Commoner's corner #Grazingisgood
Kerry Dovey | 20.03.2019
17.08.2018 Simon Beetham
Rural and agricultural properties and Estates often have boundaries that are not clearly demarcated by physical boundary structures.
Disputes arise when landowners seek to clarify their boundaries or to understand the precise extent of land for which they are liable.
In one obvious example a landowner might want to sell some or all of his or her land. In a more complex scenario, questions might be raised over ownership when land is discovered to be polluted, having been used for illegal dumping, with the costs of cleaning the contamination stretching into the hundreds of thousands of pounds.
To determine the precise position of a property’s boundaries, people will often look to their title plan ‒ either as registered at the Land Registry if the property is registered or found within the title deeds to the property if it is not.
In the case of registered properties, where the boundaries are not stated in the title register to be “determined”, they will be general boundaries only. This means that the red line on the title plan marking the boundaries of the property is for general guidance purposes only and are not determinative of the precise position of the boundaries. This is therefore where disputes arise, as the red line on title plans can – subject to the scale of the title plan – upon a formal survey of the boundaries appear to be several metres wide: not a helpful outcome if seeking certainty as to the position of one’s boundaries.
In these circumstances, to determine the precise (or as precise as can be ascertained) boundaries requires consideration of the following (as well as other pieces of evidence which might be available):
Specific to agricultural and rural properties, the hedge and ditch rule is important to consider when the boundary in dispute is demarcated – or alleged to be – by a hedge and ditch. The rule was established in 1810 and the Judge who established the principle held that in circumstances where a hedge and ditch mark the boundary, there are two presumptions which if satisfied may be determinative of the boundary: (1) that it was reasonable to presume that a farmer digging a ditch would do so at the ‘furthest extremity’ of his land after the boundary has been established; and (2) that same farmer would pile the soil on his side of the boundary to create a bank on which a hedge might be planted. Therefore, creating a presumption that the outer edge of the ditch would be the edge of the property boundary. The hedge and ditch rule has been challenged and successfully upheld on numerous occasions since 1810.
Remedying boundary disputes
Remedying boundary disputes will often require the involvement of both legal and surveying expertise. The issues involved go beyond purely legal arguments and the process of determining the boundary is not always a simple plan and ground survey based exercise, therefore expert surveying input is usually required.
Whether or not the dispute reaches the Courts or First Tier Tribunal (Property Chamber) (“the Tribunal”), it is likely expert surveying evidence from a specialist boundary surveyor will be necessary. Their expert report can be used as evidence in proceedings, as a tool in a negotiation or to adjudicate determination of the dispute – if both parties agree to be bound by the boundary the expert surveyor establishes.
The principle means of resolving boundary disputes are:
Alternative Dispute Resolution
This would typically involve mediation, without prejudice meetings or expert adjudication. Similarly, the parties could resolve the dispute between themselves and terms of a boundary or settlement agreement be agreed.
Land Registry Determination
This option is available only to registered land and is briefly described by the Land Registry itself in its Practice Guide 40 and will be most appropriate where either: the parties are agreed on where exactly a boundary lies; or where the parties jointly instruct an expert boundary surveyor to determine the boundary. With the outcome of either of those, the party whose boundary is to be determined can then apply to the Land Registry to have its boundary recorded as such.
Claim for determination by the Court
This process would involve submitting evidence of your claimed boundary to the Court for a Judge to ultimately decide where the legal boundary lies. This exercise will require historic as well as contemporaneous evidence. The process can – as with all litigation – be costly, time-consuming, stressful and include an element of risk.
Application to the Tribunal for them to determine the boundary
This process runs very similarly to the Court process and the costs, time and risk are similar. The Tribunal process, however, can either be commenced by one of the parties independently, or upon one of the parties applying to the Land Registry to have the boundary determined and the other party then contesting that application; at which time the Land Registry will refer the matter to the Tribunal.
Moore Blatch’s rural and real estate litigation teams have significant experience in advising upon and assisting landowners in resolving boundary disputes. We work closely with boundary surveyors and other professional advisers when these disputes arise, to seek a swift and cost-proportionate resolution.
Should you have any contentious property related queries please do not hesitate to make contact.