Disputes over the position of a boundary or rights over a neighbouring property, are often impossible to resolve to the satisfaction of both parties, and in many residential cases the costs involved in litigating the matter are many times the value of the land involved. Before embarking on this very difficult and costly litigation the parties should consider the following:
Boundary Disputes - What Evidence Can You Obtain to Show Where the True Boundary Lies?
Whilst these might assist, unfortunately there is almost universal inaccuracy or accuracy limitations with the plans used for new building estates, those used in conveyances, and even those used by the Land Registry. Even if you have an accurate plan attached to a deed, such as the original transfer or conveyance, the limitations of accuracy are at best 2m on a 1:1250 plan and up to 20m on a 1:10,000. Owners often wrongly assume that the Land Registry entries are their 'deeds' whereas the old pre-registration deeds may be a far better indication of the position of the boundary at the time of the last sale.
The Land Registry plans do not set out to specify the boundaries and only show the approximate position under the 'General Boundaries Rule'. Indeed the very useful Land Registry Practice Guide 40 available online at https://www.gov.uk/government/organisations/land-registry states that every official copy of a title plan is supplied with the following note: "This title plan shows the general position of the boundaries: it does not show the exact line of the boundaries. Measurements scaled from this plan may not match measurements between the same points on the ground. For more information see Public Guide 7 Title plans".
What do your Deeds Show and Does it Matter?
Once an unregistered title is registered at the Land Registry, the old title deeds are redundant - these are then known as ‘pre-registration deeds’. Unfortunately many pre-registration deeds are lost or thrown away by land owners who file cases on the basis of precise measurements from photocopies of Land Registry plans - and then find out at Court that these are meaningless.
Even if you could say for certain that a boundary was in a particular position at some time in the past, there are legal doctrines which may have the effect of making the current (moved) boundary the correct one, and the rules of ‘equity’ (Ie rules based on fairness) will be used by the courts to prevent unfairness or exploitation of an innocent party. In some cases ‘squatters rights’ over unregistered land exercised for 12 years will settle the matter, but in relation to registered land it is very unlikely ‘squatting’ will achieve anything if the true owner objects.
Judges faced with a boundary dispute will often make a decision on the basis of what they see on the ground as in many cases there is no other clear evidence on which to base a decision. In some cases judges have ignored clear measurements marked on a deed plan if the circumstances show that this would be unfair or results in an interpretation at odds with what the original parties agreed.
"Easements" or Rights over Other Property
Disputes may arise over shared access ways, drainage rights, rights of light, rights to go onto the other owners land to carry out repairs, and the similar rights that your neighbour may claim to have over your land. Once again, there is more to it than the information shown on the Land Registry entries. Your rights over others and others' rights over your land (known as 'easements' or 'reservations of rights' as appropriate) may be contained in a deed referred to on the Land Registry entries, but may not be shown if they are 'implied easements' or 'easements of necessity' or where it was clear when the land was sold that it was going to be used in a certain way. Easements may be acquired by long user of upwards of 20 years, known as 'easements of prescription', but may be limited to a particular type of use, not just general use.
It may be necessary to obtain statutory declarations from previous owners or other neighbours to prove usage over a period of time.
What Approach Should You Take?
If you are faced with a domestic boundary or property rights dispute that cannot be settled amicably by compromise, then litigation may cost upwards of £10,000 to £30,000 and it is likely that you will not be able to sell your house if potential purchasers learn of the dispute. Mediation and arbitration might be a much better option, and whether you win or lose you will have to deal with living next door to the other party after the case finishes. If one party decides that it is a 'matter of principle' it might be better to move house!
Consider All of the Information
If an issue arises you need to find all your real deeds, not just the Land Registry documents, and also if possible see what your neighbour's deeds say. It is not unusual for the deeds to be so inaccurate that they show that you both own the land in question. It may be a good idea to have an accurate boundary plan prepared by a properly qualified specialist land surveyor to show what the position is, and see how this compares with the deeds. Old Ordnance Survey maps showing the position of the boundary as at the last sale can be obtained at modest cost (see http://www.ordnancesurvey.co.uk/). Aerial or family photos may show the physical positions over the years. It may be possible to track down previous owners of your land or the land next door using www.192.com to see if they can supply evidence of the position of the boundary.
Are You Insured?
Check your domestic house insurance or any existing legal expenses insurance you hold too, because often boundary disputes are covered. You should of course notify the insurer before taking any steps if there is a possibility that you may be covered and they will appoint surveyors to deal with it. They may be able to use your solicitor or a local solicitor. If lawyers are involved they will need to visit the site to see how the ‘real world’ relates to the ‘paper world’.
In some cases it may be possible to insure against possible future claims for breach of covenants - known as Title Indemnity Insurance.
Other Useful Materials
An excellent and very readable plain-English guide to boundary issues is 'Anstey's Boundary Disputes' available from the RICS online bookshop (http://www.rics.org/uk/shop/) and it also contains useful information about fences, hedges, the dividing boundary line between semi-detached or terraced houses, and a many examples.
You might consider buying a scale ruler if you intend comparing any maps or plans. The Land Registry also publishes a number of Practice Guides on their website which may be of assistance.
How We Can Help?
If the dispute is unresolved or is one that you cannot ignore then you should contact us as soon as possible, with all relevant information such as pre-registration deeds, photos, plans, etc. We can then give you an objective view of the matter.
For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.