same time as the houses were built, standing on the line of the party wall between the two houses whose gardens it separates. It cannot be assumed that this garden wall is automatically a party wall. It would have been simpler for the builder to keep laying bricks out into the garden along the same line as the party wall that joins the houses. That builder may not have thought through what he was doing before he started building that garden wall. In one case it was clearly stated in the conveyance that the garden wall belonged to one of those two houses: i.e. the garden wall was not a party wall (external to the house) although it stood on the same line as the party wall (internal to the house).

    The ownership of retaining walls, when such walls are associated with property boundaries, can be perplexing. There are two reasons for building a retaining wall.

    a) One is when you need to excavate land, such as to create a flat platform in sloping land in order to build a house upon the flat platform; the retaining wall is needed to support a neighbour's land on the uphill side of the excavation.

    b) The other is when you need to pile waste soil (for example, waste created when digging out the foundations for a house or other building); the retaining wall is needed to contain the displaced soil so as to prevent it slipping and spreading onto a neighbour's land.

    A problem arises when a retaining wall starts to fail. Retaining walls are much more expensive to build and to repair than are ordinary garden walls, and a boundary dispute arises if neither neighbour is willing to pay for the cost of repair.

    Just as conveyance deeds can be silent as to the ownership of a boundary wall, so can they be silent as to the ownership of a retaining wall that stands along a property boundary. In such cases it is helpful if there are documents available, such as planning drawings, that will illuminate the history of the wall.

     

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    The vendor's intentions

    It should by now be clear to the reader that paper title boundary descriptions are prone to ambiguity.

    When a court finds the paper title boundary description that it is considering to be ambiguous, the question will be asked, "What did the vendor intend when he or she described the boundary as he or she did in the originating conveyance?"

    As an aside, I would say that we do not know whether the boundary's description was drawn up by the vendor, by someone acting as his agent (perhaps his land agent, or his estate agent or his gardener), or by the conveyancing solicitor who drew up the operative deed; nor do we know what training any of these people might have had in the correct way of describing boundaries. In fact, I am unaware of the existence of any such training course.

    Very often, the vendor who divided the land, thus creating the presently disputed boundary, is no longer available to answer the question concerning his intentions at the date of the operative conveyance. The question before the court has to be re-phrased and becomes, "Where would the reasonable man, standing upon the land on the date of the operative conveyance and armed with the operative conveyance, understand the boundary to be?"

    This may read like a fanciful question, particularly if the operative conveyance bears a date from before anyone who was present in the court that day was born. Courts dislike fanciful answers, so it is necessary for the court to consider all of the documentary evidence we have that would provide us with a context for the sale of land that took place on the date of the operative conveyance.

    Even if the matter is not before a court, for a proper understanding of the boundary the landowner or the boundary expert should acquire such documentary evidence.

    What documentary evidence might be relevant? :

    • Auction sales literature relating to the date of the operative conveyance;

    • Estate Maps (useful if the operative conveyance relates to the breaking up of a landed estate);

    • Ordnance Survey 1:2500 scale maps, bearing in mind that the first editions of such maps will have been published between 1850 and 1890, so these will not help if the operative conveyance is older;

    • 1909-1910 Finance Act maps: a survey of the use and value of every property in England and Wales. The survey produced marked-up Ordnance Survey "plans" cross-referred to "field books" of information about the ownership, size and use of every parcel of land;

    • Tithe maps, usually published at 1:10,560 scale and published in the 1830's for some areas of England and Wales only, these are less accurate than and more difficult to interpret than Ordnance Survey maps;

    • Land Use maps: the first Land Utilisation Survey was carried out in the 1930's and published at One Inch (1:63,360) scale. The Second Land Use Survey was made in the 1960's and published at 1:25,000 scale. These maps will be totally inadequate for determining the positions of any boundary but will give an idea of the use to which the land was being put at the time of the respective survey.

    • Aerial photographs: vertical air photos are capable of being viewed in three dimensions and are available from the 1940's onwards;

    • Oblique aerial photographs are available from slightly earlier;

    • Planning drawings: available free of charge from the web sites of district councils as downloadable PDF files for applications made in the 21st century; older drawings going back to the 1960's will be held in archive storage and be more difficult to obtain. The drawings will show the architect's plans for new builds and extensions and are often based upon site surveys made immediately prior to the planning exercise. As such they will show what was on the ground at the date of the site survey, but it is unwise to accept any depiction of a boundary as having evidential value because neither the site surveyor nor the architect will have made any analysis of the boundary.

     

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    WHEN THE LEGAL BOUNDARY PARTS COMPANY WITH THE PAPER TITLE BOUNDARY

    Boundary Agreement

    There are two kinds of boundary agreement to consider.

    i.  A boundary agreement made for the purpose of clarifying the ambiguous paper title description found in the operative conveyance.

