Property Boundaries

Earl of Lytton Excerpts

Thursday 15th January 2015 Grand Committee

Asked by

[The Earl of Lytton]

To ask Her Majesty’s Government what proposals they have for the settlement of unclear or disputed property boundaries.

[The Earl of Lytton (CB)]

My Lords, I am most grateful for this opportunity to debate the matter of property boundaries and I thank the Minister both for his willingness to meet Charlie Elphicke, MP for Dover and Deal, and me on more than one occasion in the recent past, and for forewarning us of the Government’s scoping study published today. I am also grateful to other noble Lords, particularly noble and learned Lords, who are to speak today. I declare my interest as a practising chartered surveyor. I also chair the Boundaries and Party Walls Panel of my professional body, the Royal Institution of Chartered Surveyors. I am very much indebted to the groundwork of Mr Elphicke, who raised the matter in the Commons some time ago. Although his Bill did not progress, it triggered the formation of an expert panel of practitioners who took away the original Bill and have comprehensively revised it. The question now is whether the Government are minded to give this some time and support were it to be formally introduced.

An eminent boundary surveyor once prefaced a learned treatise by saying that when he met potential clients for the first time, he would advise how very expensive boundary disputes can be—so expensive in fact that for the money one could purchase a very good family holiday in the sun or even construct a swimming pool in the back garden. He would add that, fortunately for him, most clients ignored the advice which is why he had lots of foreign holidays and a large swimming pool.

Although the need for resolving boundary issues is most evident in the few cases that go to court, this is not representative of the whole picture. There is a hierarchy of needs in relation to boundary matters, which could simply be to facilitate voluntary registration at HM Land Registry, for the purposes of fence erection, because of a wish to transfer a property or sell it free from doubt as to where the boundaries lie, through to a wish to build or develop land in respect of which the boundary position may be economically important, the purposes contentious and the planning mechanism adversarial. Competing interests in land as to extent and intensity often breed acrimonious and hotly contested situations, although these remain a minority. However, as soon as you raise the issue of a boundary position quite innocently with a neighbour, the balloon often quite literally goes up. Innocent enquiry is fettered and the consequences can be very serious, if not disastrous.

Much of the problem lies in the distant past. Although the paper documents involved with the transaction of land have a long history in this country, actual boundaries are often extremely poorly defined. Maybe in the 19th century everyone knew where the boundaries of Farmer White’s property at Blackacre Farm happened to lie but later, when it mattered for other reasons, everybody seemed to have forgotten. Therefore, the legacy of poor descriptions and even worse plans drawn up by feckless trainees in surveyors’ or solicitors’ offices—I used to be one—adds to the problem.

More recent data are also at fault. Before the general use of digital survey techniques, properties were often sold off-plan and the interests of prospective purchasers and their mortgagees registered against a master plan before a dwelling was ever built. However, nobody thought to check the as-built result. The fencing sub-contractor, with his usual incomplete regard for the legality of boundaries, often added to the problems, as I have encountered professionally. Years ago, I attended a meeting of bigwigs to discuss e-conveyancing and the digitisation of the Land Registry and was unwise enough to suggest that this legacy would henceforward travel at the speed of light and be treated as holy writ thereby. Eyes narrowed perceptibly on the other side of the table. However, I pay tribute to the Land Registry for a remarkable performance in spite of this backcloth of defective raw data.

Land registration works to a general boundaries rule that gives an approximate boundary indication only, except for the very few cases where a formal determined boundary has been registered. The data are plotted on an Ordnance Survey base to either a 1:2500 or a 1:1250 scale, and it has to be noted that OS plans themselves are expressly not definitive of legal boundaries. Note, too, that for a 1:2500 scale a line 0.3 millimetres thick on the OS plan equates to 750 millimetres on the ground, and features closer to each other than about two metres are not shown as separate items on the OS plan at all. This begs the question as to what feature or part of it the OS plans were intended to represent. The Land Registry does not always hold adequate pre-registration documents and many original documents have either not been retained or worse—because they are part of social history—have been deliberately destroyed. Far from everything, of course, is actually registered; much uninterrupted historic ownership, along with a good deal of community, parish and highway land, never mind overriding interests of one sort or another, is simply not registered at all.

