Initially I was surprised by the number of clients who were not entirely clear what they owned – until that is, I saw their estates and realised that keeping track of 800 hectares plus might be a little more onerous than keeping track of my pocket handkerchief garden.
Who owns what is necessarily the main point of property law: English property law in particular protects the Englishman’s home as though it were indeed his castle.
The point being, I suspect, that we live on an island, the land available is limited and it must therefore be closely protected. Little wonder then that boundary disputes between neighbours are often among the most vitriolic. Avoiding them, by being clear about what you are buying and what you own, is the best advice I can give.
To start with the most straightforward: if your land is registered at the Land Registry (more likely than not, if it was sold after 1990), the title plan shows the general boundaries. ‘General’ refers to the General Boundary Rule, which is really an expedient to bridge the gap between legal boundaries, which are exact and have no thickness, and real life, which tends to be less precise.
The Land Registry calculate that the lines on their plans equate to approximately 1-3 metres on the ground, depending on scale, so absolute precision is neither possible, nor is it generally required. If you are arguing about 3 metres of land, your legal fees are more than likely to exceed the value of land and careful thought should be given as to whether there are better ways to spend your money. If you think the registered plan is wrong, an application can be made to change it, or to locate the boundary precisely, if so required – this process can also be used to formalise matters, if there has been a dispute.
If your land is unregistered, or you wish to challenge the registration, the place to look is in the title deeds. Provided that the wording and any plans attached are sufficiently clear, the deeds will determine the boundary. One useful point to note is that where a conveyance states that the plan ‘is for the purposes of identification only’, the words of the deed takes precedence over the plan; where the property is described as ‘more particularly described in the plan’, the plan takes precedence.
If both phrases appear, ignore both and sack the solicitor. Often it is the case that title deeds are either so outdated, or vague, that the land is unrecognisable and boundaries irreconcilable. In that case, the acts of the parties and other extrinsic evidence such as sales particulars may be admissible to help determine what was intended. Generally, wording will always be construed in the buyer’s favour and against the seller, so sellers would be well advised to avoid ambiguity.
If the deeds are silent or simply too vague to assist, there are a number of presumptions designed to take the hard work out of coming to a sensible conclusion. In my previous article I dealt with river boundaries. The same ad medium filum presumption applies to highways; if you have land which borders a highway, the presumption is that you own the subsoil of the highway, up to the mid-point of it – the highway surface is typically owned by the Highways Authority. However, this does not apply to railways, where it is deemed that the whole of the land on which the railway is situated belongs to the railway company.
Equally, if a sale is made by reference to an Ordnance Survey plan, it is presumed that the true boundary lies in the middle of any boundary feature. Perhaps my favourite, however, is the ‘hedge and ditch’ presumption. This states that where the boundary feature is a hedge and ditch, one must assume that the landowner dug a ditch on his land and then threw the soil up from it to form a bund (also on his land). He then planted a hedge on the bund. The far side of the hedge is therefore, the boundary. Such are the products of legal imagination. As these are only presumptions, they can be defeated by contrary evidence or agreement between the parties.
The most important point is that, if you are buying land where there is any query at all over a boundary, you should get the seller to sort it out, at his expense, before you buy it and have any changes registered at the Land Registry. Not only will he have to deal with any queries raised by the Land Registry, but he will also have to pay their fees. Always remember that, no matter how nice the seller, he will not be nearly as interested in helping you resolve any problems after you have bought the property and he has your money.
Despite being one who feels the cold, Elizabeth braved a move to Northumberland and has worked there as a solicitor with the firm of Dickinson Dees LLP, in the Agriculture, Farms and Estates Team, where she started life as a trainee in 2003. As part of this specialist and nationally renowned team, she works both for a number of larger estates and trusts on an ongoing basis and also on one-off matters, covering the range of rural property law, including; sales and purchases, sporting rights,rights of way, easements and tenancies, to name a few. Outside the office, she nearly managed to get sent to the North Pole, loves the occasional hunt with the CVNNH and continues to try and break the 4-hour mark for a marathon. She lives with her husband, a terrier and a very silly basset.
She can be contacted through Dickinson Dees on 0191 279 9000
Image from Archives Wales