The unfortunate reality….

…that boundary disputes do occur and will continue to occur

Disputes with neighbours regarding boundaries are, of course, undesirable and undoubtedly are best-avoided if possible. However, they have occurred since time immemorial, ever since people have laid claim to an area of land, and it seems likely that this will continue to be the unfortunate situation into the foreseeable future.

Disputes of this type tend to be stressful and emotional, and generally nobody wishes to be ‘at war’ with their neighbour but also there are occasions when even the most mild-mannered and tolerant person feels like they must stand up to protect their rights and their property.

In order to properly assess the legal boundary, it is essential that expert advice is obtained from a surveyor knowledgeable and experienced in this subject; if not, there is a significant risk of incorrect assumptions to continue and the possible needless perpetuation of the disagreement. To properly consider and advise regarding boundaries, a surveyor needs to be part surveyor, part lawyer and part detective.

The short answer is no: The Land Registry Title Plan must not be used to try to decide the location of any boundary. That is not the purpose of the Title Plan.

Although the legal boundaries of a property may coincide with the boundaries shown at the Land Registry Title Plan, the Land Registry Title Plan is intended to show only General Boundaries as a public record of, in general terms, who owns what.

‘General Boundaries’ are as described in Section 60 of The Land Registration act 2002 as follows:

  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.

It is, therefore, essential that the Land Registry Title Plan is not used for this purpose.

The only documents which legally describe where the legal boundary are the Conveyance documents.

This might be a Conveyance of land before Registration in which case the most important document is the first, oldest Conveyance which describes the newly created parcel of land sold from a larger parcel; after that, the legal principle of nemo dat quod non habet applies, which is to say that it is not possible to sell something that you do not own.

More recently, since Registration of Land in this country, a Transfer of Part is the equivalent of the first Conveyance and this is the definitive document to describe the newly created parcel of land, and so the document of legal importance in the consideration of boundaries. The first conveyance or Transfer of Part is what would be legally described as the ‘operative deed’

It should be noted that the plan within a Conveyance is referred to as the Paper Title Plan – this is the relevant plan to show where your legal boundary was intended to be. The Paper Title Plan must not be confused with the Land Registry Title Plan, which shows only what are known as General Boundaries; this must not be used to decide the locations of legal boundaries

An appropriately experienced surveyor should be able to properly assess the parcel clause of the appropriate conveyance, together with the Paper Title Plan, carry out an accurate measured survey, assess and consider relevant physical features and to use all of this evidence to draw conclusions.

These conclusions might be sufficient to be able to give an opinion with a reasonable degree of certainty but it is far from unusual that the evidence is not wholly clear and precise and so any conclusions would inevitably be limited by this. Also, it would be very rare that, even in seemingly the most certain of cases, a Lawyer of Barrister acting for the other party could not find a reason to contest any such conclusions.

So, at best, any surveyor, even the most experienced surveyor can only provide an opinion; hopefully an expert and well-informed opinion, but, at the end of the day, just another opinion.  There is no surveyor who can tell you definitively the correct location of a disputed boundary.

The unfortunate reality is that the only person who can give a definitive decision as to the location of the disputed boundary is a Judge in Court. 

Firstly, it must be borne in mind that the reference documents for the investigation of a legal boundary are the conveyances.  The Land Registry Title Plans must not be used for this purpose; they do not show legal boundaries.

With regards to the conveyances, the document which is most relevant is the first conveyance when a parcel of land was separated from a larger area of land; this is the document which determines what was separated-off; what was bought.  This might be a Conveyance of land before Registration in which case the most important document is the first, oldest Conveyance or, for Registered land, this will be the Transfer of Part.

After this, any subsequent sale is simply the onward sale of the same parcel of land; it cannot change unless by some additional formal sale (either to enlarge or reduce its extent).  Any onward sale must comply with the legal principle of nemo dat quod non habet applies, which is to say that it is not possible to sell something that you do not own.

Hopefully, the relevant conveyances of neighbouring parcels of land will correspond and thus, other than the normal (and often very significant) difficulties of interpreting the intentions of the parties from what is often a poor word and plan description in the conveyance, there should be no inherent conflict between these documents.  However, unfortunately sometimes the descriptions of the boundary between the two neighbouring parcels of land may do not correspond.

When this is the case, as a starting point for example relating to sales of houses on a housing estate or the selling-off of parcels of land for individual development plots, the boundary as described at the first parcel of land to be sold will take precedence. This first sale represents the first division of the larger parcel of land and, after selling that, the original owner (of the larger parcel of land) could not then sell any part of that separated parcel of land to another new owner because, as above, you can’t sell what you don’t own.

An agreement as to the location of the boundary could be an informal agreement, which could even be a verbal agreement but this is not desirable due to its evidential shortcomings if disputed in the future by either side.

Preferable would be a documented agreement, probably including a plan, and more preferable, would be a formal agreement, ideally in the form of a deed and with this registered with Land Registry.

An alternative is what is referred to as a Land Registry Determined Boundary which comprises the formal and highly accurate permanent recording of the precise position of a legal boundary under rule 17 of the Land Registration Rules 2003; this requires the provision of a plan complying with very strict detail and accuracy rules.

If the apparent inconsistency of the occupied land as compared to the boundaries shown at Land Registry is due simply to an inaccuracy of the Land Registry Title Plan then this is not a matter for an adverse possession application.

In a situation such as this, what is referred to as the ‘squatter’ should consider an application to alter their title plan or their title plan and their neighbour’s title plan or possibly just their neighbour’s title plan to show the boundaries more accurately.  This application would need to be made to Land Registry identifying the title(s) to be altered and making clear the nature of the alteration sought and the basis for this.

An application for adverse possession would be appropriate where the mis-match between the land boundaries and the occupation of the land is not due to a boundary recording error but is as a consequence of the occupancy of land which it is acknowledged is not within the ownership of the squatter but to which the squatter wishes to make a legal claim.

The essential requirements of a successful Adverse Possession application are as follows:

  • the squatter has factual possession of the land
  • the squatter has the necessary intention to possess the land
  • the squatter’s possession is without the owner’s consent
  • all of the above have been true of the squatter and any predecessors through whom the squatter claims for at least 12 years prior to the date of the application

However, it must be noted that there are significant differences between an application for Adverse Possession of land which is not Registered with Land Registry and land which is Registered.

For unregistered land, generally, a squatter’s application will be successful after 12 years of confirmed validated adverse possession of the land. Thus, the legal title of the former owner will be extinguished and this former owner’s right to recover possession of the land will be legally barred.  The effect is that the squatter will obtain legal title of the land but this will be what is known as possessory title rather than absolute title; possessory title can be upgraded to absolute title after a further 12 years.

For registered land, the situation is less straightforward as an intended consequence of the Land Registration Act 2002.  The process for registered land is that, after 10 years of claimed adverse possession, a squatter can submit their application to Land Registry. Following this, the paper title owner has 65 working days to respond to either agree or challenge the application.  If the application is challenged by the owner and if the applicant cannot successfully counter this according to some specific legal conditions, the owner’s challenge to the adverse possession application will stand. The legal owner then has a further two years to evict the applicant from the land. Only after this further two years, if the owner has not taken action to regain possession, can the applicant re-apply to Land Registry to be successfully granted possessory title.

How can we help?

At Smith Marston, we are able to advise with regards to boundaries and in relation to boundary disputes.

That may be some initial advice or an opinion of the boundary location through to a CPR35 Expert Witness report and, if necessary, attendance at Court as an Expert. Philip Smith has over 20 years of dealing with boundary disputes, including Expert reports and he has appeared in Court on numerous occasions in an Expert Witness role.