Prescription Act 1832
Ordnance Survey Act 1841
Law of Property Act 1925
Limitation Act 1980
Property Misdescriptions Act 1991
Access to Neighbouring Land Act 1992
Party Wall Etc. Act 1996
Human Rights Act 1998
Land Registration Act 2002
Anti-social Behaviour Act 2003
Legal Precedent
Civil Procedure Rules, Part 35: Experts and Assessors
Whilst it is not the purpose of this web site to offer legal advice, the web site would be incomplete without reference to the principal laws that affect its subject matter. These are dealt with in chronological order. When preparing a case for court, a barrister may make reference to other legislation not mentioned on the present page.
Prescription Act 1832
Section 2 of this Act deals with the qualifying period in support of a claim of an easement where there is no evidence of the granting of such easement. Section 2 is reproduced below.
| "No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said Lord the King, or being parcel of the Duchy of Lancaster or of the Duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of 20 years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of 40 years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing". |
The above quotation has been taken from:
Sara, C., Boundaries and Easements (2nd edition), Sweet & Maxwell, London, 1996
(ISBN 0421537906)
Ordnance Survey Act 1841
Ordnance Survey's maps were frequently used as the basis of conveyance plans,
and they are the basis of all title plans issued by Land Registry. But it is
important to understand that Ordnance Survey was tasked with mapping only the
public (or administrative) boundaries of the land. Section 1 of the Act starts:
| "WHEREAS several Counties in that Part of the United Kingdom called England have been surveyed by Officers appointed by the Master General and Board of Ordnance, and it is expedient that general Surveys and Maps of England, Scotland, Berwick upon Tweed, and of the Isle of Man, should be made and completed by Officers in like Manner appointed ; and that the Boundaries of the several Counties in England and Scotland, and of Berwick upon Tweed and of the Isle of Man, should be ascertained and marked out". |
Section 12 of the Act specifically tells us that Ordnance Survey has no remit to ascertain and record the positions of property boundaries:
| "And be it enacted, That this present Act .... shall not extend, or be deemed or be construed to extend, to ascertain, define, alter, enlarge, increase or decrease, nor in any way to affect, any Boundary or Boundaries of .... any Land or Property, with relation to any Owner or Owners, or Claimant or Claimants of any such Land respectively, nor to affect the Title of any such Owner or Owners, or Claimant or Claimants respectively, in or to or with respect to any such Lands or Property, but that all Right and Title of any Owner or Claimant of any Land or Property whatever within any Hundred, Parish, or other Division or Place whatever, shall remain to all Intents and Purposes in like State and Condition as if this Act had not been passed". |
The full text of this Act can be found at http://www.opsi.gov.uk/acts/acts1841/pdf/ukpga_18410030_en.pdf.
Law of Property Act 1925
The full text of this Act can be found at http://www.opsi.gov.uk/acts/acts1925/pdf/ukpga_19250020_en.pdf. The part of the Act to which reference is most frequently made today comes from Section 62 and is reproduced below.
| 62.-(1) A conveyance of land shall be deemed to
include and shall by virtue of this Act operate to convey, with the land,
all buildings, erections, fixtures,
commons, hedges, ditches, fences, ways, waters, watercourses,
liberties, privileges, easements, rights, and advantages whatsoever,
appertaining or reputed to appertain
to the land, or any part thereof, or, at the time of conveyance,
demised, occupied, or enjoyed with, or reputed
or known as part or parcel of or appurtenant to the
land or any part thereof. (2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof. |
Limitation Act 1980
This Act deals with the Ordinary Time Limits for Various Classes of Action. The full text of this Act can be found at http://www.opsi.gov.uk/acts/acts1980/pdf/ukpga_19800058_en.pdf. Sections 15 to 19 of the Act deal with Actions to Recover Land and Rent, and part of Section 15 is reproduced below.
| 15.-(l) No action shall be brought by any person to recover
any land after the expiration of twelve years from the date on
which the right of action accrued to him or, if it first accrued to
some person through whom he claims, to that person. (2) Subject to the following provisions of this section, where- (a) the estate or interest claimed was an estate or interest in reversion or remainder or any other future estate or interest and the right of action to recover the land accrued on the date on which the estate or interest fell into possession by the determination of the preceding estate or interest; and (b) the person entitled to the preceding estate or interest (not being a term of years absolute) was not in possession of the land on that date; no action shall be brought by the person entitled to the succeeding estate or interest after the expiration of twelve years from the date on which the right of action accrued to the person entitled to the preceding estate or interest or six years from the date on which the right of action accrued to the person entitled to the succeeding estate or interest, whichever period last expires. |
Property Misdescriptions Act 1991
The full text of this Act may be found at http://www.opsi.gov.uk/acts/acts1991/ukpga_19910029_en_1.
