1. Introduction
We are all familiar with boundaries because we see them every day. Our own properties will probably have some kind of boundary structure that separates it from neighbouring properties. Some structures appear natural, living things like hedges and tree lines. Others are obviously man-made such as walls, timber fences and ditches.
2. Definition of a boundary
The word ‘boundary’ has no special meaning in law. There are 2 senses in which it can be used: legal boundary and physical boundary.
2.1 Legal boundary
An imaginary or invisible line dividing one person’s property from that of another. It is an exact line having no thickness or width and is rarely identified with any precision either on the ground or in conveyances or transfers and is not shown on Ordnance Survey mapping. Ultimately the exact position of a boundary, if disputed, can be determined only by the court or the Land Registration division of the Property Chamber, First-tier Tribunal.
2.2 Physical boundary
A physical feature that we can see such as a fence, wall or a hedge, which may, coincidentally, also follow the line of a legal boundary. The legal boundary may run within the physical boundary structure but it might just as easily run along one particular side of the structure, or include all or any part of an adjoining roadway or stream. Living boundary structures such as hedges can be prone to a certain degree of movement: for example, if a hedge is left untended it might take root where it touches the ground and become very wide, making its original line hard to discern. So even if it is clear that the legal boundary ran along the hedge, identifying this boundary on the ground may become very difficult.
3. Difficulties in showing the precise position of physical boundaries on plans
Ordnance Survey translates the landscape into mapping we use today and have used for many decades. A line shown on the Ordnance Survey map indicates that a feature existed in that position, subject to certain limitations at the time of the survey. See practice guide 40: supplement 1 - the basis of HM Land Registry plans for more information.
Whilst the precise position of the physical features, which may give an indication of the occupied extent or the general position of a legal boundary, may be determined by inspection on the ground, the extent to which their precise position may be recorded on a plan will largely depend on the accuracy of the survey on which such a plan is based. Even the most detailed surveys with the most modern and highly accurate survey instruments take place within certain defined tolerances and large-scale Ordnance Survey mapping is no exception.
4. Identifying the position of the legal boundary
Case law establishes that the position of the legal boundary will depend on the terms of the relevant pre-registration conveyance or the transfer as a whole, including, of course, the plan. If the plan is insufficiently clear for the reasonable layperson to determine the position of the boundary, the court can refer to extrinsic evidence and in particular to the physical features on the ground at the time.
This is the case whether or not the plan is ‘for the purposes of identification only’. The question for the court is: what would the reasonable layperson think they were buying? Evidence of the parties’ subjective intentions, beliefs and assumptions is irrelevant. See, for example, Cameron v Boggiano [2012] EWCA Civ 157.
5. General boundaries
Given the difficulties referred to above in establishing the position of the legal boundary, the great majority of registered titles show only the ’general boundaries’, under section 60(1) of the Land Registration Act 2002.
We will complete a first registration without making detailed enquiries as to the precise location of the legal boundaries. Practice guide 40: supplement 5 - title plan for a definition will reflect what we conclude to be a reasonable interpretation of the land in the pre-registration deeds in relation to the detail on Ordnance Survey mapping, taking into account any areas of land that the pre-registration deeds show to have been sold off and any existing adjoining registrations.
Unlike the tolerances applied to Ordnance Survey mapping, there is no standard tolerance, measurement or ratio that can be attributed to the relationship between the position of the general boundary mapped on an HM Land Registry title plan and the position of the legal boundary. See practice guide 40: supplement 1 - the basis of HM Land Registry plans for more information.
Case law makes clear that there is no limit to the quantity of land that can fall within the scope of the general boundaries rule: see, for example, Drake v Fripp [2011] EWCA Civ 1279.
6. Fixed boundaries
This procedure has been superseded by the determined boundaries provisions referred to in practice guide 40: supplement 4 - boundary agreements and determined boundaries. It allowed the precise identification and registration of the position of part or the whole of the title boundaries. Fixing a boundary was a very expensive process and only a handful of fixed boundary titles were successfully registered.