In many situations, the boundary may be physically self-evident and identifiably long-standing. Some lack of precision may even be of benefit in allowing a degree of flexibility and evolution, especially when coping with the work of garden fencing contractors. However, in cases of dispute, and especially on tight urban sites, matters are compounded by a substantial legacy of poor or simply inaccurate title documents. Boundary disputes have, I believe, been increasing over a number of years and although, as I say, relatively few cases get to the courts, those that do are often ruinously expensive. The problem of costs in the action frequently and rapidly outstrips the financial value of the disputed land, which raises the stakes and makes it ever more difficult for the parties to settle.

Many cases, of course, collapse without getting to court simply because one party can no longer afford to pursue the matter. That is not in the interests of justice and seems to me to be inherently unsatisfactory. If advice as to likely costs is taken on board right at the start, people often decide simply to accept the fact and roll over in the face of reality—something sometimes taken advantage of by aggressive neighbours. Moreover, in many non-contentious situations where there is just a simple need to know the correct boundary, even raising it with a neighbour can be dangerous. As I have said, planning applications often give rise to such queries.

Unclear boundaries—and, worse, unresolved boundary disputes—are, of course, a material barrier to sale. Nobody wants to buy a property where there is an unresolved boundary dispute. This can be deployed by unscrupulous owners against their neighbours. Then there is the mistaken belief that unregistered land is somehow ownerless—often aided and abetted by some unscrupulous companies, it has to be said—and therefore up for grabs in some way. That causes problems. Latent uncertainty impedes development or redevelopment proposals, as well as necessary alterations, adaptations and even basic maintenance. For instance, I know of situations where the ownership and control of historic ditches has importance for the long-term drainage of development sites or for preventing neighbours filling them with rubbish or building over them. As the eminent boundary expert David Powell said in an e-mail to me earlier this week, the visible instances of court cases are believed to be but the tip of a much larger iceberg.

Clear boundaries are as essential to property ownership and value as permitted use. Owners need to be able to rely on where their boundaries are situated and who owns a boundary feature or has responsibility for a hedge, ditch, boundary, retaining wall or roadside embankment. People often assume, erroneously, that formal land registration guarantees title; regrettably, it does no such thing. The matter is made worse by the law on adverse possession, with its combination of motive and opportunity, and the high costs of resisting it.

Australia recognised this problem long ago and although I believe that the matter is dealt with nationally under something called the Dividing Fences Act, an effective, workable system occurs on a state-by-state basis. The noble Baroness, Lady Gardner of Parkes, who is not able to be here today, was kind enough to obtain for me some information about this. At present, a formal determined boundary can be achieved only by mutual agreement between neighbours. This makes it impractical for cases where it is not in the collective interests of both owners from the outset. It is certainly of no use when a dispute has arisen. Land Registry adjudication, as I understand it, generally concerns only the accuracy of the register.

As properties become more valuable and urban space scarcer, the position of boundaries becomes more crucial. I believe that the mark 2 Bill that has been drafted, a copy of which I have circulated and placed in the Library, would solve this. I am aware that the Minister may feel that it is unnecessary. The same was said, of course, of the Party Wall etc Bill that I had the privilege of taking through all its parliamentary stages in this House back in the 1990s. The mark 2 Bill can and would be of assistance in removing many disputes from the courts and providing better self-regulation and a cost-effective starting point in the event of the court having to intervene. The formula that is proposed would enable the end product to be recorded without recourse to conventional litigation. It would start with a system of notification of a boundary proposal which, if disputed, would trigger a dispute resolution procedure. I believe that it is in the public interest and that it would be a good thing for the maintenance of property and the removal of contention from what should be the peace and tranquillity of people’s own homes.