Good fences make good neighbours – Robert Frost.
This article is part of a series of three. The other two articles will deal with the early resolution of boundary disputes and methods of agreeing a boundary.
Establishing the Boundary
It often comes as a surprise to many people when they learn that the Land Registry plan for their property cannot be relied on as an accurate record of the boundaries of the property. The legislation governing the Land Registry provides that the boundary shown for the purposes of the register is a general boundary, and that a general boundary does not determine the exact line of the boundary (s. 60 of the Land Registration Act 2002).
The Land Registry notes which accompany the title plan will, unless the boundary has been determined, state that “the title plan shows the general position, not the exact line, of the boundaries. It may be subject to distortions in scale. Measurements scaled from this plan may not match measurements between the same points on the ground”.
The exact line of the boundary is established by the conveyance which originally divided the land from a larger parcel of land. Such documents, particularly if they were drafted many decades ago, can be difficult to construe, with boundary lines being several feet thick when scaled up. It is therefore necessary to consider the document as a whole together with the physical features on the ground at the time of the transfer insofar as they can be established.
A recommended approach is as follows:
- start by looking at the parcels clause which identifies the land to be conveyed. If the clause refers to the land to be conveyed as “more particularly described/delineated in the plan” or “shown on the plan annexed hereto”, then the plan is intended to define the boundaries. If however, the plan is described as “for the purposes of identification only”, then it will be necessary to rely on other parts of the transfer document and other evidence;
- the second stage is to review the plan itself;
- the third stage is to look at the rest of the document to see if other clauses assist with the interpretation, e.g., repairing clauses or clauses relating to the obligation to fence and/or maintain the boundary;
- finally, the conveyance should be checked against the physical position on the ground at the date of the transfer.
Drake v Fripp [2011] EWCA Civ 1279.
Case studies on boundary establishment
If a transfer is unclear about the position of the boundary then extrinsic evidence can be used to aid construction. In Pennock v Hodgson [2010] 2010 EWCA Civ 873, Mummery LJ stated:
“Looking at evidence of the actual and known physical condition of the relevant land at the time of the conveyance and having the attached plan in your hand on the spot when you do are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date.”
In Brown v Pretot [2011] EWCA Civ 1421, the transfer plan was stated to be “for identification only” although it was accepted to be accurate. The Court of Appeal determined that the boundary was not as delineated on the transfer plan, but followed the line of a fence which was in situ at the time of the conveyance. If the transfer plan had been accepted the boundary would have cut through part of a garage. The Court stated: “There is no reason for preferring a line drawn on a plan as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.”
In Cook v J D Wetherspoon plc [2006] EWCA Civ 330 the property was said to be ‘defined on the attached plan and shown edged in red’. The plan expressed a particular part of the property to have a width of 40 feet. However, the scaled width on the plan was in fact 30 feet. The Court held that where there was a conflict between: (i) dimensions in figures on a plan by which property conveyed or transferred was described, and (ii) dimensions arrived at by scaling off the plan, the conflict was to be resolved by reference to such inferences as might be drawn from topographical features which existed when the conveyance or transfer was executed. Accordingly, on that basis the scaled width was held to be the correct dimension.
Other extrinsic evidence which could be relevant to establishing the boundary include an agreement for the sale of the property, auction particulars, and answers to preliminary enquiries.
In summary, if it appears that there may be a dispute about the position of the boundary, the first and most important step is to establish the position of the boundary by reference to the original conveyance and any relevant extrinsic evidence.
To see the next two articles in the series on Boundary Disputes please take a look here:
Boundary Disputes Part Two: Using the Boundary Disputes Protocol
Boundary Disputes Part Three: Boundary Agreements and Determined Boundaries
This is not legal advice; it is intended to provide information of general interest about current legal issues.
If you wish to discuss this or any other matter related to property litigation please contact Caroline Knowles-Ley on caroline.knowles-ley@cognitivelaw.co.uk or call on 01243 943203.
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