Disputes frequently arise concerning the location of the boundary between two neighbouring properties where one party believes that the other has encroached on their land. According to the Royal Institute of Chartered Surveyors disputes about boundaries (and related neighbour disputes) have steadily increased in England and Wales during the Covid-19 pandemic.
Owners sometimes mistakenly believe that the Land Registry title plan determines the location of the legal boundary. However, Land Registry title plans are subject to the Land Registry ‘General Boundaries Rule’. Land Registry title plans are based on Ordnance Survey mapping that is not precise and has a tolerance. Ordnance Survey maps which were originally drawn up for military purposes do not map legal boundaries, they only map physical features. Any analysis that attempts to create a legal boundary by reference only to the Ordnance Survey mapping is flawed and unlikely to carry weight when put to legal scrutiny.
The determination of the location of a legal boundary is complicated and can only be determined by a court or tribunal making a finding to that effect or alternatively by the parties reaching agreement and entering into a boundary agreement to be registered at the Land Registry.
When the courts and tribunal seek to determine a legal boundary they will have regard to evidence such as the pre-registration title deeds and plans. In addition, regard to any anecdotal evidence that may survive of physical features which may have existed on the ground and which relate to the boundary created by the deed including historical photographs or evidence of acts of the parties or their predecessors that might be relevant.
It is important to keep in mind that a legal boundary can move under certain circumstances for example as a result of adverse possession. Accordingly, it does not necessarily follow that the legal boundary between two properties is in the same place as the paper title boundary.
The courts also recognise some presumptions in law which can be rebutted where there is evidence to the contrary. For example, the hedge and ditch presumption: where a ditch is dug along a boundary and a bank raised or hedge planted along one side of the ditch, it might be presumed that the boundary runs along the side of the ditch opposite (further from) the hedge or bank. Other evidence might rebut this presumption, such as the ditch not having been dug by/for the owner of the hedge side. Importantly, the hedge and ditch presumption does not override the title deeds if they show the position of the boundary.
As mentioned boundary disputes are complex and usually each party will need to instruct a surveyor to prepare a CPR compliant report to produce to the court and exchange with the other side.
It is therefore important to seek legal advice as to your legal boundary before attempting to move an established boundary.
Often these disputes can be costly and create much ill feeling between neighbours. We find that mediation as an alternative to litigation is often a much quicker and cheaper approach to trying to resolve a boundary dispute but both parties must agree to engage in the process. Litigation should be viewed as a last resort.
Quinn & Co have experience of dealing with rights of way disputes. If you wish to discuss your case and see how we can help you please contact Joseph Quinn on 01392 248858 or email us at mail@quinnlaw.co.uk or fill in our contact form and we will call you as soon as possible.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such.