Boundary dispute causes

Jon Maynard Boundaries Ltd, Boundary Demarcation and Disputes, Rights of Way, Expert Witness, Chartered Land Surveyor

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Causes of boundary disputes

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General Background
Technical factors in boundary disputes
Socio-legal factors
Psychological factors
A better way

 

General Background

It may be argued that the system of defining and recording property boundaries suffers from imprecise describing and recording of boundaries, and that we have made little or no progress in these matters since the setting up, as long ago as 1862, of the Land Registry. But in the last analysis, boundary disputes arise because of one landowner's lack of consideration for the owners of neighbouring land.

Far more boundary disputes occur between the owners of two adjacent residential properties than between commercial or agricultural neighbours. Residential landowners tend to tackle their disputes emotionally, standing by their principles and seeking what they perceive as justice, rather than rationally evaluating the relative merits of a number of alternative, pragmatic solutions to the dispute.

When boundary disputes arise, the power of the law is felt only in the courtroom, there being no equivalent authority in boundary disputes to the policeman who can intervene in a potential civil unrest to ensure that no breach of the peace or riot ensues.

Insufficient use is being made by residential landowners of alternative disputes resolution procedures such as mediation and arbitration, whilst the office of Adjudicator to HM Land Registry, established by the Land Registration Act 2002, although it reduces the number of cases taken to the County Court is itself a court of law.

If only landowners would act rationally and pursue a solution that minimises the cost to themselves in money, time and anguish then they wouldn't pursue a two- to four-year-long battle through the courts costing themselves tens of thousands of pounds in an argument over a narrow strip of land that probably has no discernible value - just ask a chartered valuation surveyor to value your house with the disputed fence where it now stands, then with the disputed fence in the place where you (or perhaps your neighbour) would like it moved to, then see if there is any difference in the two valuations.

 

Technical factors in boundary disputes

Technical factors include:

  • legal arguments as to whether adverse possession affects the case;
  • arguments as to whether certain legal presumptions (such as the hedge and ditch presumption) affect the case;
  • downright poor descriptions of the boundaries.

I shall pass over the legal arguments and concentrate on boundary descriptions.

Boundary descriptions can be expressed in words or they can be map-based.

Describing a boundary using words is something we English were once good at. It was known as a "metes and bounds" description. It relied upon:

  • giving a description of the physical feature that was adopted as a leg of the boundary (such as a hedge, the centre of a stream, etc) or two physical points between which the boundary runs in a straight line (such as two trees, rocks, etc);
  • measuring the distance covered by that leg of the boundary;
  • identifying the direction followed by that leg of the boundary.

Unfortunately, I have never seen a conveyance that employs the metes and bounds method of describing boundaries. All that we ever get in a conveyance deed, and then only if we are lucky, to help identify the position of a boundary is the distance: there is never a direction, and it is only in Scottish conveyances that I have ever seen a description of the feature that the boundary follows. I have never seen a conveyance that gives the directions, or bearings, that boundary lines follow.

Describing a boundary using maps or plans is something that we English have proved remarkably poor at.

There is a good reason as to why so many conveyance plans are so poor at identifying boundaries, and it is down to cost. It was only in the 1980's that angle measurement, distance measurement and computing technology were combined into a single surveying instrument so as to make land surveying more productive and cost efficient than ever before. Back in, say, the 1920's, a land surveyor would use one instrument for precisely measuring angles, had no means of precisely measuring distances (but could measure distances the tedious way using chains or a tape measure), and had to do by hand all of the trigonometrical calculations to turn his measurements into a plan. This made land surveying a very much more expensive process, and produced less accurate results, than we are accustomed to today.

So what vendor, prior to 1980, was going to spend the money needed to hire the services of a land surveyor? After all, an accurate description of the land was not seen as being necessary when it was up to the buyer to beware - caveat emptor - of what was being offered for sale to him? Conveyancing was already seen as expensive enough. So vendors have traditionally saved themselves money by relying on inadequate boundary descriptions.

