Ian Quayle, CEO of IQ Legal Training, provides some practical tips for busy practitioners.
The issue of boundary identification is a problem for both residential conveyancers and commercial property lawyers for a number of reasons:
- The lack of reliable information on which to base the decision where a legal boundary actually sits.
- Over-reliance on unreliable or inaccurate plans to locate boundaries.
- The willingness of neighbours to litigate over what are quite frequently small discrepancies as to the location of a boundary between plots.
- Particularly with residential conveyancing, an unwillingness on the part of clients to pay to ensure boundaries are clearly defined when created or to ascertain the location of a legal boundary when buying a property where the boundary was created a long time ago, is currently in dispute, or where the buyer needs to know the precise location of a boundary to resolve access or other relevant issues.
Boundary Sensitivity
The identification of the boundary to a property can cause problems in the following circumstances:
- When boundaries cannot clearly be identified.
- When there has been or is currently a boundary dispute.
- When the buyer client needs to know the precise location of the boundary in order to achieve an objective.
- When there is a risk of an adverse possession claim being made or where a claim is being made due to neighbour encroachment.
Before we embark on this examination of boundary issues to identify if boundary sensitivity could cause a problem for our buyer clients, it is important to ask about their objective in connection with the acquisition.
A secondary issue is to set realistic client expectation:
- Explain to clients that a Land Registry title plan cannot be relied upon to identify the extent of a registered title – see Section 60 Land Registration Act 2002: a title plan reveals a general boundary and not a legal boundary.
- Explain the problem with identifying a legal boundary in that, unless there is evidence of what was intended when the boundary was created, a determined boundary application has been made successfully to the Land Registry, or the current owners of respective properties have entered into a formal boundary agreement, a legal boundary will be difficult to establish.
- Arm clients with estate agent’s particulars, survey or valuation, title plan, property description from title documents and ask them to confirm what on the inspection of the property is consistent with the documentation which they have been provided.
- Advise clients as to the problem with boundary identification.
Be careful with the boundary identification of the property. Clients should be told of the description of the property (from the property register or the root of title) and provided with a copy of any relevant plan. Where the client is provided with a copy of the title plan, a warning should be provided that the title plan cannot be relied upon due to Section 60 of the Land Registration Act 2002.
In Durden v Aston [2012] EWCA Civ 157, the Court of Appeal held that the judge had erred in being particularly influenced by a Land Registry plan which delineated a physically impossible arrangement. Looking at the plan without considering the position on the ground rendered the plan meaningless. Accordingly, the conclusion of the judge conflicted with the preponderance of the evidence and was set aside.
Legal boundaries are not visible on the ground that divide land ownerships. Lines on plans are not exact and a legal boundary is very rarely precisely identified on the ground or in the deeds or documents of title.
Physical boundaries are features visible on the ground such as fences, walls and hedges.
Legal boundaries are often difficult to identify because the deeds and title information are silent, and there are legal presumptions used to determine ownership.
As a result of these problems, most land in England and Wales is registered with general boundaries and so the location of the legal boundary cannot be identified.
The case of Pennock v Hodgson [2010] EWCA Civ 873 is very useful as Mummery LJ provided a set of principles to follow when dealing with boundary problems:
- The starting point is to identify the conveyance which first separated the relevant properties – “the root conveyance”.
- It is necessary to then interpret that conveyance, especially any description of the properties in the parcels clause and any plan that is attached. He drew attention, however, to the dangers of over-reliance on plans. Like any question of construction, the task is to identify the intentions of the parties to the root conveyance.
- If the parcels clause is unclear, the precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the root conveyance.
- There is no reason for preferring a line drawn on a plan, even an Ordnance Survey plan, to other relevant evidence.
Extrinsic or “background” evidence is thus often useful, indeed often decisive. In our Neighbours X and Y example, the “background” material may be evidence about the location of the fence at the time of the root conveyance, perhaps from a predecessor in title or from an old photograph.
The legal boundary to a plot of land or property cannot ever properly be transferred onto a plan and so we must proceed with caution with all plans that we are provided with or with which we provide for our client.
So, what can be done to assist clients?
- As we have already seen, set realistic client expectations.
- Use a chartered land surveyor to produce a report or plan to identify the boundary in question.
- When creating a new boundary, use national grid co-ordinates or refer to measurements and physical features to identify the boundary.
- If there is a dispute, consider the Property Protocols Boundary Dispute Protocol at www.propertyprotocols.co.uk.
- Use the determined boundary procedure at the Land Registry where:
- a) There is agreement with the neighbouring landowner where the boundary is located and where a land registry compliant plan has been produced.
- b) Or there is a risk of an adverse possession claim as the determined boundary application stops time running for an adverse possession claim.
On the issue of boundary agreements, a word of caution is required as in Gibson v New [2021] EWHC 1811 (QB) Murray J held that a Settlement Agreement, which incorporated an expert determination provision, amounted to a boundary agreement. Murray J went on to say that that Settlement Agreement (and therefore the boundary agreement):
- … does not bind successors in title…
- … has no proprietary effect binding third parties…
I concede the case had a peculiar set of facts, but nonetheless the conclusion has significant implications for the law of boundaries as, in short, we have High Court authority stating that a boundary agreement is personal to the contracting parties, meaning that any boundary dispute which was resolved by way of a boundary agreement (either found to exist by the Court, or formed as a compromise) could be re-opened once one party to that boundary agreement sells their property. It would also mean that a fairly standard case raised in boundary disputes would no longer be available.
The case has not been appealed and it will be interesting to see how future courts deal with this issue.
Conclusions
When acting in conveyancing transactions, decide the following:
- Is boundary sensitivity an issue?
- Can legal boundaries be identified?
- Does the client have reasonable expectations of the conveyancing process?
- Do we ask the client to check during inspection the extent of the land being inspected against how the land is described or identified in the title documentation, survey/valuation, and or agents particulars?
