Leaps and boundaries

There is anecdotal evidence that boundary disputes have been on the rise during the pandemic, as we all spend more time at home. Will Oakes looks at why these disputes are so common, and how they can be resolved without court involvement

Will Oakes is the dispute resolution department partner at Attwells. He specialises in civil and commercial litigation, with a special interest in property litigation and landlord and tenant matters

We know that the boundaries that define the point of legal separation between one landowner and another are fertile ground for dispute. Perhaps it’s something to do with living on a crowded island, but the adage about Englishmen’s homes being their castles is rarely more apt than in the context of boundary disputes. It’s also true that few disputes carry greater potential for disaster than those that are conducted on one’s own doorstep!

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There has also been some evidence that boundary disputes have been on the rise since the start of the first lockdown of the coronavirus (COVID-19) pandemic, nearly a year ago. Spending more time at home, and many of us using the time to undertake improvements, may have exacerbated existing tensions with neighbours, or created new ones.

Boundary disputes can be financially ruinous for clients and can have the effect of permanently tainting a client’s enjoyment of their property. It is important therefore to contain and resolve those disputes as quickly as possible and ideally without court involvement.

In this article, I look at why boundary disputes are so common, identify a method for determination of the position of a legal boundary, and recommend methods of dispute resolution. This article is intended to describe a process which will avoid the commencement of proceedings by advocating early and thorough investigation of a client’s case, an assessment of what it is that a client actually wants to achieve, and the subsequent pursuit of alternative dispute resolution.

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The problem with title plans

In an age of land registration and GPS, we might ask why boundary disputes still arise. The issue is, to an extent, rooted in the method by which the extent of registered land is recorded by Land Registry.

Land Registry uses Ordnance Survey (OS) maps to identify property boundaries, in conjunction with the 'general boundaries' system of land registration. Included in the Land Registration Rules 1925 was the rule concerning general boundaries which provided that: "the exact line of the boundary will be left undetermined – as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far which said piece of land has for a depth any portion of an adjoining road or stream". Therefore, even though it may be obvious that the line on the map follows a certain physical feature, it will not be obvious who actually owns the feature or whether the boundary runs down one side or along the centre of the feature. As a consequence of this rule, there is a significant difference between a definitive legal boundary that may be provided in legal documents, and a general boundary indicated on a title plan.

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This is unfortunate, given that most landowners will refer firstly to a title plan in order to understand the physical extent of the land that they own.

The issue is compounded by the fact that the OS maps that title plans are based on are themselves inherently inaccurate. The scale commonly used is 1:1250, and the OS states that they are 99% confident that their mapping at the scale is accurate to give or take 1.1m when comparing the distance between two features that are up to 60m apart. That’s quite a margin for error when the thickness of a fence panel about 0.05m!

So, if we can’t rely on title plans, how can we deduce the true position of a legal boundary?

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Determining the position of a legal boundary

Boundary disputes are generally determined in the same way for registered and unregistered land. In summary, this involves a four-stage process.

  1. The court will look at the words and plans used in the conveyance which divided ownership of the land either side of the boundary. Conveyancing deeds are interpreted in the same way as other written legal documents, in line with the principles developed in the leading cases on contractual interpretation. However, the key question is: “What would the reasonable layman think he was buying?” At this stage, the court will consider any measurements included in the conveyance itself.
  2. The court may then consider the known physical condition of the land at the time of the relevant conveyance. This could include, for example, old walls, hedges, trees, or posts.
  3. Where the location of the boundary is still unclear, the court will look at extrinsic evidence to determine the precise boundary. There is a wide range of admissible evidence at this stage, although not every type might be available or relevant in a given case. For example, the court may consider:
  1. contemporaneous maps
  2. pre-contractual documents, such as auction particulars, preliminary enquiries and their replies, and architects’ plans
  3. subsequent conveyances relating to the disputed land, where they are of “probative value” and show the conduct of the parties to the original conveyance which created the boundary and successive owners.
  1. Finally, if taking into account all of the above evidence, the boundary is still unclear, then the court may have resort to certain legal presumptions. These presumptions are rebuttable, but may still be applied in the absence of other evidence. The most well known is perhaps the ‘hedge and ditch rule’, but there are a number of others relating to highways, watercourses and other boundary features.

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This shows that, in order to advise a client on a boundary dispute, a good deal of detective work is required at the early stages. It’s worth doing as much research into the history of the boundary as possible, by scouring public records for plans and photographs, asking your client to delve as far as possible into their own records, and taking statements from third parties who have knowledge of the historic position of the boundary.

Once this work has been undertaken, consideration should be given to the commissioning of an expert report (compliant with the Civil Procedure Rules 1998) on the boundary, from an experienced boundary surveyor. While these combined measures will require a material investment in time and resources at the outset, this is an investment worth making. As with all litigation, a party to a boundary dispute needs to understand the merit of their case and its strengths and weaknesses as early as possible. Without that understanding, it is not possible to develop a sensible plan for resolution of the issue.

Resolving the dispute

Boundary disputes have an almost unique potential to incur costs which are disproportionate to the value of the issues in dispute. It is not uncommon for costs of £40,000 per party to be incurred in relation to a dispute involving a strip of land no wider than 12 inches. Such costs are potentially ruinous, and obviously unjustified except in cases where the land in question has some important strategic value.

For this reason, the commencement of proceedings in the County Court must be regarded as a last resort.

Of course, the approach to resolution will be informed, to a degree, by the merit of your client’s case, but it will also be informed by their wider objectives. Once evidence has been compiled and reviewed, it is always worth checking again what your client actually wants to achieve. It may be that, for example, a land swap or sale might be possible as an alternative to third party determination of the boundary. It’s important to think creatively at this juncture, before matters escalate further.

Once your client’s priorities have been established and the strength of their case is known, the choice falls between mediation on the one hand and expert determination on the other.

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As we know, mediation carries the appeal of being quick, informal, relatively low-cost, and infinitely flexible in terms of possible outcomes. However, it can also be inconclusive and, in the worst case, actually push the parties further apart from each other.

Expert determination has the appeal of promising a definitive outcome. However that outcome will be limited to a determination of the boundary only, so if other issues are at stake, some elements of the dispute may be unresolved. Expert determination enables both parties to make submissions, which is important, as parties usually want to feel that they have had their say and been listened to. However, experts do not sit in a quasi-judicial capacity, so they are free to disregard evidence and to determine the issues by exercising their expert opinion.