Whose (boundary) line is it anyway?

Whose (boundary) line is it anyway?

March 2011

by Paul Denholm, Head of Planning Risk and Solicitor

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Despite detailed guidance from the Land Registry and the provisions of the Land Registry Act 2002, boundary disputes remain a major conveyancing risk. Paul Denholm, Head of Planning Risk and Solicitor at First Title, examines the issue and explains how First Title's latest innovation can help solicitors better protect their clients from this risk.

Solving boundary disputes has always been a thorny issue. The local and national media are full of stories of woe from homeowners who have been unable to resolve boundary disputes satisfactorily, resulting in stressful, expensive and sometimes deadly outcomes.

Territorial gain, however slight, seems to be the key motivating factor. And disputes are able to persist, at least in part, because the measurement and recording of boundaries is far from an exact science.

There has never been complete clarity on this point. Despite the provisions of the Land Registry Act 2002; the extensive guidance from the Land Registry on mapping techniques - including Practice Guide 40: Land Registry Plans (October 2005) and Land Registry Public Guide 7: Title plans (March 2003); and the volume of case law on the subject - clear, unambiguous boundaries remain difficult to tie down.

The Land Registry's own practice guide states that the precise position of the legal boundary is often unclear because of:

  • the difficulty in defining the boundary, which has no special meaning in law and can relate to a legal boundary not visible on the ground or a physical feature such as a fence, wall or a hedge;
  • the deeds being silent on this issue;
  • the various legal presumptions that may apply to determine ownership.

This means that the great majority of land in England and Wales is registered with general boundaries only.

The situation might be improved if, with every new conveyancing transaction, solicitors physically walked the boundaries of properties to verify them, accompanied where appropriate by a surveyor. However, the fact is that this has not been standard practice for the past 40 years. 

Ascertainment of boundaries typically consists of a review of title plans from the Land Registry which are largely based on Ordnance Survey plans. These have a relative accuracy variance of between +/- 1.1m and +/- 10.1m. Furthermore, title plans show the general position of a property as opposed to the exact line of boundaries and are subject to distortions in scale. Add to this the fact that boundaries can change over time - for example, a diverted water course or a fence that moves slightly each time it is replaced. It's hardly surprising then that honest mistakes can be, and often are, made. 

Writing in the June 2010 edition of Property in Practice, surveyor Gerry Bird highlighted the potential benefits of new technology, such as GPS, in providing more accurate measurement of boundaries.

GPS can provide levels of accuracy to within 20mm. But, as Mr Bird points out, the new technology may also add to the problem. In his view, the use of highly precise measuring tools is likely to lead to a rise in the number of disputes because "GPS surveys conducted now can reveal inaccuracies in land boundaries previously agreed." 

Perhaps the only real solution would be for the boundaries of every property in the country to be re-measured, re-drawn where necessary and accurately recorded. This seems very doubtful and, indeed, the Land Registry's own practice guide makes provision for ascertainment of exact boundaries by means of an application for a 'Determined Boundary'. This is a potentially complex, expensive and, not surprisingly, little known procedure that is rarely pursued.

Mr Bird goes on to highlight the potentially crippling financial impact these disputes can have on those affected. He writes: "Boundary disputes are extremely costly..." - a view that is echoed by the RICS in its consumer guide to boundary disputes, in which it states "Even more damaging are the costs involved...the cost of protecting your right to land could be 50 or 100 times as much..."

A recent dispute between neighbours over a 6cm strip of land clearly illustrates the point. The victim was ultimately able to assert her ownership rights over the disputed land. She won her case in court and then won an appeal. But she racked up a legal bill of more than £80,000 in the process. In order to settle the bill she will have to sell up.

A similar example left one complainant, Mr Lane, facing an estimated £500,000 legal bill after losing a boundary dispute with his neighbour, Mr Ali.  Having earlier lost a squatter's rights claim, Mr Lane took the row to the Court of Appeal and lost. The presiding judge, Lord Justice Carnwath, said that professional advisers should be under a duty to ensure that their clients were "aware of the potentially catastrophic consequences" of taking such disputes to court.

Boundary disputes can occur at any time during the course of home ownership and conveyancers have a duty of care to ensure their clients are as protected as possible. Ergo all conveyancers should question the seller on the buyer's behalf before contracts are exchanged. But how are conveyancers supposed to help their buyers when a seller misrepresents the true picture? The sad truth is that there is nothing that the conveyancer or buyer can do when problems develop after completion, other than to consider whether it is worth suing the seller for any losses that follow.

Lord Hoffman has expressed the view that: "Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent."

As with mortgage fraud, boundary disputes show up a weakness in the present system of risk management for consumers and lenders in the conveyancing process. 

In any other area of life, these risks would be unacceptable and it's a wonder that for so long sellers, buyers and lenders have not had the opportunity to buy their own insurance policy to protect themselves. 

Pamela O'Brien of Redbird Conveyancing is clear on this point. She says: "I've never understood why there isn't blanket title insurance in the UK. There is in the US and it makes transactions so much smoother. Funny to think that in this country, the foundation and cornerstone of property law for the English-speaking world, the market is behind the times."

In September last year, First Title Insurance plc's launch of the Home Owner's Protection Policy (HOPP) started to address these anomalies. The no-fault policy offers comprehensive cover for homebuyers and lenders.  Critically, it covers legal expenses, so answering Lord Hoffman's concerns regarding the potentially catastrophic financial consequences of fighting a boundary dispute in court.

Since the introduction of the HOPP, the policy has been used to protect around £100 million worth of residential property against boundary disputes and other unknown and known conveyancing risks. Already around 120 firms are consistently offering the policy to their clients. 

Redbird Conveyancing is at the vanguard of these firms: "We've been offering the HOPP on every purchase. It seems to sell especially well to buyers who are purchasing from mortgagees in possession where very little is known about the property and no title guarantee is offered," says Pamela O'Brien. 

Even taking account of the current contraction in conveyancing activity, total value of house sales for the coming year is estimated to reach around £146 billion*. By anyone's reckoning, that's a sizeable chunk of assets in need of protection from conveyancing risks. 

As solicitors and conveyancers take on this responsibility on behalf of their clients, at least they now have one very effective tool at their disposal.

So far as boundary disputes are concerned, it can only be hoped that legal indemnity products such as the HOPP become more routinely integrated into conveyancing risk mitigation strategies.

*Based on the Halifax's average house price of £162,435 and 900,000 projected house sales for 2011 as quoted by the RICS.

Paul Denholm is an underwriter at First Title. He is also an experienced planning lawyer.

“This material is intended to provide general information only. For specific coverage and exclusions, refer to the policy.”

Paul Denholm - Senior Underwriter 

Prior to joining First Title, Paul had been in local government legal practice in England and South Africa for 15 years. An Advocate of the High Court of South Africa, he was involved in post apartheid land restitution settlements and regeneration schemes.  In his current role, Paul specialises in providing insurance solutions for property transactions affected by unusual risks such as planning defects, judicial review and commons & village green. Paul is also involved with developing First Title's online insurance solutions and streamlined underwriting processes.