    There are no standards to follow in making a boundary agreement. It may simply be a prosaic description (i.e. using words only) or it may incorporate a plan.

    Courts will accept boundary descriptions, whether they were made in writing or only verbally, and will weigh up whether such a boundary description is sufficient as the basis of a description of the legal boundary, which will often mean that the legal boundary is in a different position from where the ambiguous paper title boundary would lead us to believe the boundary to be.

    Land Registry is happy to note a boundary agreement on the title registers for the two (or more) properties affected by the boundary agreement. It helps if the boundary agreement is drawn up as a deed, i.e. the parties sign the agreement and each signature is witnessed by an independent witness. Land Registry is usually unwilling to alter the affected title plans, which is understandable given that the title plans shown only the general position of the boundary.

    Thus it a good idea, when investigating a boundary, to ascertain whether a boundary agreement affects that boundary.

    ii.  Registration of the Exact Line of the Boundary is a facility that was introduced by the Land Registration Act 2002. The specification for an Exact Line of Boundary drawing requires an accurate plan at a scale of 1:200 and that all distances stated on the plan have been measured to an accuracy of +/- 10 mm. These specifications effectively require that the Exact Line of Boundary drawing is produced by a land surveyor.

    Exact Line of the Boundary Registrations are usually used only to record a boundary that was in dispute and whose exact position has now been agreed, either amicably between the parties or as the outcome of litigation or an alternative dispute resolution process. This means that Exact Line of Boundary Registrations are unlikely to feature in boundary investigations, but it would be wise to check the title registers of any properties whose boundaries are under investigation in case both properties have been sold since the Exact Line of the Boundary was Registered and neither owner is aware of the existence of the registered exact line of boundary.

     

    Land Registry's Practice guide 40: HM Land Registry plans, supplement 4, boundary agreements and determined boundaries discusses boundary agreements and Exact Line of Boundary Registrations and gives guidance on making applications in respect of each.

     

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    Adverse Possession

    The concept of adverse possession is covered elsewhere on this web site.
    - a general discussion of the concept;
    - as provided for by the Land Registration Act 2002;
    - impossibility of adversely possessing part of an open plan front garden;
    - Wikipedia's explanation of adverse possession.

    In the context of the present page, this section is restricted to the situation where it is alleged that the current boundary-marking feature (perhaps a fence) stands in a different position from that in which its predecessor stood.

    One party will be trying to claim either that the boundary-marking feature has never moved, or in the alternative to claim that the feature moved so long ago as to substantiate exclusive enjoyment of the disputed land for the necessary period of time (the adverse possession argument). The other party will be trying to claim that the present boundary-marking feature is too new to support a claim of adverse possession.

    First, a technical point, "exclusive enjoyment"; requires enclosure of the land so as to be able to demonstrate control over who may come onto the land.

    • A claim of adverse possession cannot therefore succeed if it affects all or part of a right of way, whether public or private, as the claimant cannot control who comes onto that road.

    • Nor can a claim of adverse possession of a part of the adjoining landowner's open plan front garden be successful, as there is no enclosing feature with which to keep others off the affected land: a claim of exclusive cultivation throughout the necessary period of years of a grass lawn that straddles the paper title boundary is insufficient. See also Where is the boundary of my open plan front garden?

    As to the period of time, consideration should be given as to whether the case comes under the rules introduced by the Land Registration Act 2002 or whether it is capable of being dealt with under the pre-existing system.

    In order to support an application to Land Registry under Schedule 6 of the Land Registration Act 2002 it is necessary to demonstrate 10 (or more) years of adverse possession of the land being squatted upon. An investigation of the boundary must therefore establish whether the current boundary-marking feature has occupied its present position for at least 10 years.

    Recently, adverse possession litigations have successfully been pursued on the basis of the pre-Land Registration Act 2002 system. The argument holds that if the case had been taken to court prior to the date on which the Land Registration Act 2002 came into force then the judge would simply have had to make a ruling based on a straight 12 years of actual possession and that the Land Registration Act 2002 would not have been applicable.

    The Land Registration Act 2002 Act came into force on 13 October 2003, so to now avoid the application of that Act it is necessary to demonstrate that the adverse possession had started no later than 13 October 1991. An investigation of the boundary must therefore establish whether the current boundary-marking feature has occupied its present position since at least 13 October 1991.

    What can provide that evidence:
    - whether of 10 or more years adverse possession prior to the start of the present dispute,
    - or of adverse possession that started on or before 13 October 1991?

    If the boundary-marking feature is "air-visible" then an aerial photograph of an appropriate date can provide the necessary evidence of existence or otherwise of that feature.

