Why do boundary disputes arise?
I was considering the issue of using aerial photos to resolve boundary disputes, when I recalled this article. It is a few years old now, but gives us a good insight into why disputes arise. It was written by John Maynard FRICS.
Far more boundary disputes occur between the owners of two residential properties than between commercial or agricultural neighbours. A typical boundary dispute will be influenced by a variety of factors, some of them technical, some of them socio-legal, some of them psychological.
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. There is a good reason as to why so many boundaries are so badly described, and it is down to cost. Describing a boundary in words is extremely difficult, and only a land surveyor would know and understand all of the things that should be included in such a description. Describing a boundary in a picture (ie. a map) is relatively easy – for a land surveyor. The trouble is that it costs money to hire the services of a land surveyor to draft or draw what is seen as only a minor part of a conveyance deed, and conveyancing is already seen as expensive enough. So vendors and purchasers have traditionally saved themselves money by relying on inadequate boundary descriptions.
Some boundary descriptions rely entirely on drawings, others include dimensions to supplement the drawings. Here are the problems that are all too common.
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 so therefore they must be right. I have many reservations over a list of dimensions.
– Who measured them: a qualified land surveyor or the landowner’s gardener?
– What equipment and/or method was used in the measurement?
– Do the dimensions represent horizontal distances (as might be scaled from, or plotted onto, a map or plan) or slope distances along the ground?
To illustrate how significant these discrepancies can be: one case I worked on in Kent involved a dimension that told me the piece of land was 106 feet wide. The land was steeply sloping, and if that dimension was a slope distance, then the plan (or horizontal) distance was only 98 feet 6 inches.
Another problem with dimensions is that they never seem to be given with sufficient information to unambiguously define the boundary. For example, if you give me a set of three dimensions then you are unambiguously defining the size and shape of a triangle (but not of its position on the earth’s surface). I have yet to come across a property that is a simple triangle. Most pieces of land have four, or many more, sides. Give me a larger set of dimensions (than the three sides of a triangle) and you are defining nothing, as the diagram on the right should convince you.
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.
Maps and plans: A wide range of types of plan has been pressed into use as conveyance plans. In the ideal world a conveyance plan should be at a large scale (preferably at 1:500 or at the even larger 1:250 or 1:200 scale) and should show what was actually built. I understand that conveyance plans based on such as-built surveys do exist but I have yet to see one. Here is a list of the types of conveyance plan that I do come across and of what can be wrong with each of them.
Copies of Ordnance Survey maps or of Land Registry plans. Land Registry plans are of course essentially just copies of Ordnance Survey maps. There are references to the accuracy of Ordnance Survey mapping elsewhere on this page. The important thing to repeat here is that Ordnance Survey maps show the physical features that their surveyors encountered and that their surveyors do not make enquiries as to where property boundaries are. So Ordnance Survey maps do not show property boundaries and skillful map interpretation is needed to reconcile the information from the conveyance plan with what one finds on the ground.
Tracings of Ordnance Survey maps. A lot of conveyance plans from the first half of the twentieth century are clearly tracings made from Ordnance Survey maps. If one has to worry about the accuracy of the original Ordnance Survey map, then a tracing made from it can only contain even more inaccuracy.
Developers’ layout plans. Before a green (or brown) field site becomes a housing estate it is necessary for an architect to make detailed drawings showing where all the roads, underground services, houses, an fences will go, and where the preserved trees will be allowed to remain. To save on cost, these same drawings will be used as the basis of the conveyance plans for the individual houses and their appurtenant land. The trouble is that the roads and underground services may have had to take slightly different routes, with the result that the houses had to be built in slightly different places, which meant that the fences went up in places other than the architect had in mind. The end result is that the conveyance plan (ie. the layout plan) bears little resemblance to what was actually built on the land.
Sketch plans. The very name warns of their likely inaccuracy.
Other plans. I once told a client that the plan to his 1899 conveyance was by far the most accurate I had seen. It was beautifully drawn and bore a scale of 1 inch = 30 feet (or 1:360). I later enlarged an Ordnance Survey map to the same scale, overlaid the two, and they didn’t fit. Of course, it is possible that this is because the smaller scale (1:1250) Ordnance Survey map was less accurately surveyed than the conveyance plan, but somehow I doubt it (I didn’t have the opportunity of checking it by doing my own survey). This incident does highlight the need to avoid taking things at their face value and to make your own independent checks.
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 is an 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.
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.
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, not 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 and ‘Determined’ Boundaries”, on the Boundaries page) 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.
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 protagonist 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 that is probably worth only £1,000.
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.
To find out more about how old and historical aerial photos can help you to resolve your boundary dispute, please visit http://www.oldaerialphotos.com.