Rather than pay for a map that describes the boundary accurately, common practice has been to use anything that comes to hand, such as:

  • an Ordnance Survey map, which may not be accurate enough for a precise definition of the boundary, and may be out of date and contain features other than those that defined the boundary at the date of the sale;
  • a tracing made from an Ordnance Survey map, which may introduce further inaccuracy;
  • a developer's plan of what the architect designed, which all too often differs from what was built and - crucially - where it was built;
  • a sketch map, lacking both scale and dimensions, on which you may be able to identify the property, but not its extent.

Dimensions: Lawyers are accustomed to the notion that maps and plans are not always as accurate as we would like them to be. Lawyers and landowners seem to have a blind spot over the accuracy of dimensions: the thinking appears to be that the dimensions are stated in black and white in a deed, which is a legal document, so therefore they are correct. I have so many reservations over dimensions that I am prevented from taking them at face value: in fact, I would say that dimensions should always be treated as being unreliable unless they are corroborated by some other evidence. These reservations are listed in the Parcels Clause section of the Deeds & Plans page. An example of a set of dimensions that are demonstrably incorrect is given in answer to the frequently asked question on the Investigating boundaries page.

Considering here just the bald dimensions: conveyances and transfer deeds never tell us:

  • who measured them: a qualified land surveyor or the landowner's gardener?
  • what equipment and/or method was used in the measurement?
  • what accuracy tolerances can be applied to the measurements?
  • whether the dimensions represent horizontal distances (as might be scaled from, or plotted onto, a map or plan) or slope distances (measured along the ground)?

To illustrate how significant these discrepancies can be: one case in Kent, where the land in question was steeply sloping, involved a dimension of 106 feet. It was not stated whether this 106 feet was a horizontal distance or a slope distance.

If the dimension was treated as a horizontal, or map, distance then it would be necessary to measure 114 feet up the slope in order to travel 106 feet across the map.

If that dimension was treated as a slope distance, then the equivalent horizontal distance across the plan was only 98 feet 6 inches.

Overlaying the conveyance plan upon an accurate survey failed to throw light on the correct interpretation of the 106 feet, especially as none of the physical features then present on the ground was located at exactly 106 feet, whether measured either horizontally or along the slope, from the opposite boundary.

Another problem with dimensions is that they never include sufficient information to unambiguously define the boundary.

For example, to unambiguously define the size and the shape of a triangle requires:

  • either the length of all three sides,
  • or the length of two sides and the size of one of the angles,
  • or two of the angles and the length of one side.

A knowledge of trigonometry will allow the calculation of the missing side lengths and angles.

Triangular parcels of land are extremely rare. I have come across only two. In both of those cases the conveyance was unable to correctly describe the boundaries of a simple triangle.

 In the example at left, the conveyance plan gives us insufficient information: the lengths of only two of the sides, and no angles.

You might assume that one of the boundaries runs perpendicular to the road. This would give you one angle of your triangle: 90 degrees. It would be simple to calculate the length of the third side using Pythagoras (no need for trigonometry). But you would be wrong. An accurate land survey of this site found that the line of the party wall is not in fact perpendicular to the road.

So the conveyance, which gave us only two sides and no angles, fails to correctly define the extent of the parcel of land.
In the example at right, the owner of "Original Land" purchased "New Land" so as to extend his garden into the junction between the two roads that bordered his land. There are two problems with the dimensions given in the conveyance for New Land:
  • the conveyance for New Land disagreed with the conveyance for Original Land as to the length of the common boundary of the two parcels of land;
  • when constructing the unique triangle defined by the three dimensions given in the conveyance to New Land, the resulting triangle does not fit in between the two roads as one would expect it to.

So that is a 100% failure rate in the attempts by the draftsmen of conveyances to unambiguously describe a triangular parcel of land. How do they fare in unambiguously describing quadrilaterals?

Mathematically, if you wish to unambiguously define a quadrilateral then you need to state:

  • either:  the lengths of all four sides plus the length of one diagonal,
  • or:  the lengths of all four sides plus the size of one of the corner angles.