The Act describes itself as :
| "An Act to prohibit the making of false or misleading statements about property matters in the course of estate agency business and property development business" |
In the context of a boundary dispute, the relevance of the Act would be to enable a challenge against any dimension of a section of boundary, or width or length of a parcel of land, stated in a conveyance or a transfer deed. However, there are aspects of the Act that make it a less than useful instrument for a boundary dispute.
An offence under the Act occurs when
| a false or misleading statement about a prescribed matter is made in the course of an estate agency business or a property development business otherwise than in providing conveyancing services " |
So if you find that the dimensions stated in the conveyance are not true then you cannot take action against the solicitor who drew up the deed but must prove that the developer or the estate agent misdescribed the property. There are strict time limits within which action must be taken.
| 5 Prosecution time limit (1) No proceedings for an offence under section 1 above or paragraph 5(3), 6 or 7 of the Schedule to this Act shall be commenced after— (a) the end of the period of three years beginning with the date of the commission of the offence, or (b) the end of the period of one year beginning with the date of the discovery of the offence by the prosecutor, whichever is the earlier." |
The enforcement authority for the Act is nan organisation not noted for its expertise in measuring land:
| Enforcement authority 1 (1) Every local weights and measures authority in Great Britain shall be an enforcement authority for the purposes of this Act, and it shall be the duty of each such authority to enforce the provisions of this Act within their area. |
Access to Neighbouring Land Act 1992
The full text of this Act may be found at http://www.opsi.gov.uk/acts/acts1992/Ukpga_19920023_en_1.
The Act describes itself as :
| "An Act to enable persons who desire to carry out works to any land which are reasonably necessary for the preservation of that land to obtain access to neighbouring land in order to do so; and for purposes connected therewith." |
Party Wall Etc. Act 1996
The principal purpose of the Act would appear to be to safeguard the structure of neighbouring properties within a terraced or semi-detached building. But the Act also makes provision for safeguarding neighbouring structures whenever someone wishes to excavate their own land close to structures on a neighbouring property. Or as the Act describes itself:
| "An Act to make provision in respect of party walls, and excavation and construction in proximity to certain buildings or structures; and for connected purposes." |
The Act provides us with definitions for the terms "party wall" and "party fence wall" (see Glossary).
The full text of this Act may be found at http://www.opsi.gov.uk/acts/acts1996/Ukpga_19960040_en_1.
Human Rights Act 1998
| Part II The First Protocol Article 1 Protection of property Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. |
The full text of this Act may be found at http://www.opsi.gov.uk/acts/acts1998/ukpga_19980042_en_1.
Land Registration Act 2002
This is the Act under which Land Registry now operates. Of particular interest is the statement - in the Act itself, rather than in the Rules - that registered boundaries are general boundaries.
| Boundaries 60 Boundaries (1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section. (2) A general boundary does not determine the exact line of the boundary. |
What the above quote is telling us is that Land Registry is not a general
repository for the definitions of the exact positions of property boundaries.
Reading between the lines, Land Registry is not the authoritative national archive
for the exact positions of property boundaries. To make this point perfectly clear,
Land Registry and Ordnance Survey (on whose maps the Land Registry title plans
are based) have found it necessary to issue a joint statement that can be found
on their respective web sites:
http://www1.landregistry.gov.uk/about_us/ordsurvey/, and
http://www.ordnancesurvey.co.uk/oswebsite/site/contact/boundaries.html.
If Land Registry is not the national authority on the exact positions of property boundaries then it is reasonable to ask, who is the authority? Sadly, the answer is that there is no such authority. Land Registry's role is simply to record what an existing land owner can tell Land Registry, at the time a parcel of land is first registered, about the land, about who has legal interests in the land, and about where the boundaries of that land are located. Usually, these landowners simply do not know the exact locations of their boundaries, and this leaves Land Registry with no option but to record only the general positions of the boundaries.
The Act does, however, make provision to enable exact boundaries to be recorded, in the following terms:
| (3)
Rules may make provision enabling or requiring the exact line of the boundary of
a registered estate to be determined and may, in particular, make provision about —
(a) the circumstances in which the exact line of a boundary may or must be determined, (b) how the exact line of a boundary may be determined, (c) procedure in relation to applications for determination, and (d) the recording of the fact of determination in the register or the index maintained under section 68. (4) Rules under this section must provide for applications for determination to be made to the registrar. |
The above provisions have not resulted in a national campaign to improve the
definitions of property boundaries. However, they do allow individual landowners
to apply to Land Registry for the determination of the exact line of their boundary
or boundaries. In practice, this means the landowner needs professional help from
a land surveyor to establish the exact location of their boundary and to accurately
map and describe that boundary. Unless the agreement of the adjoining landowner
as to the exact position of the boundary is obtained then the application is
doomed to rejection by Land Registry.
