A Very Informative Post about Boundaries and Plans

A Very Informative Post about Boundaries and Plans

Postby Conveyancer » Sun Jan 08, 2006 9:24 pm

What is a boundary?

Many of us talk about “boundaries” without always clearly thinking what we are talking about. Even conveyancers will ask questions such as : “Who owns the boundary on the south of the property?”

There is a difference between a "boundary" and a "boundary feature" (or as the Land Registry put it on their site a “legal boundary” and a “physical boundary”). Whilst it is possible to talk about the ownership of or responsibility for boundary features, it is not possible to talk about the ownership of boundaries.

A “boundary” is the imaginary line that divides one property from another. The boundary of one property is also the boundary of another. The boundary does not belong to either property.

A “boundary feature” is a fence, wall, hedge, watercourse or other feature, man made or natural, that follows a boundary.

It is rarely possible to establish the position of a boundary to within a few centimetres.

Plans

The limitations of plans


When talking about accuracy of plans two different things can be meant. The first is quite simply that a mistake was made when the plan was drawn up. The second is that different scale plans show different detail – obviously the larger the scale the more accurately the detail can be shown – but only a scale of 1:1 can be 100% accurate! A line on a plan also has thickness and can represent different widths according to the scale, so that no line, however thin, can ever truly represent a boundary.

Plans have to be drawn on something and according to the material, the age of the document and the conditions it has been kept in, a plan may shrink or expand. One of the worst things that happened in the world of conveyancing plans was the photocopier. First, photocopiers distort plans. Secondly, a plan with already thick boundary lines on it may be copied and edged in red and then recopied and edged again, so that some plans just show black blobs with a red dot in the middle. In more leisurely days plans were carefully traced – indeed some firms used to send them out to specialists.

The conventions of mapping also need to be taken into account. On the Ordnance Survey (OS) plan sometimes features are moved apart so that both can be shown and sometimes gaps are not shown. Both a substantial wall and a wire fence may be shown by the same thickness of line.

The OS Plan does not show legal boundaries, only physical features. The OS Plan is only useful when land is sold by reference to OS parcel numbers (not likely to be the case for most residential properties) and if you wish to show whether a particular feature was in place at a certain date.

It is also necessary to know whether a plan was drawn up from measurements taken in the air or on the ground. If you have a large area on a slope and want to know how many block paviours you need to cover it, you get out a tape measure and measure the area on the ground. If you were to scale off the area from the OS Plan and then do your calculation, you would end up with less paviours than you needed; this is because the OS Plan shows the land from above, just as if you had taken an aerial photograph.

Traditional conveyancing documents

A conveyance contained either a (sometimes lengthy) description of a property and/or a plan. More often than not the plan was stated to be “for identification only.” This meant that the plan was not intended to define the precise position of the boundaries. Even when it was provided that the property was “more particularly delineated” on a plan, this simply meant that in the case of conflict between the plan and the description, the plan prevailed. It has therefore never been the regular practice in conveyancing, whether by description or plan, to attempt to define boundaries accurately. The main reasons for this were practicality and expense. The quality of plans varied widely from the professionally drawn to “back of an envelope” standard.

Land Registry plans

Sometimes people complain that Land Registry plans are useless, especially when they are involved in a boundary dispute. This is to misunderstand the purpose of a Land Registry plan. Just as most traditional conveyance plans were for the purpose of identification only, so the Land Registry plan has the same purpose, although on the whole Land Registry plans are more reliable. When the system of land registration was introduced in the 19th century it was necessary to establish the boundaries with great accuracy. The system was soon found to be impractical and expensive and only a few properties were registered. This led to a relaxation in the rules and eventually to what is known as the general boundaries rule.

The General Boundaries Rule

The general boundaries rule is often misunderstood. What is says is that the red line on the title plan is not to be taken as indicating whether the boundary is one side or the other of a boundary feature or runs through it. It is not quite the same as saying that it marks the approximate position of the boundary. It does not mean that you can choose where the boundary is within certain limits. It certainly does not mean that a developer can grab two or three feet of your land. Sometimes ownership of boundary features may be indicated in the register. There is a procedure for determining the exact line of a boundary, but the requirements are stringent.

“T” marks

“T” marks can be a source of confusion. A “T” mark on a deed plan means nothing by itself. It needs to be referred to in the text of the document to establish whether it indicates ownership and/or responsibility for maintenance. A similar observation may be made about double “T” or “H” marks showing shared ownership of a boundary feature.