This information is sufficient for someone versed in trigonometry to break the quadrilateral down into two unambiguosly identifiable triangles. I have never seen a conveyance that furnishes all five pieces of information called for above. So this also is a 100% failure rate in the attempts by the draftsmen of conveyances to unambiguously describe a four sided parcel of land.

A further problem with dimensions arises when the deeds state the length of a curve or of a sinuous line. Such a dimension is impossible to set out on the ground. An example of this is the 580'0" dimension seen in Fig.2 of the article Digital Boundaries in Eng & Wales

Given that it seems there is not a single conveyance draftsman in the country who is capable of unambiguously describing the shape and size of a parcel of land, then it is little surprise that neighbours have cause to argue with each other over the exact position of their boundaries.

 

Socio-legal factors

One factor in boundary disputes is a lack of education about boundaries among landowners. Most people simply do not understand, and why should they, that there is no government organisation that is charged with defining the extents of privately owned land. They automatically assume, wrongly, that Land Registry performs this function and that Land Registry's red edging identifies the line that precisely defines their boundary.

Another important factor in boundary disputes is the lack, in English law, of a concept of theft of land. Plants, statues, paving stones, parked cars, and almost anything else including the soil itself, may be stolen from your land, but the land itself cannot be stolen. Land can be possessed by someone other than the rightful owner, and if that possession is adverse to the interests of the rightful owner then the adverse possessor may eventually become the rightful owner. But if the rightful owner wins a civil case to recover his land, then the adverse possessor does not gain a criminal conviction for theft and cannot be sent to prison (unless of course he has demonstrated a contempt of court during the course of the trial). The prospect of an adverse possessor being rewarded with the title to the land he is claiming has provided encouragement to squatters. The lack of sanction of a failed adverse possession, by means of a criminal record and a prison sentence, means there is no deterrent against squatters. We have yet to see whether the Land Registration Act 2002 will bring about an end to squatters who occupy an entire parcel of land, but adverse possession is likely to remain a valid argument when it comes to boundary disputes.

But why does the law not recognise the concept of theft of land?

Think about car ownership. There is absolute certainty as to who owns the car. The car’s ownership is registered (according to the demands of the law) at the Driver and Vehicle Licensing Agency. The agents of the law (police) can very quickly establish the identity of the true owner of the car.

Think about land ownership and registration. Certainly, Land Registry unambiguously records title to land: but Land Registry is very unlikely to know precisely where your boundary is, unless the boundary is one of the pitifully few “fixed boundaries” or one of the very recent and still very few “determined boundaries”. So there is no certainty as to the precise position of the boundary and it would be difficult to establish whether “theft” of the land had actually occurred.

Until such time as we have a record of the precise position of every property boundary in the country (and that time appears to be so far away that it can be called never) then it would be very difficult to fairly try the proposed crime of land theft. So in the meantime we must accept that there is no such thing as the theft of land.

Another factor is the lack of intermediate legal processes that might defuse a boundary dispute and prevent it from escalating. A surveyor might at an early stage give his professional opinion as to where the boundary is, but it is only an opinion and does not carry any force of law. The surveyor does not have powers similar to those of a policeman who may intervene in a potential civil unrest to ensure that no breach of the peace or riot ensues.

A fourth factor is a lack of take-up of alternative means of dispute resolution that fall short of taking the matter to the county court. There are mediators willing, via a process of shuttle diplomacy, to facilitate a negotiated settlement between disputing neighbours, but their services are too infrequently used in the resolution of boundary disputes. There are adjudicators who will make impartial decisions as to the position of the boundary based on the evidence presented to them, but they are again infrequently used in the resolution of boundary disputes.

It remains to be seen whether the new post of Adjudicator to HM Land Registry, set up by the Land Registration Act 2002, will provide an acceptable alternative means of resolving boundary disputes. The Adjudicator to Land Registry is actually a court within the Tribunals Service of the Ministry of Justice. Early indications are that litigants who use it are sometimes as willing to spend money on legal advice and representation as if they were using the County Court or the High Court.