The Land Registration Act 2002 also makes new law relating to adverse possession.
| Part 9 Adverse possession 96 Disapplication of periods of limitation (1) No period of limitation under section 15 of the Limitation Act 1980 (c. 58) (time limits in relation to recovery of land) shall run against any person, other than a chargee, in relation to an estate in land or rentcharge the title to which is registered. (2) No period of limitation under section 16 of that Act (time limits in relation to redemption of land) shall run against any person in relation to such an estate in land or rentcharge. (3) Accordingly, section 17 of that Act (extinction of title on expiry of time limit) does not operate to extinguish the title of any person where, by virtue of this section, a period of limitation does not run against him. 97 Registration of adverse possessor Schedule 6 (which makes provision about the registration of an adverse possessor of an estate in land or rentcharge) has effect. |
Note: Schedule 6 may be viewed at
http://www.opsi.gov.uk/acts/acts2002/ukpga_20020009_en_15#sch6 .
| 98 Defences (1) A person has a defence to an action for possession of land if — (a) on the day immediately preceding that on which the action was brought he was entitled to make an application under paragraph 1 of Schedule 6 to be registered as the proprietor of an estate in the land, and (b) had he made such an application on that day, the condition in paragraph 5(4) of that Schedule would have been satisfied. (2) A judgment for possession of land ceases to be enforceable at the end of the period of two years beginning with the date of the judgment if the proceedings in which the judgment is given were commenced against a person who was at that time entitled to make an application under paragraph 1 of Schedule 6. (3) A person has a defence to an action for possession of land if on the day immediately preceding that on which the action was brought he was entitled to make an application under paragraph 6 of Schedule 6 to be registered as the proprietor of an estate in the land. (4) A judgment for possession of land ceases to be enforceable at the end of the period of two years beginning with the date of the judgment if, at the end of that period, the person against whom the judgment was given is entitled to make an application under paragraph 6 of Schedule 6 to be registered as the proprietor of an estate in the land. (5) Where in any proceedings a court determines that — (a) a person is entitled to a defence under this section, or (b) a judgment for possession has ceased to be enforceable against a person by virtue of subsection (4), the court must order the registrar to register him as the proprietor of the estate in relation to which he is entitled to make an application under Schedule 6. (6) The defences under this section are additional to any other defences a person may have. (7) Rules may make provision to prohibit the recovery of rent due under a rentcharge from a person who has been in adverse possession of the rentcharge. |
The full text of this Act may be found at http://www.opsi.gov.uk/acts/acts2002/ukpga_20020009_en_1.
Anti-social Behaviour Act 2003
This may at first glance appear to be a strange Act to cite on a web site about boundaries and other neighbour disputes. However, Part 8 of the Act (Sections 65 to 84) deals with High Hedges).
| Part 8 High Hedges Introductory 65 Complaints to which this Part applies (1) This Part applies to a complaint which — (a) is made for the purposes of this Part by an owner or occupier of a domestic property; and (b) alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person. (2) This Part also applies to a complaint which — (a) is made for the purposes of this Part by an owner of a domestic property that is for the time being unoccupied, and (b) alleges that the reasonable enjoyment of that property by a prospective occupier of that property would be adversely affected by the height of a high hedge situated on land owned or occupied by another person, as it applies to a complaint falling within subsection (1). |
| (4) This Part does not apply to complaints about the effect of the roots of a high hedge. |
The full text of the Act may be found at http://www.opsi.gov.uk/acts/acts2003/ukpga_20030038_en_1.
LEGAL PRECEDENT
Statute law should be viewed as a framework within which society is expected to behave. Statute law (i.e. the law laid down in Acts of Parliament) cannot be expected to predict the fine detail of every potential future infraction of the law. As a result, a considerable body of law has resulted from the decisions, or judgments, that judges have made as they have deliberated during individual cases. This body of law is referred to either as "case law" or as "legal precedent".
When a barrister is preparing a new case for court he or she will consider whether a previous case exhibits sufficient similarity to the present case for it to be used as a precedent. Such a "legal precedent" from case law will be referred to by the names of the two parties to the litigation, such as Smith v Jones".
All of the text books (see Reading List) will cite the relevant case law. However, case law is being added to and a serious student will want to subscribe to a legal updating service.
The layperson should be cautious about using case law. The circumstances of his or her case may be subtly different from the case that established the legal precedent and it would be wise to seek legal advice on the matter.
Civil Procedure Rules, Part 35: Experts and Assessors
If you choose to settle your dispute by taking the matter to court (as opposed to using mediation, arbitration, adjudication) then you may wish to know that your Expert's conduct will be governed by the rules found at http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part35.htm.
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