Advice on 'Stream' Boundary & Ownership

Advice on 'Stream' Boundary & Ownership

Postby WarbirdD » Fri Jan 06, 2017 12:47 pm

Hi all, firstly a thank-you for all the useful info and advice on this site. As first time buyers last year, it has been incredibly helpful and informative!

I'm just looking for a bit of input and advice based on a provision in our deeds which affects our boundary. Our house is a semi-detached property built in the 1860s on a small lane and was originally bordered to the east by farmland. As happens in small towns, this has gradually been replaced by housing developments but we are lucky enough to have an extra 1/3 acre of garden in addition to our 'normal' garden which has never been built on. To one side of our land is a housing estate built in the '90s, to the other side are the gardens of a row of 4 terraced houses built around the same time as ours.

However, bordering the rear of our land is a small stream and to the other side of this is an undeveloped piece of land (approx. 1.5 acres) which is surrounded by houses. I've recently learned that this land is due to be passed from the current owner to a local businessman at some point in the future which means it is likely to be developed. Whilst it is nice having more green land to the rear of our garden, we of course understood that it would likely be developed in the future and have no problem with that. We just want to be pro-active & ensure that our boundaries will be respected when the time comes and that's where the provision in our deeds mentioned earlier comes in. I'm not yet able to post links or photos (my first post) which would make things a lot clearer.

The provision reads as follows:

A Conveyance of the land in this title dated 19 August
1969 made between (1) X (Vendor) and (2) X (Purchasers) contains the following provision:-

"AND ALSO THE bed of the said stream as at present flowing for a
distance of Seventy five feet only from the Eastern boundary of
Ordnance Survey Number 255a TOGETHER WITH the right to erect and
maintain a good and sufficient fence on the South Western bank of the
said stream as at present flowing and as close to the said stream as
practicable for a distance of Seventy five feet from the Eastern
boundary"
NOTE:- Ordnance Survey Number 255a referred to was not further defined
within the Conveyance.

As far as I interpret it, it is the section of stream along the rear of the large garden that we own as the rear of the garden is pretty much bang on 75 feet. The rest of the stream then runs along our rear access track (approx. 220 feet long) and is presumably the standard riparian scenario. It is the 'right to erect a good and sufficient fence' on the opposite bank of the section we own that concerns me. The previous owner of our property bought it in 1969. At that time we have learned the vendor in '69 also owned the land on the opposite side of the stream and presumably sold it off later to it's present owner. With that in mind, should I just go ahead and erect a fence for the 75 ft on the opposite bank now (it doesn't appear that the provision was ever used by the previous owner of our property) so that it is established in case of future development and to ensure protection of our bit of stream?
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Re: Advice on 'Stream' Boundary & Ownership

Postby MacadamB53 » Fri Jan 06, 2017 2:31 pm

Hi WarbirdD,

should I just go ahead and erect a fence...

having interpreted the wording as you have, I'd erect a fence.

Kind regards, Mac
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Re: Advice on 'Stream' Boundary & Ownership

Postby WarbirdD » Fri Jan 06, 2017 3:18 pm

Thanks Mac, it does seem to be fairly clear. It's just that as this provision appears to never have been acted on, I wondered if it would still hold any ground. With the land on the opposite side of the stream being originally owned by the same person as our land and also with the previous owner of our property being related to said owner of the land, I presume the provision was made to allow some sort of access between them or similar.

But if it still clearly shows on the deeds then I guess we can act on it. Incidentally, as the stream originates some 3.5 km away out of the town and we are essentially the last stretch of it before it joins a river, is it unusual to have complete ownership of a 'section' of stream?

Looking at the pinned posts I guess the ownership of the stream bed constitutes a 'boundary feature' as the red boundary line on the plan (which I can hopefully link to after another post) doesn't encompass the stretch of stream itself?
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Re: Advice on 'Stream' Boundary & Ownership

Postby jonahinoz » Sat Jan 07, 2017 8:08 am

Hi,

From ignorance ... When your land was separated from the land on the other side of the stream, your land would have been added to the Land Registry (assuming it wasn't already). My understanding is that when a piece of land is broken up, both bits get their own Land Register. Does that mean that the land on the other side of the stream is registered? If so, it would be worth your while obtaining a copy of that register, see if it has anything to say about the stream.

