A boundary is a notional line dividing two plots of adjoining land. In a physical sense, it may refer to a boundary object, such as a fence or wall. The physical boundary which need not necessarily mark the legal boundary.
Boundaries are established by the acts of owners by statutes and by common law presumptions. Principles of adverse possession may cause the physical boundary to become the legal boundary over time.
Land is notionally divided by an imaginary vertical division upwards towards the sky and downwards towards the centre of the earth. There are limits to a person’s ownership upwards and downwards. Generally, land may be owned only up to a height that may usefully be used for the ordinary use of land. The use of land is significantly curtailed by planning laws and other rules which place a practical limit on the height of structures.
Boundary divisions may be horizontal in the apartments and other multiple unit buildings. There are presumptions applicable to leases or conveyances of multiple units. The conveyance or lease of a roof space includes the airspace above the roof. Correspondingly where part of the premises is defined by reference to the floor or base of the building, the lease or conveyance is presumed to include the subsoil.
These are however presumptions only, and with apartment and multiple unit schemes such spaces are almost invariably designated as common parts. The Multi-unit Development Act confirms this principle, in the case of residential development.
Boundaries may be fixed by the agreement of two adjacent owners with full title. This may happen where their boundaries are or have become unclear. The agreement need not necessarily be in writing or by deed, although this will assist in terms of proof.
The location of boundaries may be fixed by the conveyance or transfer, by which the title to a property is first carved from the adjoining title. However, many conveyances will leave the exact boundary undetermined.
In the vast majority of cases, the precise location of the boundary will not be of practical relevance.
In many cases, the boundary will be coterminous with a physical structure, such as a wall. In other cases where it is less clear-cut. There may be no practical necessity to define the precise boundary.
In the case of Land Registry conveyancing, the registered title is are marked on the Land Registry map. When Land Registry title is divided or where title registration in compulsory (as is now the case in all counties) a compliant Ordnance Survey map or on existing land registry map must be used to define the property.
Unregistered Title Deeds Maps
A boundary may be described in a deed by words or with reference to maps. The extent of the grant or transfer will be determined by the wording of the deed. Words may refer to particular features and descriptions, which set out the extent of the property.
A written description only may be present. The extent of the grant or transfer will be determined by the wording of the deed. The deed may incorporate a reference to the land registry map.
Under standard conveyance practice, the seller is not obliged to define boundaries precisely. This applies to both registered and unregistered title.
Older unregistered title maps are notoriously unreliable. They may be poor in quality.
The map may be referred to as being “for identification purposes only” in which case it assists in determining boundaries that will not usually define the precise boundary. Other wording may give greater significance to the map, such as where the property is described as “delineated or more particularly described” on the attached map.
The interpretation of a deed and ascertainment of the extent of property included is ultimately a matter for a court in the event of a dispute. If the extent of the land is clear, then external evidence will not be permitted to contradict or limit it. However if the property is not clearly defined, then external evidence may be admissible in order to illuminate the intention and meaning of the parties.
See the separate chapters on the Ordnance Survey. The Ordnance Survey carry out periodically, a physical survey of “ordnance” or physical features, such as walls, maps, buildings etc. on the ground. Ordnance Survey maps are used by the Land Registry. They are commonly used in modern times, as plans for unregistered title conveyances and leases.
Ordnance survey plans do not purport to fix legal boundaries. They show physical boundary features in accordance with established conventions. In some cases, such as with a wall, the boundary line will coincide with the line of the ordnance survey. In other cases, such as with a hedge or ditch, the ordinance survey convention may show a straight line, which does necessarily coincide with the physical position.
Although Land Registry conveyancing adopts ordnance survey details, Land Registry legislation deems boundaries not to be conclusive, unless specifically fixed. The adjoining owners may apply to the Land Registry to fix the boundary. However, this is rarely done.
Where a party transfers title to land while retaining a part, the general principle of interpretation is that it is interpreted against the interests of the person who transfers or grants the land or property (the grantor). If there is an inaccuracy, ambiguity or uncertainty, it is likely to be interpreted against his interests in the event of litigation.
Where lands are erroneously included in a conveyance, it may be possible to obtain relief from the court, by way of rectification.
Boundaries are commonly settled by the operation of the Statute of Limitations. It may confer title to the occupier on either side of a physical boundary. Under the Statute of Limitations, where a party has been in undisturbed possession of property for 12 years or in some cases longer periods, a third-party with a documentary title may be displaced and his title may be extinguished.
Generally, the acquisition of title by long possession requires acts and use of the land for the requisite period, inconsistent with the title of the person with documentary title.
Where a person builds a wall along the legal boundary with the adjoining property, he may require an easement of support by long use.