Ownership and Obligations

There is a difference between ownership of a boundary feature and the obligation to repair a boundary feature. Just because you own a boundary feature does not mean that you are under an obligation to repair it. It is possible to be made responsible for a boundary feature you do not own. As to the enforcement of fencing covenants please see here: http://www.gardenlaw.co.uk/phpBB2/viewtopic.php?t=1727

Legal presumptions

Is it possible to establish ownership of a boundary feature in the absence of anything in the deeds? There are certain presumptions:

The hedge and ditch rule assumes that where a boundary feature comprises a hedge and a ditch, the boundary runs along the lip of the ditch opposite the hedge.

The double hedge and ditch rule applies where there is a hedge on both sides of the ditch. The presumption is that the boundary is the mid line of the ditch.

There is also a presumption that you own any boundary feature bounding the highway.

Sometimes the physical layout may suggest that a boundary feature goes with one or other property.

If you have a very new property next to a very old one with a very old wall separating them, it is reasonable to assume that the old wall goes with the old property.

None of the above presumptions (whether rules of law or not) apply if the deeds say otherwise.

There is no legal presumption about the ownership of fences according to the position of the fence posts. The fact that traditionally you showed the good side of a fence you were responsible for to your neighbour is no more than tradition.

If there is no boundary feature on a boundary, for example on an estate that was laid out open plan, each property owner has an equal right to establish a boundary feature on the boundary, assuming of course there are no planning or private restrictions. You may erect a fence on the boundary so long as you keep everything on your side. If planting a hedge, remember that they grow sideways as well as up! In certain situations the Party Wall etc Act 1996 may apply, so check before you start work.

Can boundaries move?

Yes, they can. The classic case is the watercourse. As it slowly changes its course so the boundary moves with it. This does not apply if the watercourse changes quickly, say following heavy rain or due to human intervention. Other boundaries will move if the boundary features move and then stay in position for sufficiently long. Fences may be taken down and a new one put back in a different position. Hedges may be grubbed up and replanted in a different position. There is now a procedure by which landowners can apply to the Land Registry to alter the title plan in appropriate cases.

Conclusion

Before carrying out any work on a boundary feature discuss your plans with your neighbour, even if consent is not required – this will help to prevent disputes. Getting agreement in writing is a good plan. Altering your boundary feature while your neighbour is away never goes down well.

Remember that not all boundary problems can be solved by applying the law.

The above is only a summary of what would fill a book. If you have a particular query or problem, post away!
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Postby Beech » Sun Jan 08, 2006 9:43 pm

Image Excellent and easy to read, I'm sure it'll be very useful.
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Postby readyfreddy » Mon Jan 09, 2006 9:57 am

Good stuff!

Can this post be pinned to the top of the board in some way? It would make directing people to the appropriate place so much easier in future.
"The first thing we do, let's kill all the lawyers". - Henry VI (Act IV, Scene II).
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Postby Angelisle » Mon Jan 09, 2006 10:18 am

Can this post be pinned to the top of the board in some way? It would make directing people to the appropriate place so much easier in future.

readyfreddy,
Administration have already been informed requesting same :wink:
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Postby maloom » Mon Jan 09, 2006 11:22 am

Conveyancer

Your opinion on the following situation would be of interest.

Properties A and B were formerly within one historic title, now divided.

The title plan (rather poorly drawn) with the deeds to property A shows a straight line for the boundary feature - an established hedge pre-dating the sub-division - separating A from B. The same plan was used for the deeds to property B. The OS plan upon which the Land Registry plan is based nonetheless reflects the reality - that for part of its length the hedge is set back ('indented') some 2-3 ft towards property A. The Land Registry has nonetheless taken the straight line from the title plan, and applied this to the OS map, paying no heed to the 'indent', thereby suggesting (to the owner of property A) that part of the land 'outside' the hedge (from property A's perspective) is within its title.

The owner of A therefore believes the straight line as the boundary, whilst the owner B argues that the hedge is the boundary. On property B's side of the hedge is a roadway over which A has a right of way. The owner of A has claimed as its own the area 'outside' the hedge, where the hedge is 'indented' towards its own property, and makes use of it for storage, which the owner of B, given that it contends that the hedge is the boundary, contends is a trespass of chattels.

Any views on this?

Administrator:
Please re-post in another thread as this thread is now locked for information purposes. Thankyou.
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