Depending on the width of the stream, the LR map may shown the boundary alongside the stream, or the red line may be on the stream. If there can be any doubt about the exact location, it may be worth sending LR a reminder that your boundary is on the other side of the stream, ask for confirmation that they have received it.

To my mind (still ignorant) the Developer can only claim what his Register says he has bought, and the present Land Owner cannot sell to the Developer what he has already sold to you. The Land Owner should have avoided doubts by erecting his own fence (maybe at your expense). Get your stake in first. Would electric fence spikes and binder twine do for starters? It would be quick, and not too expensive. Take photos. Have a witness.

Question! Would this stream have any benefit to the developer ... such as somewhere to rinse his coffee cups? :roll: And would access to the stream, requiring him to cross your strip have any financial value? A developer will not want a dispute.

OT... circa the mid-1980s, their was an article in FIELD magazine, possibly by Lord Denning, about a ROW dispute between a land owner and a canoe club who were claiming a ROW over a river. The Appeal Court ruled that ROW rules only applied to land.

John W
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Re: Advice on 'Stream' Boundary & Ownership

Postby MacadamB53 » Sat Jan 07, 2017 8:46 am

Hi John W,

My understanding is that when a piece of land is broken up, both bits get their own Land Register.

only the part being transferred is registered - the retained land remains unregistered.

Kind regards, Mac
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Re: Advice on 'Stream' Boundary & Ownership

Postby jonahinoz » Sat Jan 07, 2017 10:37 am

Hi Mac,

Thanks for clarification.

Does that mean that the original owner could still have deeds showing he still owns a piece of land that somebody else has Land Registry title too? I can think of a case like that in the Swansea Valley. Quarry owner applied for PP .... Councillor knocked on his door, produced deeds to show it HIS land. Silly ... should have waited till PP was granted.

The vendor has to prove title before LR accept that he has the right to sell, so wouldn't that be the sensible time to register the bit that he has retained?

I still believe that breaking up registered land requires new registers for both parts. ??? Which doubles the LR fees.

John
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Re: Advice on 'Stream' Boundary & Ownership

Postby Collaborate » Sat Jan 07, 2017 12:09 pm

jonahinoz wrote:Hi Mac,

Thanks for clarification.

Does that mean that the original owner could still have deeds showing he still owns a piece of land that somebody else has Land Registry title too? I can think of a case like that in the Swansea Valley. Quarry owner applied for PP .... Councillor knocked on his door, produced deeds to show it HIS land. Silly ... should have waited till PP was granted.

The vendor has to prove title before LR accept that he has the right to sell, so wouldn't that be the sensible time to register the bit that he has retained?

I still believe that breaking up registered land requires new registers for both parts. ??? Which doubles the LR fees.

John


For unregistered property there will be a bundle of deeds, which should include the sale of part. Theoretically the sale document may have become detached from the bundle but that would be very unusual, and sloppy.
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Re: Advice on 'Stream' Boundary & Ownership

Postby WarbirdD » Sat Jan 07, 2017 3:21 pm

Thank-you for all the replies. I think I need to try and clarify a few things as regards the relationship between our land and the other land on the other side of the stream. Our property belonged to a fairly well known local family pretty much since it was built so through talking to neighbours and friends we've been able to work out the history fairly well but I can see there is a little bit of confusion re: the owner of the 'other land'.

So as far as I understand it:

Prior to 1969, person A owned our house, our land and the additional land across the stream.

In 1969, Person A sold our house and land (inc. stream provision in deeds) to Person B who married Niece of Person A. Person A retained land on other side of stream.

At some point later, Person A sold the land on other side of stream to a non-related party who apparently remains the present owner of said land but has apparently made some agreement to sell his land at a future date to said developer.

