![Andrew Noble LLB (Hons) [Manchester] FRICS, FCIArb](images/andrew_noble_logo.gif)
Contact details
T: +44 (0) 845 299 6760
F: +44 (0) 845 299 2760
skype: andrew.noble0860
andrewnoble@NobleADR.com
Please read this website's Legal Notice
Determining Boundary Disputes – some principles
Ambiguity and the principle falsa demonstratio non nocet.
In cases of ambiguity, in order to resolve the dispute, that causing the ambiguity may sometimes be disregarded, e.g. if the description in the deeds is clear, but there is further erroneous unclear description added, the latter may be disregarded applying the principle: falsa demonstratio non nocet.
Plans and written descriptions
Bearing in mind Cumming-Bruce LJ’s cautionary words (above) in Scarfe v Adams, to be of assistance, a plan will need to be clear, detailed and free from ambiguity. Further, if, as often happens, a conveyance deed uses both a description and a plan, the words of the conveyance will need to clearly state which is to prevail if there is ambiguity. This may assist in resolving the boundary dispute. Thus, sometimes the plan is subordinated to the descriptive words in the deed (by using phrases such as “for identification purposes only” or similar) and sometimes not (by using phrases such as “more particularly described on the plan annexed hereto” or similar) .
Where a plan is attached but not referred to in the deed of conveyance, it can be referred to. Leachman v L K Richardson Ltd. This may assist in resolving the boundary dispute.
An attached plan may also influence interpretation of the deed of conveyance. Tibaldi v Wiseman & Kemp. This may assist in resolving the boundary dispute.
Extrinsic evidence may also be introduced to construe a conveyance of land where the plan and deed disagree. Scarfe v Adams This may assist in resolving the boundary dispute.
Subsequent Conduct
It may be that such conduct is admissible evidence, but it is not free from controversy: Neilson v Poole This may assist in resolving the boundary dispute.
Presumptions
Legal presumptions also exist which may assist parties’ boundary disputes where boundaries are defined with reference to physical features of the land: e.g. hedges and ditches, highways, roads, pipelines, railways, apartments, houses, rooms, waste land, lakes, islands, rights of way, beaches, seashore, canals, and rivers. There is also a presumption of validity in favour ancient documents that are 20+ years old.
Boundary Agreements to settle disputes
Adjoining owners may agree the line of the boundary or boundaries following a dispute. Boundary Agreements these days do not need to be formally recorded in writing or contained in a deed to be binding. Often the court will need to hear evidence as to whether there is evidence of agreement if the parties disagree as to whether there is agreement. Accordingly a deed setting out the boundary agreement is much to be preferred, or at least some form of writing.
Land Registry Boundaries
Although this was not always the case, the boundaries of properties registered at HM Land Registry are general boundaries unless shown to have been determined. A general boundary does not determine the exact line of the boundary or who owns the boundary feature (LRA 2002; s. 60). This means that it is possible for an area of land to be within a registered title, even though it falls outside the red edging on the title plan. Conversely, it is possible for an area of land not to be included within the registered title, even though it is within the red edging on the title plan. In other words, it is not possible for Land Registry to define the precise position of the boundary in question.
Trespass & Self Help
Where boundaries are disputed it is not unusual to have one or more parties alleging that the other is trespassing (and/or guilty of nuisance). Trespass is a tort and is actionable without proof of damage. Further, the extent of the trespass, in theory at least, is irrelevant.
Self help remedies by the Claimant, without recourse to litigation, are not recommended. In the case of MacNab v Richardson the appellant homeowner (R) appealed against a decision that she was not entitled to have exercised the remedy of self-help in relation to the encroachment of a fence put up by the respondent homeowner (M). R and M were neighbours. A boundary dispute had arisen in relation to the correct demarcation of the rear boundary between their properties. The boundary was, subsequently, determined by court order. M erected a fence along the boundary line. Later, M laid a new concrete foundation along the boundary line for the purposes of installing a new fence. M accepted that those foundations encroached, by a matter of inches, across the boundary and into R's property although the fence posts and mesh wiring were properly erected along the boundary line. Thereafter, the fence moved so that various parts of it began to encroach, by a few inches, into R's property. R did not seek any further legal recourse against M but instead removed the offending fence posts and mesh that crossed the boundary. M brought proceedings against R for damages for trespass. The judge concluded that, apart from minimal movement due to settlement and the admitted encroachment of the concrete foundations, the fence had remained on its declared legal boundary and there had been no possible justification for R's action in removing it. R submitted that the judge, having determined that the fence had moved, had been wrong to conclude that it had remained on the declared legal boundary until she had removed it.