7. Boundary agreements and determined boundaries
However effective registration with general boundaries is for the majority of titles, there are occasions where an owner might require something more precise. There are 2 ways to achieve this:
The first option always requires the agreement of adjoining owners and the second almost invariably will also require this. For further information see practice guide 40: supplement 4 - boundary agreements and determined boundaries.
8. Ownership and/or maintenance of boundaries
There are various notions that the way a wall or fence is constructed indicates ownership, for example that the posts and arris rails of a fence are on the owner’s side. There is, however, no legal foundation for such beliefs. Deeds may contain covenants to maintain a wall or fence but on their own, such covenants do not confer ownership. Where the ownership or responsibility for maintenance of a boundary cannot be determined, that boundary feature is generally best regarded as a party boundary. Any alterations or replacement of the boundary should only be done with the agreement of the adjoining owners.
The register will only show information concerning the ownership and/or maintenance of boundary features when this information is specifically referred to in the deeds lodged for registration. The most common marking on deed plans that relates to boundaries are ‘T’ marks. An entry referring to a ‘T’ mark is normally a statement concerning the ownership of a boundary structure or the liability to maintain and repair it.
If the ‘T’ marks are expressly referred to in the deed lodged for registration and the text of the provision(s) is set out verbatim in the register, then we will:
reproduce them on the title plan and refer to them in the register, or
describe the boundaries affected by ‘T’ marks verbally in the register, for example “The ‘T’ mark referred to [in paragraph/clause…] affects the [north western] boundary of the land in this title”, or
make a note to the said register entry that a copy of the plan to the deed is filed
‘T’ marks on deed plans which are not referred to in the text of a deed have no special force or meaning in law and unless an applicant specifically requests that the ‘T’ marks be shown on the title plan, we will normally ignore them.
9. Party Wall etc Act 1996
The purpose of this Act is to regulate the manner in which works to party walls and other works adjacent to boundaries are carried out. In general terms the Act does not affect ownership of land although it does provide that the owner who has carried out works remains the owner of those works until the neighbour pays a share of the costs. We cannot offer advice about the Act, this should be sought from an appropriate professional adviser, for example a solicitor, licensed conveyancer or surveyor.
10. Accretion and diluvion: non-tidal rivers and streams
The doctrine of accretion and diluvion recognises the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. We would expect these changes to be gradual and imperceptible. As the watercourse changes naturally and progressively with time, so the land boundary follows it. There may be some gain, there may be some loss. The law accepts this and considers it to be fair.
If a violent flood wrenches the watercourse suddenly but permanently into a different direction so that a substantial and recognisable change in the boundary has taken place, then the doctrine of accretion does not apply. Neither does it apply if the changes are man-made. Land is conveyed subject to and with the benefit of any additions or subtractions (within the limits of the doctrine) that may have taken place over the years.
The boundary between registered titles abutting a natural non-tidal river or stream changes if the course of the stream changes naturally over a period of time. The fact that a title plan may show the boundary in a particular position does not affect the loss and gain of land resulting from the operation of accretion and diluvion (section 61(1), Land Registration Act 2002).
An agreement between adjoining owners about the operation of accretion and diluvion must be registered to have any effect (section 61(2) of the Land Registration Act 2002). The application must be accompanied by the consent of the proprietors of both titles and any registered charges (unless they are party to the agreement) (rule 123 of the Land Registration Rules 2003).
11. Legal presumptions
Documents of title rarely contain sufficient descriptions to enable one to establish the precise position of a boundary. In such cases legal presumptions relating to certain types of boundary feature may be helpful.
As registration with general boundaries leaves the exact line of the boundary undetermined, the effect of a legal presumption may be carried forward into a registered title. Other available evidence, such as a declaration as to the position or ownership of a boundary, may rebut such a presumption.
