This article provides a swift summary of the applicable law where a boundary is in dispute and cannot be determined decisively by the terms of the originating conveyance. This often is the case when the conveyance is ambiguous or insufficiently precise, so the court will need to consider the physical features of the land and other extraneous factors to help it determine the exact boundary.
The Starting Point
In any boundary dispute, the first port of call is the originating conveyance when the two plots of land were first divided into separate ownership and the boundary in dispute was created. This starts with analysis of the parcels clause in the conveyance describing the relevant land and the conveyance plan.
If the originating conveyance is available and clearly defines the boundary, this will be conclusive and extrinsic evidence is not admissible to contradict the transfer: Scarfe v Adams [1981] 1 All ER 843.
A useful authority on boundary disputes is Pennock v Hodgson [2010] EWCA Civ 873. The main principles on how to construe a boundary can be summarised below:
- Start by looking at the conveyance which contains the parcels clause describing the relevant land, often it’s the first conveyance in time.
- Analyse the conveyance plan and consider the extent of its accuracy.
- If the terms do not clearly define the land or interest transferred then precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.
- In principle, there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the Court to reject the plan as evidence of the boundary.
Practical tip: When analysing the conveyance, the indicators below may reveal the usefulness of the conveyance in construing a boundary:
- Is there a written conveyance that describes the parcel of land conveyed?
- If there is a written conveyance, how accurately does it describe the size of the parcel of land and where and what direction each elevation of the parcel begins and ends?
- The legal weight afforded to a plan depends on how it is described in the conveyance:
- If the plan says “for the purposes of identification only” this could be an indication that the plan does not define precise or exact boundaries.
- In contrast, if the property is “more particularly delineated on the plan” then the plan will generally be seen as providing the definitive description of the plot.
- Even if the property is described as being “more particularly delineated” on the plan:
- Any measurements will need a fixed datum point to be definitive.
- If there is no scale on the plan this can indicate lack of preciseness.
- If a plan is hand drawn, it may give rise to inaccuracies and oddities.
- Generally speaking, an Ordnance survey is very accurate, however, it will not fix precise private boundaries.
Extrinsic Evidence
If, on analysis of the conveyance, the boundary cannot be distinguished then it is necessary to contextualise the plan. As Mummery LJ explained in Cameron v Boggiano [2012] EWCA Civ 157:
“…the transaction plan must, as experts sometimes say, be contextualised. It was not entered into and is not to be construed in a vacuum. In more mundane terms this means that the reasonable layman would go to the property with the plan in his hand to see what he is buying. The reasonable layman is not a qualified surveyor or a lawyer. If the plan is not, on its own, sufficiently clear to the reasonable layman to fix the boundaries of the property in question, topographical features may be used to clarify and construe it.”
This part of the process involves the judge imagining that they are attending the relevant land with the conveyance plan in hand and considering “what would the reasonable layman think he was buying?”.
The judge is entitled to look at, for the purposes of construing the originating conveyance, for example:
- the measurements shown in other related conveyances
- topographical surveys
- aerial photographs
- historic photographs
- physical features on the land
- Ordnance survey plans showing the location of historical boundary features
The extraneous factors listed above are by their very nature subject to interpretation and often it is important that an expert is appointed to carry out an independent survey and, if possible, overlay the originating conveyance plan.
The Protocol for Disputes between Neighbours about the Location of their Boundary (The Boundary Disputes Protocol) provides helpful non-binding guidance on appointing experts. Specifically:
“4.3 In most cases where boundaries between gardens are disputed, and in some other cases, it will not be proportionate for the parties to have an expert each. In these cases, an expert should be jointly appointed (which means the expert owes the same duties to both parties, and the parties share the costs). The expert should be instructed within 5 weeks of the date when the First Conveyance is identified and should be asked to produce a short report within a further 4 weeks. Instructions should be given on the basis of Part 35.3 of the Civil Procedure Rules (CPR).
4.4 A jointly appointed expert who is a surveyor should carry out the following tasks:
(a) produce an accurate, computerised, plan of the physical features existing on the ground at the date of inspection;
(b) plot onto that plan the line shown on the First Conveyance plan, or, if there is more than one possible interpretation, the various possible boundary lines;
(c) explain why the various possible boundary lines arise – i.e. what interpretation of the First Conveyance and/or the other evidence leads to that line being chosen; and
(d) produce any photographs which the expert considers will assist.
4.5 In other cases (for instance, where there are proposals to develop one or both of the properties and the precise location of the boundary is important for the development proposals), it may be appropriate for the parties to instruct an expert each. Instructions to the experts should be given within 5 weeks of the date when the First Conveyance is identified. As above, instructions should be given on the basis set out in CPR Part 35.3, so that the experts are aware that in the event of litigation the duty of the experts is to help the tribunal which decides the dispute on matters within their expertise and that this duty overrides any obligation to the person from whom instructions are received or by whom they are paid.”
Practical Tip: Experts with specialist land surveying experience and with chartered qualifications should be used. This will serve as an investment during the litigation process as an early expert opinion will likely shed light on many of the factors relevant to construing the conveyance and garner productive settlement offers.
Subsequent Conduct
Further evidence of subsequent conduct can be taken into account, where the information contained in the conveyance is ambiguous. However, this will only be admissible if it is of probative value in determining what the parties to the original conveyance had intended: Ali v Lane [2007] 1 EGLR 71.
Take-away tips
- Creating a timeline of events is extremely helpful to ascertain the order of historic conveyancing documents.
- Thereafter, it is useful to decipher whether the originating conveyance is sufficiently clear as to the location of the boundary.
- It can be useful, at this point, to take stock and consider whether advice should be sought on the written clauses within the conveyance and the conveyance plan.
- If the originating conveyance is ambiguous, then consider whether there are extraneous factors i.e. physical features on the ground that are likely to sufficiently demonstrate what the parties intended to contract in the conveyance.
- A high quality expert report is crucial and can often trigger useful negotiations between parties.
- The costs can quickly multiply in boundary disputes and the court will look at the conduct of the parties in deciding whether to exercise its discretion under CPR 44.2. Thus, early mediation and WPSATC offers are key pieces to a boundary dispute toolkit.
Other claims
Those involved in boundary disputes may wish to also consider the principles of the following claims that are often made alongside boundary disputes:
- Adverse Possession
- Boundary Agreements
- Nuisance
- Harassment
- Breach of the Data Protection Act i.e. where CCTV has been used to monitor disputed land along a boundary between neighbours
As ever, if one is uncertain whether any of the claims above applies, advice should be sought at an early stage.
Written by Amanprit Kaur. Amanprit specialises in property disputes including boundary disputes. Amanprit recently acted for three claimants in a 4-day trial in Birmingham in a difficult boundary dispute between neighbours; it involved claims of trespass, nuisance and, usually, breaches of articles 5 and 6 of the GDPR based on the defendant’s use of CCTV.
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.