The problem is that the land does not come up on a Land Registry search so I only have the word of locals to say who currently owns it. Hopefully the next post will allow me to share the plan.
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Re: Advice on 'Stream' Boundary & Ownership

Postby WarbirdD » Sat Jan 07, 2017 3:26 pm

Image

Hopefully the above makes it clearer, the lower right portion of the red border is where I've interpreted the portion of stream mention in deeds is. 75 feet from that point takes you to the start of the rear access track.
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Re: Advice on 'Stream' Boundary & Ownership

Postby jonahinoz » Sun Jan 08, 2017 8:45 am

In 1969, Person A sold our house and land (inc. stream provision in deeds) to Person B. Person A retained land on other side of stream.
At some point later, Person A sold the land on other side of stream to a non-related party who apparently remains the present owner of said land.


Hi Warbird and Mac,

My understanding that since the introduction of the Land Registry, all land must be registered the first time ownership changes thereafter. I think 1969 was too early to require registration. Something in my mind says Registration started in 1971, but not all counties started registration immediately. No doubt somebody here can clarify that?

Is there a penalty for not registering? Dunno! But I believe there will be a local Valuation Office, who keep records of what prices land is sold for ... so they know what Capital Gains Tax to ask for. The Valuation Officer may be interested in money changing hands without anybody telling him.

Swansea Valuation Office were able to tell me that they had no record of my back-lane, in the Valleys, ever being sold. Apparently, the agent working for the Big House just erased the relevant stretch of lane off the Estate map, as and when the occupiers exercised their Right to Buy. By the time I became involved, the (friendly) agents said they were unable to prove they owned the lane ... and were not interested in it anyway.

Warbird ... You have the Land Register. It is possible that any historic "deeds" are held by your solicitor, or your building society or bank, if you have a mortgage. It should be possible to view these deeds (possibly having to pay a fee ... though I never have). Historic deeds may show who bought the land that your predecessor sold "at some point after 1969".

Er ... there is nothing to stop you applying for PP on this land ... apart from the cost. That might provoke the paper owner into crawling out of the woodwork. Another ploy is to erect a shed on the land, wait for somebody to protest.

John W
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Re: Advice on 'Stream' Boundary & Ownership

Postby cabbagewhite » Tue Jan 10, 2017 12:35 pm

There is already a fence on the west side of the stream at the Culpit road end. I would continue that fence to the north western tip of your land.
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Re: Advice on 'Stream' Boundary & Ownership

Postby WarbirdD » Tue Jan 10, 2017 4:50 pm

I've spent a fair bit of time looking at old maps today and finally figured out the '255a' OS reference as per the Provision in the deeds:

"AND ALSO THE bed of the said stream as at present flowing for a
distance of Seventy five feet only from the Eastern boundary of
Ordnance Survey Number 255a TOGETHER WITH the right to erect and
maintain a good and sufficient fence on the South Western bank

See slightly edited version of early 1900s OS map below:

Image

Interestingly, at that time it appears that what is now our 'rear track' belonged to the land across the stream which in turn appears to have been a run-off pond for a mill further down. I've bordered our land in red, with what I believe to be the correct place to place fence as per interpretation of Provision in deeds in orange.

Er ... there is nothing to stop you applying for PP on this land ... apart from the cost. That might provoke the paper owner into crawling out of the woodwork. Another ploy is to erect a shed on the land, wait for somebody to protest.


That would be tempting if there weren't already a few dilapidated sheds scattered about the land...
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Re: Advice on 'Stream' Boundary & Ownership

Postby pilman » Wed Jan 11, 2017 4:28 pm

Not sure why anyone would be as worried as you seem to be.

The first thing that needs to be clarified is that Land Registry title plans will only ever show a general boundary position using the red line drawn on each title plan.

The fact that the red line was drawn on your title plan by excluding the stream is quite normal under those conditions. Roads and streams are both dealt with in this way because of the "ad medium filum" legal presumption that an owner with land adjacent to a river or road will own up to the mid point.
When the seller in 1968 did own both sides of the stream that was why he could convey all of the stream bed that was coextensive with the rear boundary of the plot of land being conveyed.
That was clearly set out by the wording used in the conveyance. The parcel of land would have been described, then the stream bed was described and then the easement was conveyed that allowed a fence to be erected on land being retained by the seller.