Where the boundary is a general boundary, we still try to show the land and its boundaries as accurately as possible. So if a person has grounds for believing that a legal presumption operates and that the red edging on a title plan ought to include additional land as a result, they may apply for the register to be altered to show the red edging on the plan in a more accurate position. The boundary will however remain a general boundary. The application should be made by way of form AP1 (even if the land to be included within the red edging of the title plan does not fall within the red edging of the title plan to another registered title, and so may appear to be unregistered).
Legal presumptions cannot apply when the boundary is determined under section 60 of the Land Registration Act 2002. Because this establishes the exact line of the legal boundary, there is no leeway to argue that the boundary is in any other position or that the title includes any other land.
11.1 Roadways
There are 2 presumptions relating to the ownership of the soil of a roadway (where a road or path is a highway maintainable at the public expense, the surface vests in the highway authority: section 263 of the Highways Act 1980).
The first is that the owner of land abutting on a road is also the owner of the adjoining section of the road up to the middle line (ad medium filum).
The second is that where a conveyance or transfer of land abutting on a road is made by someone owning land on one side of it only, then if they can be proved or are presumed, to own also the road up to the middle line, this half of the roadway is included in the conveyance or transfer.
Both of these presumptions may readily be rebutted.
11.2 Hedge and ditch
Where 2 properties are divided by a hedge or bank and an artificial ditch, the boundary is presumed to run along the edge of the ditch furthest from the hedge or bank. This is based on the principle that an owner, standing on his boundary looking inward, dug his drainage ditch within his boundary, threw up the soil on his home side, and then planted a hedge on the mound. This presumption only applies to man-made ditches and does not apply if it can be shown that the ditch is natural or if it can be established that the boundary feature was made while the lands on both sides were in common ownership.
11.3 Non-tidal rivers and streams
Where properties are separated by a natural non-tidal river or a stream, the presumption is that the boundary follows the centre line of the water (ad medium filum aquae) so that each owner has half of the bed.
If the course of the stream gradually changes over a period of time, the position of the boundary will change accordingly. See Accretion and diluvion: non-tidal rivers and streams. Changes as a result of human agency do not, however, lead to an alteration in the position of the boundary. Where there is a sudden, but permanent change in the course of the stream, whether or not it is due to natural causes, the boundary will remain along the centre line of the former bed.
11.4 Lakes
The bed of a lake belongs to the owner of the surrounding land if the lake is entirely within the boundaries of a single ownership. Otherwise there does not appear to be any presumption.
11.5 Foreshore and tidal rivers
In the absence of contrary evidence, the boundary of land adjoining the sea lies at the top of the foreshore (the land lying between the high and low water-marks of a mean average tide between spring and neap tides).
In the absence of evidence to the contrary foreshore is owned by the Crown. This assumption also applies to land bordering on tidal rivers and sea inlets. The boundary may move gradually, as the line of the high water mark moves naturally over the years. However, in the case of a sudden substantial accretion of land or conversely an encroachment by the sea, the ownership of the area of land affected will not change.
As in the case of non-tidal rivers and streams (see Accretion and diluvion: non-tidal rivers and streams), a change as a result of human intervention will not alter the position of the boundary.
11.6 Projections (such as eaves or foundations)
Plans attached to pre-registration deeds generally show the boundaries of a property at ground level only but the foundations and eaves may extend beyond the defined boundary line. In such a case, the property includes these projections (but not the air space between them), unless there is evidence to the contrary.
11.7 Airspace and subsoil
If the terms of pre-registration deeds do not do so, then in the absence of agreement, only a court can determine the precise horizontal boundary between a flat or maisonette on one level and the flat or maisonette above or below it. There are presumptions the court may consider and it will also look at the provisions in the relevant deed, such as repairing covenants in a lease.
Where the division is vertical, there is a presumption that the land includes both the airspace above (to such height as is necessary for the ordinary use and enjoyment of the land) and everything under the soil, subject to exclusions such as coal.
12. Things to remember
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