Andrew Noble LLB (Hons) [Manchester] FRICS, FCIArb

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Property Boundaries & Legal Boundary Disputes

Unfortunately it is a feature of modern life that some neighbours try and gain advantage by demanding more than their strict entitlements to land. Sometimes this may be due to “bare faced” cheek or a “try-on”.

On the other hand, sometimes problems are caused by inadequate conveyancing, especially in an age where conveyancing business is very competitive amongst solicitors and licenced conveyancers, and is all about small margins and high volumes i.e. cut-throat. In other cases it may be that HM Land Registry has contributed to the dispute.

Although boundaries can be horizontal as well as vertical, this section concentrates on some aspects of vertical boundaries, disputes over which, are most commonly encountered in practice.

In some cases the dispute involves a comparison between what the paper owner of the land claims is owned, based on the deed of conveyance for the property, as opposed to alleged claims by neighbours in long occupation of the land in question – adverse possession. That is title claimed is adverse to the paper owner.

This was just the situation concerning a bitter dispute in a five day hearing in the High Court of Justice that Mr Noble was involved in fairly recently; a dispute ultimately and regrettably involving the imprisonment of a retired householder, that hit most of the national press and television

That claim concerned unregistered land. Indeed, the outcome of any particular case may differ according to whether the land is registered or unregistered as there are different rules in relation to each.

Possible Admissible Evidence in Boundary Disputes

Title Deeds are the primary evidence available in boundary disputes and extrinsic evidence is not normally available to vary a clear description in the deed of conveyance. However, such evidence may be allowed to be presented to the court to show what was available at the time the deed was executed and in cases where there is ambiguity.

Evidence of reputed ownership is not normally admissible unless the case involves general or public interest: Mercer v Dene

Public Documents, subject to certain formalities: eg if produced from proper custody would normally be admissible eg planning permissions, or a survey by HM Land Registry or a tithe map.

Church documents may also be admissible: eg ecclesiastical terriers/schedules showing lands of a parish church and adjoining property. Declarations of persons now deceased may also be admitted in certain circumstances.

Although not conclusive, examination of the construction of a boundary feature may also assist in determining the location of the boundary, based on the presumption that a party will normally build to the full extent of his or her land.

Determining Boundary Disputes: The importance of the deed of conveyance

A clear definition in the deed of conveyance will normally be conclusive. However, disputes frequently happen due to inadequate conveyancing. In one case, a Court of Appeal Judge stated, in relation to inadequate conveyancing:

“…this judgment will be understood by every conveyancing solicitor in the land as giving them warning, loud and clear, that the conveyancing technique which may have been effective in the old days to convey large property from one vendor to one purchaser will lead to nothing but trouble, disputes and expensive litigation if applied to the sale to separate purchasers of a single house and its curtilage divided into separate parts.  For such purposes it is absolutely essential that each parcel conveyed shall be described in the conveyance or transfer deed with such particularity and precision that there is no room for doubt about the boundaries of each, and for such purposes, if a plan is intended to control the description and Ordinance map on a scale of 1:2500 is worse than useless. The plan or other drawing bound up with the deed must be on such a large scale that it clearly shows with precision where each boundary runs.  In my view the parties to this appeal are the victims of sloppy conveyancing for which the professional advisors of the vendor and purchasers appear to bear the responsibility.  We are not concerned in this appeal with determining or apportioning that responsibility. This court has to try to reduce to order the confusion created by the conveyancers.”

Per Cumming-Bruce LJ in Scarfe v Adams

Exceptions to a clear description in a conveyance

There are however a number of exceptions to clear descriptions in the conveyancing deeds being conclusive which can give rise to boundary disputes, some of which are:

  • Adverse possession by a squatter for sufficient time of registered Land (Land Registration Act 2002) or for unregistered land (Limitation Act 1980), which may alter the coundaries concerned;
  • Land Registration Act 2002 – involving boundaries of registered land where the boundary is a non tidal river. Section 61(1) provides that the fact that a registered estate in land is shown in the register as having a particular boundary does not affect the operation of accretion or diluvion.
  • Acts by the landowner or his predecessor in title, although not varying paper boundary, as shown on the conveyance, may estop the landowner from taking action in respect of the infringement;
  • Where a single property is divided and there are conflicts in each title, the deed showing the original division will need to be considered ie that go to the root of title;
  • If the deeds contain errors eg do not reflect the true agreement between the parties the equitable remedy of rectification may come into play;
  • Statute may vary deeds.

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