You do have a legal deed dated 1969 which included in the parcel section a description of the land being conveyed, with an addition area of water covered land also being conveyed."
"AND ALSO THE bed of the said stream as at present flowing for a distance of Seventy five feet only from the Eastern boundary of Ordnance Survey Number 255a


That wording quite clearly identifies the fact that the bed of the stream was included when the common owner sold off part of the land he owned at that time.

When that owner came to sell off the land on the other side of the stream, there would have been a parcel description included in that conveyance as well.

When this land comes to be first registered the root of title will need to be that conveyance together with the newly executed deed that transfers the land to the developer.

It is most probable that Land Registry will use the current OS plan of the area and show the red line boundary against the south western edge of the stream, leaving the stream itself excluded from both title plans that will exist after that land is registered. On the Index map held by Land Registry the stream will remain outside of both titles and be uncoloured.

You know that you have the right to erect a fence against the south western edge of the stream for a distance of 75 feet from the south eastern boundary of your land because the earlier OS plan did show the extent of parcel 255a, as well as you knowing that your rear boundary is 75 feet in distance.

As a pragmatist, I would want to know why you think it sensible to erect such a fence?

Is the fencing contractor to undertake this task from a boat, or by wading across the stream, if it is shallow enough to allow this type of access.

Alternatively did you intend to ask the fencing contractor to trespass on the land you do not own in order to place a fence line for a distance of 75 feet, although the stream itself extends for a far greater distance than that.
It is probable that the granted right comes with the ancillary right to enter onto the retained land in order to erect such a fence. That will need some contact with the present land-owner if access over that land is to be exercised with the materials being transported to the site of your stream bed from the nearest road access point.

What will erecting a fence now achieve?

Will you also want to define the side boundary of the stream bed you own by erecting a physical barrier across the width of the stream to line up with the side boundary of your garden land.

You appear to be worrying that a developer will want to take control of the stream bed you own, but that is so unlikely.

It is much more likely that when this land is developed a fence will be erected against the whole length of the stream so that the house plots that will back onto the stream will not have access to that stream because it will cause a potential hazard for any children occupying a newly built property.

The sensible thing to do, in my opinion, would be to wait and see who the new owner is, approach this developer with your deed that confirms ownership of part of the stream bed. That would allow him to decide whether that affects any of his plans for developing the land he had just purchased.

To spend a serious amount of money by employing a fencing contractor to erect a fence with all the problems that will give you seems seems completely unnecessary

I think you will find that ownership of the stream bed is of very little interest to any developer whose sole aim will be to maximise the profit to be made from erecting houses on the land following the grant of a planning permission.

Any hint of a potential problem regarding land boundaries will be dealt with swiftly with that view of maximising profits firmly in mind.

After reading the reasons why you have made this posting, I think you are overly concerned about a matter that may never become a problem, because you have the paper deeds that fully support ownership of the stream bed, even though the general boundary rule is observed by Land Registry.

What should not be forgotten is that you always will have the right to erect a fence, so until it becomes evident that there is a need to erect such a fence, doing nothing other than planning to meet the new owner of the land once it is sold would be the best thing to do.
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Re: Advice on 'Stream' Boundary & Ownership

Postby WarbirdD » Wed Jan 11, 2017 4:58 pm

Many thanks pilman, I'm not so much worried as probably just a little naïve about these things as it is the first house I have ever owned and the local knowledge and history regarding the house and land attached is a new experience to me.

After reading the reasons why you have made this posting, I think you are overly concerned about a matter that may never become a problem, because you have the paper deeds that fully support ownership of the stream bed, even though the general boundary rule is observed by Land Registry.

What should not be forgotten is that you always will have the right to erect a fence, so until it becomes evident that there is a need to erect such a fence, doing nothing other than planning to meet the new owner of the land once it is sold would be the best thing to do.


The above is all I needed to hear so thank-you. The supposed 'developer'/ new owner in question is a local businessman/waste contractor who supposedly can be overbearing and a little unscrupulous BUT this is only what friends and locals have told me and I do not know the businessman concerned so I have no personal experience to base that on. I just wish to be fully aware of my rights if and when the time comes.

Many thanks to all that have commented and offered advice, it is greatly appreciated.
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