    It can be a little difficult to prove from an aerial photograph exactly where that boundary-marking feature stood, unless the boundary-marking feature can be demonstrated to have maintained the same position relative to nearby objects appearing both on the photograph and remaining now upon the ground.

    In the unlikely event that a plan exists of a measured land survey made at an appropriate date, and if that plan shows the position on that date of the boundary-marking feature, then such a plan would provide documentary evidence.

    One example of such a plan would be a site survey made for planning purposes: but note that such a plan will show not the boundary (see previous cautions against using planning drawings) but will potentially show the boundary-marking feature that stood at the date of the measured land survey.

    Neither a landowner nor a boundary expert has the authority to decide that a legal boundary has been moved under the operation of adverse possession. But who, other than a boundary expert, is best suited to present the factual evidence to a judge for decision in court, or in support of an application for the registration of an adverse possessor under Schedule 6 of the Land Registration Act 2002?

    Proprietary Estoppel

    An attempt at explaining proprietary estoppel appears on the Glossary page of the present web site.

    Proprietary estoppel is a legal concept and not a matter on which either landowners or boundary experts have the authority to make decisions as to the true position of the legal boundary. Nevertheless, proprietary estoppel does crop up in some boundary disputes cases. It is necessary for boundary experts (so as to be able to give appropriate advice to a client) to be aware of the circumstances in which proprietary estoppel might arise and how those circumstances might affect a judge's decision as to the location of the boundary.

     

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    MISCELLANEOUS

    Result of previous litigation of the same boundary

    Occasionally, an investigation into a disputed boundary will uncover the fact that the very same boundary has previously been disputed and was the subject of litigation. In such circumstances it is natural to form the view that no further investigation is necessary as all that is needed is to obtain a copy of the court's judgment. That is easier said than done.

    The County Courts, traditionally the place for hearing boundary disputes, keep their records for only 6 years. And who can blame them when litigation generates mountains of paperwork? So, unless the parties to litigation kept a copy either of the Judgment (if it was given in written form) or of a transcript of the case, or unless the court ordered the line of the boundary to be registered as an Exact Line of Boundary, then no-one can now say where the County Court decided that the boundary should be.

    High Court decisions are written-up and published as the High Court is often used to establish new legal precedents. Such cases may be found at BAILII, the British and Irish Legal Information Institute's web site.

    The Land Registration Division of the Property Chamber (First Tier Tribunal)'s web site has a Decisions Database that gives access to any important Decisions made by the Tribunal up until 31 May 2015, and all of the Decisions from 01 June 2015 onwards.

     

    Lost Title Deeds

    Once upon a time it was a rare occurrence to find that there were no title deeds available for one of the properties involved in a boundary dispute. If there were no such deeds the explanation was usually that the deeds had been destroyed in a fire that had occurred at the offices of the solicitor who was holding the deeds at the time of the fire.

    These days it has become common for no deeds (other than the title register and title plan) to be available for one or both of the properties involved in a boundary dispute. There is a different reason for this very worrying trend.

    In the days prior to the Land Registration Act 2002, when there were a great many unregistered titles to land, house purchases made up most of the property transactions. The vast majority of house purchases were made with funding from mortgages. Mortgage lenders protected their own interests by taking possession of the title deeds until such time as the mortgage was repaid. Given that the average mortgage was for a term of 25 years, and that the average householder moved house every 7 years, the average householder never saw the title deeds to any of the houses that he, she or they occupied.

    It was the ambition of the drafters of the Land Registration Act 2002 that all land that was unregistered as at 2002 would quickly become registered because of that Act's greater list of triggers for first registration. This move will have delighted the mortgage lenders whose interests were now protected by a charge registered against the registered title. These mortgage lenders could free up expensive storage space by returning the pre-registration title deeds to the registered proprietors. Those same registered proprietors, having no previous knowledge or experience of title deeds, were pre-disposed to destroy the pre-registration title deeds.

    The worrying consequence of this is that each future sale of a house will be made on the basis of Transfers of the Whole of the land in the title: such transfer deeds do not have associated transfer plans but rely on the title plan for the description of the boundaries. Those title plan boundaries are general boundaries, which means that in future no purchaser will be told the exact line of any section of boundary surrounding the land that they purchase (except in those very few cases where an Exact Line of Boundary has been Registered).

    To return to the context of the present page, the very worrying feature of the present trend is summed up in the very first sentence on this page:
    "Rule No 1 is to ignore the title plan."

    This widespread destruction of "originating conveyances" renders more or less impossible any attempt to determine with any degree of precision the paper title boundary.

    In such cases, boundary experts will still need to understand as fully as possible the history of a disputed boundary by considering all of the evidence listed under the heading "The vendor's intentions".

     

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