It was held by the Court of Appeal, that the case was not one in which the remedy of self-help or abatement was or should have been available to R. There was no urgency about the situation, since it had existed for some two years. While there had perhaps been some seasonal variation in the marginal encroachment, it was not a clear case and not one in which, given the history of litigation between the parties, it was appropriate to resort to self-help rather than use the court process. It was unclear whether there was an internal contradiction in the judge's findings, but even if there was such a contradiction and the judge had not expressly considered the impact of a marginal encroachment on R's land, she had been entirely correct in finding that there was no possible justification for the R's actions. It was plain that R had not been entitled to do what she did and had therefore trespassed on M's land and property.
Clearly if the remedy of self help is to be used, the circumstances must warrant it, namely in clear and simple cases or in an emergency. Further, and in any event, the remedy must be exercised promptly Burton v Winters
Access Orders and Access to Neighbouring Land Act 1992
A person who, for the purpose of carrying out works to any land ('the dominant land') desires to enter upon adjoining or adjacent land ('the servient land') and needs, but does not have, the consent of some other person to that entry may apply to the court for an access order against that other person. The court shall make an access order only if satisfied that the works are reasonably necessary for the preservation of the whole or any part of the dominant land and that they could not be carried out, or would be substantially more difficult to carry out, without the entry upon the servient land.
The court shall not make an access order where it is satisfied that were it to make such an order:
(a) the respondent or any other person would suffer interference with or disturbance of his use or enjoyment of the servient land; or
(b) the respondent or any other person (whether of full age or capacity or not) in occupation of the whole or any part of the servient land would suffer hardship; and
(c) in either such case to such a degree by reason of the entry, notwithstanding any requirement of the Access to Neighbouring Land Act 1992,(“the 1992 Act”) or term or condition that may be imposed thereunder that it would be unreasonable to make the order.
Where the court is satisfied on an application made under the 1992 Act that it is reasonably necessary to carry out any basic preservation works to the dominant land, those works shall be taken for the purposes of that Act to be reasonably necessary for the preservation of the land.
If the court considers it fair and reasonable in all the circumstances of the case, works may be regarded as being reasonably necessary for the preservation of any land or as being basic preservation works notwithstanding that they incidentally involve making some alteration, adjustment or improvement to the land or the demolition of the whole or any part of a building or structure comprised in or situate upon the land.
Where works are reasonably necessary for the preservation of the whole or any part of the dominant land, the doing to the dominant land of anything which is requisite for, incidental to, or consequential on, the carrying out of those works is treated, for the purposes of the 1992 Act, as the carrying out of works which are reasonably necessary for the preservation of that land, and 'works' and 'carrying out of such works' are construed accordingly. The 1992 Act provides for inspection of the dominant land for certain purposes.
Boundary Dispute Resolution Processes
A useful introduction to the various types of dispute resolution processes normally used by disputing parties can be found here and are as follows:
Private Negotiation
Public Litigation
Private Arbitration
Private alternative dispute resolution (“ADR”):
Mediation
Conciliation
Expert Determination
Neutral or expert evaluation.
Choosing which Dispute Resolution Method
|
Litigation |
Arbitration |
ADR |
Control of proceedings |
Limited as subject to CPR |
Subject to arbitral agreement, institution rules and arbitrator |
Parties determine procedure in conjunction with neutral facilitator |
Choice of tribunal or neutral |
Limited as subject to CPR |
Yes |
Yes |
Binding process |
Yes |
Yes |
No unless contract entered |
Decided by third party |
Yes |
Yes |
No |
Providing precedent |
Yes |
No |
No |
Determination of liability |
Yes |
Yes |
No |
Adversarial |
Yes |
Yes |
No |
Limited to legal remedies |
Yes |
Yes |
No |
Confidential |
No, a hearing may be in public and some court records available to public |
Yes |
Yes |
'Without Prejudice' |
No unless communications fall within the rule |
No unless communications fall within the rule |
Yes |
Appeal on a point of law |
Yes |
Yes |
No |