What you see is not (always) what you get: uncertainties in determining boundaries

03/08/2023

Part 1: Plans

When an issue emerges over a boundary, the first recourse of the parties to the dispute is very likely to be to plans. Reference may be made to the Land Registry title plan, and/or to one or more transfer plans accompanying previous conveyances.

Well before instructing counsel in such a dispute, it will often already have been necessary for a legal adviser to disappoint a client with the news that plans are less determinative of the dispute than may at first appear. Sometimes, they may be all but useless, although often the position will lie somewhere in between the two extremes.

This may come as a surprise to a party who thinks, understandably, that the whole purpose of a plan showing a boundary is to confirm where it is.

This short article considers some legal and practical difficulties with the use of plans in boundary disputes. Those who have litigated a number of such cases might be able to think of some other examples. It may well be followed, in due course, by a ‘part 2’, considering similar pitfalls with placing reliance on the position ‘on the ground’, and perhaps even a ‘part 3’ addressing the way in which boundary agreements and adverse possession can pull the rug out from under the feet of a party even further.

Title plans and general boundaries

The plan to which a proprietor in dispute over a boundary wishes to refer as ‘definitive’ will, in many cases, be the Land Registry title plan. However, such a plan is subject to a specific, express limit on its utility in a boundary dispute, in the form of section 60 of the Land Registration Act 2002.

In two admirably concise sub-sections, section 60 puts paid to any notion that a Land Registry title plan could simply be projected onto the ground and the job declared done:

“(1)     The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section.

(2)        A general boundary does not determine the exact line of the boundary.”

That speaks for itself.

Land Registry title plans are subject to two practical difficulties which serve to justify the general boundaries rule.

First (and as may well be made clear in an expert surveyor’s report on a boundary), the degree of precision permitted by the underlying mapping will often simply be inadequate to allow the depiction of a boundary with the accuracy needed to resolve (or, ideally, avoid) a potential dispute.

Second, it would not be a safe automatic assumption that the title plans of two adjacent properties will match up as regards the common boundary, or indeed that they will be based on the same underlying mapping. Absent the general boundaries rule, that could give rise to a failure of the land registration system. With the rule in place, it does not, but it does provide a clear example of why the rule is not an idle one.

“I’ve got other plans”

Other plans (typically transfer plans) will not suffer from the strict statutory restriction imposed by section 60. However, they are still very far from being free from difficulty. Here are four examples (and the list, as I say, is most likely not exhaustive).

First, many transfer plans and the like are (like many title plans) manifestly inadequate for answering fine questions of boundaries. A simple glance will often reveal when this is the case, because the scale may simply be too small and the features too poorly drawn. Sometimes, the best copy of the plan available may be too poorly reproduced. If a recent, large scale survey plan has been used, this problem may not arise, but if the plan is a bad photocopy of an aging, small-scale depiction, it very well may.

Second (and again as with title plans), the problem of disagreeing plans may very well once again be encountered. If that is the case, then the decisive evidence may well come from elsewhere (or, indeed, may be frustratingly absent).

Third, if a plan has been prepared in connection with the subsequent transfer of one of the two relevant parcels of land, it may ultimately be held to show little more than what one of the two owners asserted they owned.

Fourth, even if a plan is clear and relevant, it may simply be subject to challenge as to whether or not it actually depicts the correct boundaries. Not every plan will be decisive just because it is legible, and this issue could potentially be thorny.

Concluding thoughts

None of this is to say that plans might not assist in resolving difficulties over boundaries. Indeed, in the right circumstances, they could be highly persuasive or determinative. One obvious example might be where the position of a historic boundary feature is in dispute and a contemporaneous plan is found which contains useable measurements. Another would be where only one of the competing contentions as to a particular boundary is realistically consistent with what is depicted even when one accounts for the limits of accuracy of the relevant plans.

However, it is often going to be optimistic to believe that a plan will simply resolve a boundary dispute. Even if the outcome ultimately aligns with the plan, it may take considerable argument to get to that point. When that may be the case, it serves the interests of the client for that to be made clear from an early stage. Boundary disputes can be costly in both financial terms and to what may remain of good relations between neighbours, and appreciating where uncertainties lie may facilitate either compromise or at least an informed and realistic perspective on any litigation which proceeds.

The material contained in this article is provided for general information purposes only. It does not constitute legal or other professional advice. No responsibility is assumed by any member of chambers for its accuracy or currency, and reliance should not be placed upon it. Specific, personal legal advice should be obtained in relation to any case or matter. Any views expressed are those of the editor or named author.