Caution urged when taking on boundary disputes

When the phone rings and a potential client asks 'Do you look at boundary disputes?' most surveyors will bow their heads and groan. This reaction is because boundary disputes are largely seen as unnecessary, trivial squabbles between neighbours.

There is no common trigger for most boundary disputes. Some neighbours live in harmony for many years before deciding to embark on a long, costly argument over who owns the hedge. In other cases, a new owner keen to establish boundaries with a title plan in their hand will start to question whether their neighbour's recently constructed extension is in fact wholly located on their land.

A new boundary is formed among other occasions when a parcel of land is sold, or transferred out of a larger parcel. The area of land transferred may be defined by an existing feature that naturally breaks up the larger parcel, such as a hedge or similar; or it may be defined as a given area such as a hectare.

The transfer or conveyance that creates this boundary is called the operative conveyance. There is no legal requirement to detail the boundary more specifically or register it with the HM Land Registry; this boundary becomes the general boundary.

This document typically contains a parcels clause that describes the land, and to it will be attached a plan based on an OS map. OS works to a level of accuracy that it summarises in two confidence levels, known as relative accuracy and absolute accuracy.

These confidence levels must therefore be taken into account when inspecting on site, and when scaling from the plan. At, say, 1:1,250 scale, there may be as much as a 1.1m error in a line between two points 60m apart. In addition, when scaled up, a line width on the map will itself be 0.3m wide in real terms on the ground. If you imagine two fence posts 60m apart they may be shown between 58.9m and 61.1m apart.

The issue with using the OS mapping is therefore twofold: first, what is the feature shown? And, second, is it shown accurately in the correct location?

When summing up Drake v Fripp [2011] EWCA Civ 1279, Lord Justice Lewison noted that, in Lee v Barrey [1957] Ch 251, an alteration in the filed plan to move a boundary by ten feet (3m) fell under the scope of the general boundaries rule, even though the whole frontage of the plot was only 42 feet (12.8m). But he also stated that a change in ownership of a small strip of land registered under a separate title may well fall outside the scope of that rule.

He then made the following observations.

'(1) Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan or general map shall be deemed to indicate the general boundaries only. The Property Register is the document that supports the Property Title Plan and describes the registered owner, the address and extent of the land and any covenants or charges that there may be over the property. '

'(2) In such cases 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 it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream.'

In short: put away your ruler now, as it is no use trying to measure off the plan.

So, when potential clients in a boundary dispute start a conversation with 'My title plan shows …', it may be more useful to refer them to HM Land Registry plans: title plan practice guide 40, supplement 5. You may well want to consult this yourself if you ever find yourself in the unfortunate position of having to advise on a boundary, as well as making sure you are covered to do so under your professional indemnity insurance policy.

However, I would strongly suggest you refer the issue to an expert instead, such as a land surveyor specialising in boundary disputes. You can also consult the current edition of Boundaries: procedures for boundary identification, demarcation and dispute resolution.

In 2019, I was instructed in a dispute over various boundaries between two properties in Gloucestershire. The general boundaries and conveyance documents both needed careful review against in this instance historic and new features alike.

A developer had purchased a large farmhouse with barns and half a dozen separate surrounding land parcels, which comprised agricultural fields and grazing.

He proceeded to convert the barns into residential accommodation, and reconfigured the access road, an existing farm track, a right of way, and several of the fields and garden areas. The most significant of these works was the construction of a new stable drive, which ran to the north of the farmhouse and linked the southern part of the new access road and the existing farm track to the west.

The farmhouse was then put up for sale along with some of the adjoining parcels of land, with the developer retaining the surrounding land. Eventually a buyer was found, and they reached an agreement with the developer about the extent of fields available for equestrian use and gardens to accompany the farmhouse. The sale was duly completed.

The dispute started over where the public footpath, which originally followed the line of the farm track crossing the site, should go. With the developer retaining the surrounding land and not wanting the footpath to be on the access road to his barn, he stated that this path should go through the garden of the farmhouse.

The developer also stated that the buyer had no right of way over the new stable drive, claiming that the old track ran to the south of the post-and-rail fence forming the north boundary, and therefore also south of the stable drive.

However, the buyer thought that the footpath should follow the stable drive to the north, and that they had a right of access to enable them to empty their septic tank. The issue was that the developer had chopped and changed fences, hedges and tracks, so that no one was really sure where the original track or the footpath were located relative to the new stable drive and northern boundary of the farmhouse.

I was presented with a large bundle of information, as is usual in such cases, and it became apparent from the initial inspection that one of the biggest issues was going to be identifying where the historical features – and therefore extent of titles – were located relative to the current boundary fences, new access drive and stable drive; that is, the works carried out by the developer.

Having reviewed the documents I visited the site, inspected the features and met both parties. Hearing the views of those involved in disputes I have generally found that they can be unreliable, with their evidence often constructed to suit their particular argument. This case was no exception.

As a result, I had to go back to the documents. Several plans from the developer's planning applications showed some detail of what existed before the works. There were also title plans based on OS maps of differing ages, as well as historic mapping, definitive maps showing the routes of the public rights of way, and historic aerial imagery. Other documents were provided by the parties or discovered during my research. I also obtained a copy of the current OS digital MasterMap as a reference plan.

I started by reviewing the title documents and also the transfers prepared for the sale of the farmhouse to familiarise myself with the detail as part of my pre-site visit review. These were part transfer (TP1) forms, which transfer part of the land from a larger registered title, and in doing so form some or all of the boundaries for the first time. The plans used had all been prepared on OS maps of various ages, and all were general boundaries.

However, an area of land indicated on the Land Registry's MapSearch online facility appeared to be unregistered, though this should not have been the case as all the land was registered before the sale by the developer. It is likely that due to the changes to the Ordnance Survey mapping as it was routinely updated it picked up the alterations carried out by the developer.

As noted, the title plans were not clear and therefore a disparity between the two resulted in an area being shown unregistered. This caused some confusion between the parties as to whose title the land should have been registered and raised the further possibility of legal action against the conveyancer for negligence in transferring the land.

One document prepared for the planning application had also been used to prepare the transfers as well as the OS plans. This showed the new boundary fence in relation to the stable drive, and the change to the original track could be seen by reference to the OS plans.

Once I had been able to identify the location of the current features relative to their position on the historic maps, the transfer plans and the extent of land both became clear. I also had the benefit of reviewing the current title plan prepared by HM Land Registry, and my view accorded with its interpretation of the transfers.

This of course suited his argument; nevertheless, the mapping was quite clear in my opinion. My report fully supported the buyer's position and, after a lengthy trial, the judge found in their favour.

The judge also noted that the features that existed at the time of purchase were what the buyer saw, and therefore what the parties understood to be the boundaries, right of way and extent of land for sale.

The judge commented that 'the plans, being definitive not indicative, and being clear in what they show, cannot be changed by extrinsic evidence'. He found that the right of way existed over the stable drive, and that the footpath was also along this route rather than running remotely to the south as claimed.

In this case, the various OS and title plans used proved the value of such evidence by showing changes over time as the features were altered, including the Land Registry's mistaken section of unregistered land that covered the area in dispute.

If used for reference by themselves, these documents may have led to a different outcome than when all the evidence was considered together.

This meant a line could be drawn under the case.