 

Psychological factors

For lack of other controls, psychological factors come into play and will often drive forward a dispute that could have been resolved had the matter been approached in an entirely rational manner.

One such psychological factor is greed. An example is a new owner who, only after moving into the house he has bought, notices that the fence is nearer to the side of his house than the conveyance plan shows it. Instead of accepting that he bought the land contained within the fence (which is the land that he was shown and was identified to him at the time he viewed the house), he presses a claim against his unwitting neighbour for the 'return' to him of land that he did not purchase in the first place.

The next example may also be described as greed although it could also be properly described as a pseudo-boundary dispute. It involves the landowner who desires to build an extension, garage, driveway or whatever along the side of his house but discovers there is insufficient room and fabricates a boundary dispute in order to manufacture the space demanded by his plans.

Another psychological factor is an arrogant disdain for the rights of the neighbour. It is quite possible to successfully press an unwarranted case against a neighbour who you know is not prepared to countenance the costs involved in defending his rights in court. If only there was a civil equivalent of the Crown Prosecution Service!

The two most powerful psychological factors are an emotive quest for justice and a determination by the injured party not to allow the neighbour to 'get one over'. When these operate together they provide an unstoppable momentum to see the matter through to the county court, no matter how long it takes, no matter how upsetting the process is, and no matter how much it costs.

 

A better way

It is inevitable to believe that there must be a better way of doing things, that would either prevent boundary disputes from happening, or that would make it easier to resolve disputes.

Other countries have other systems of land registration that tend to rely heavily on the accurate mapping, recording and the physical marking on the ground of boundaries. To change our system to a similar model would be inordinately expensive. It would also be more expensive to run and maintain, and whilst there might be fewer opportunities for boundary disputes, no system can be proof against boundary disputes.

Within the present system we can do nothing about the totally inadequate boundary descriptions in the deeds of existing properties. For new properties, Land Registry is trying to persuade developers of the wisdom of doing as-built surveys for use as conveyance plans. If developers used as-built surveys to register 'determined boundaries' (see Agreed Boundaries and Determined Boundaries) for the new properties then (so the thinking goes) these new houses could be marketed as being proof against future boundary disputes - and such a marketing advantage should provide enough incentive for the developers to abandon their practice of re-using layout plans for conveyancing. I haven't noticed any advertisements boasting boundary-dispute-proof housing, so perhaps it should be made a legal requirement for developers to carry out as-built surveys and to use these for conveyancing and land registration. Failing that, purchasers of new houses should perhaps consider insisting that the developer provides an as-built survey as a basis for the transfer plan, using a threat of action under the Property Misdescriptions Act 1991 if they do not comply.

Within the present system, professional advisors can at an early stage encourage the protagonists to take a more rational view of the dispute and to look at it in more economic terms. If clients and their neighbours can be persuaded at an early stage to commit to an amicable agreement or to mediation or arbitration, then considerable time, anguish and expense can be saved. Compare such a situation with an admittedly stereotypical boundary dispute between residential neighbours and the advantages are obvious: but it requires that both neighbours are convinced of the benefits for it to work. In the stereotypical boundary dispute between residential properties both parties stand on their principles, engage solicitors, obtain surveyors' reports, instruct barristers and go to court. The process can take three of four agonising years in which the anxiety may well make at least one of the protagonists very ill. The whole process will cost as much as the protagonists feel compelled to spend, typically between £25,000 and £50,000 each side. At the end of the day, one of the parties is going to lose the case and is likely to be ordered to pay a substantial proportion of the other party's costs. And all for a narrow strip of land to which a chartered valuation surveyor would ascribe no marketable value.

Contrast this with the stereotypical boundary dispute between two large commercial companies. For operational reasons they cannot contemplate the whole process lasting more than a few weeks. They will also want to minimise the effect of the dispute on their respective company's bottom line. Their boards will therefore take managerial decisions that minimise the time and cost elements of finding a workable solution to the dispute.

 

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