The Undecided Boundary

As land lawyers know, but neighbours often do not, the title plan for a registered title at HM Land Registry is (unless it states to the contrary) “general” (Section 60(1)(2) Land Registration Act 2002). 

A general boundary is inexact and requires physical inspection and/or inspection of Deeds to be located more precisely.  The alternative to a general boundary is a determined boundary, and there is a highly particular set of requirements before HM Land Registry will record one.

Do precise boundaries matter?  Usually not, as most people are content to buy what they can see, and what they can see usually comprises the boundary features in any event.  There can be exceptions, when the precise location of the boundary can be critical, for example:

1. The narrow fillet of land, where width is critical for useful development; and
2. Back land, where the location of building relative to nearby housing may be important for planning purposes or avoidance of land benefitting from restrictive covenants.

The procedure is set out in an extensive collection of rules and guidance (Section 60(3) LRA 2002, Rules 118-122 of the Land Registration Rules 2003 and HMLR Practice Guide 40).  The critical points for current purposes are the degree of accuracy to be professionally certified on any plan (+/- 10mm to fixed, permanent points or similarly accurate National Grid Coordinates).  If the land is open, markers of various types (even an iron pipe filled with concrete) may be required, but not wooden stakes.

If the adjoining neighbour objects, then the matter will be referred to the First-tier Tribunal, Property Chamber, Land Registration division (the matter will be stayed if damages or injunctions are issues, and Court proceedings will be directed).  There has been protracted wrangling about what the Tribunal can and cannot decide.  It would make a long article in its own right to trace and explain the history (as yet not fully resolved) so here are the highlights:

1. The Tribunal can decide whether a plan is sufficiently, intrinsically accurate or not for the purposes of registration (Murdoch v Amesbury [2016] UKUT 3, on other matters a highly dubious authority, see Bean v. Katz [2016] UKUT 0168 and Lowe v. William Davis Limited [2018] UKUT 206 (TCC)).  This question, when it arises at all, is usually distinct from any issue of location of the legal boundary (discussed below).  If this is the only issue, and the plan is accurate, then a determined boundary is registered.  This is uncontroversial as to jurisdiction, but rare;
2. The Tribunal can decide whether the plan accurately reflects the legal boundary.  If it does, then a determined boundary is registered;
3. If the plan is accurate as to part of the boundary, but not the whole, then the Tribunal can allow the application in part and/or make procedural directions for the provision by a party of an amended plan reflecting the legal boundary in issue more extensively (see Gwyn v. Citron FTT REF 2016/0086);
4. If such a plan is directed but not provided, then that part (or all) of the application may be struck out (Lichfield v. Macgregor FTT REF 2021/0012);
5. The Tribunal may refuse an application if the plan is extensively or wholesale inaccurate, and may not pontificate on the true line of the legal boundary (Witt v Woodhead [2020] UKUT 319 (LC), but this raises complex questions of issue estoppel if a new application is made on the strength of the earlier findings);
6. If the decision is binary between rival contentions for the boundary, and the Respondent succeeds, then the Tribunal may dismiss the Applicant’s application with the Respondent to make an application in due course (Cosgrave v Hope REF/2019/0712, but again, this raises complex questions of issue estoppel);
7. Were the Tribunal to direct a new plan on the basis of extensive modifications, be aware costs may be awarded against an Applicant (see May and Jurga v Iles REF/2016/0481 at [12]).

If the boundary requires a successful claim for adverse possession to be perfected, then an application may be directed to “catch up” with the determined boundary.  Note that under the 2002 Act, the jurisdiction of the Court has been displaced by HM Land Registry and the Tribunal (Swan Housing Association v Gill [2012] EWHC 3129 (QB); [2013] 1 WLR 1253).  Some Tribunal judges may, however, be willing to deal with adverse possession at final hearing “on the hoof”: DL1 Ltd v Mark Edward Dew REF/2018/0738 “[the Tribunal] could and should deal with the Respondent’s adverse possession evidence and arguments in this reference, as part of the overall exercise of determining the precise boundary between the titles”.

One way or another, the Tribunal has been keen to resolve the boundary issues between the parties. What happens, though, when there is an almost impossibility in identifying the boundary with sufficient precision at all? 

There can be two results:  the Tribunal may allow a less accurate plan, so long as it reflects a high degree of accuracy in circumstances where full compliance may be impossible.  An example would be Evans v Kite REF/2020/0473, an historic retaining wall in the Snowdonia National Park made of rough rocks set into bank (and partially demolished during the proceedings) was registered as the boundary with a plan of less accuracy than the stipulated requirements of HM Land Registry.

In one recent case, however, the best efforts of the Tribunal to give certainty were defeated in the Upper Tribunal, Farrow v Boag [2023] UKUT 167 (LC):  the conveyance was the only evidence for a boundary formed in 1913 and it was deemed too inaccurate to support a determined boundary application.  Notwithstanding the words of Megarry J in Neilson v Poole (1969) 20 P. & C.R. 909, the boundary was left “fuzzy” at the edges.

So what do you do then?  Possession may once again be nine-tenths of the law!

Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. Please also note that this article represents the opinion of the author and does not necessarily reflect the view of any other member of chambers.