A person may acquire title to land by estoppel. Where a person takes possession of property on the basis of an expectation encouraged by and with the consent of the “true” owner, that he may obtain effectively, an interest in it, by estoppel. If in reliance on the encouragement, he expends significant money or alters his legal position to his detriment, a court will generally “estop” the true owner from reasserting the strict legal position and denying the expectation.
Where a person builds close to or at a boundary in the expectation or belief that he is entitled to do so and the true documentary owner, knowing the true position, does not object, the latter may be estopped from asserting title. Adjoining owners may act in reliance on a mutual assumption as to the true position of the boundary (such as a boundary wall). They may be thereby estopped from denying that the wall represents the boundary.
Common Law Action
There exists an ancient jurisdiction in equity to order an inquiry by way of commission through the court offices, in order to ascertain the extent of boundaries which are uncertain. Proceedings may be in chamber or by a commission. A commission may be granted in equity only, where there has been some inequitable conduct, on the part of the respondent.
A boundary may be determined in a common law action for the recovery of land, trespass or nuisance. A declaration may be made in an action in which the title of the parties is in issue. In these cases, the determination of the boundary is not necessarily conclusive against “the whole world” as it is binding between the parties to the litigation only.
A title claim is relative to the parties. A person may recover only on the basis of his own title. He may not assert a third party’s title. However, it will bind their successors, so that it may be conclusive for practical purpose.
If notwithstanding the wording of the relevant deeds and the admission of external evidence the position is unclear, legal presumptions may be employed in relation to the boundary features. All of these presumptions may be rebutted and contradicted in the circumstances. They are not conclusive. However, until rebutted the presumptions may apply. While legal presumptions may assist the position, the presumptions may be contradictory in the circumstances.
In the case of wooden fences, it is presumed that the fence belongs to the person on whose side the rails and post are placed. However, the other owner may rebut the presumption, by showing that he has exercised acts of ownership in relation to the fence. Where a fence adjoins a highway or wasteland, it is presumed to belong to the owner of the other lands.
An artificial boundary structure belongs to the owner of the land on which it exists. However, in many cases, this may not assist, as it may beg the question as to ownership of the underlying land.
A landowner is presumed to make a ditch at the extremity of his own land, by forming a bank on his own side with soil he excavates form the ditch. A hedge may be planted on top of the bank. Where two fields are separated by a hedge or bank and an artificial ditch, the presumption is that the boundary runs alongside of the ditch which is further from the hedge or bank.
This above presumption applies where the ditch is known to be artificial. It may be displaced by a clear description in the deed or by map showing that the line of the hedge is intended is the boundary line. The presumption does not apply when the ditch was made, while the lands were in common ownership.
Acts such as trimming the hedge or cleaning the ditch, will not of themselves rebut the presumption that the ditch and hedge belonged to the owner on the hedge side. Title to the ditch may be acquired by adverse possession in some cases, as where for example, where the ditch is filled.
Where lands are divided by two ditches on each side of a hedge or bank, by two hedges or banks on either side of a ditch, or by an old hedge or bank without ditches or by a ditch alone with no hedge or bank, there is no presumption as to ownership. The acts of ownership asserted and exercised in the particular case, will determine the position.
Where adjoining owners each exercise acts of ownership, and it is not known to what extent each contributed to the formation of the ditch or bank, it is presumed that the ditch or bank itself is a party boundary.
Similar general principles apply in relation to hedges and ditches along public highways, where the soil of the highway is not owned by the adjoining owner. The hedge and ditch is presumed to be owned by the landowner on the hedge side.
A ditch running along a highway between a road and fence may be deemed dedicated as part of the highway. However, presumptively a ditch which is not adopted for use for passing and re-passing by the public is not part of the highway.
Where land bounds a public highway or a private right of way, there are three presumptions which may be relevant. There is a presumption that a line drawn on the middle of the highway or private right of way is the boundary. Each owner is presumed to own the subsoil to the middle of the road, subject to the right of passage for the public or the more limited category who may enjoy the right of way.
It is presumed that the subsoil passes on conveyance, even though not mentioned. Even if the conveyance describes the land as “bounded by the highway” or if the plan excludes the highway, the presumption still applies. The court will not readily presume that the owner/grantor intended to retain the subsoil.
Where a highway is bounded on both sides by fences or hedges, it is presumed to extend to both such hedges or fences where it appears they were placed to separate the land from the highway. Where a highway is separated from land by a path or wayside strip, it is presumed that the highway extends over such strip, the subsoil being owned by the adjoining owner.
The boundary line between the seashore and adjoining land, in the absence of evidence of use to the contrary, is presumed to be along the line of the median height between ordinary spring and neap tide. It is possible for this line to shift. This presumption applies, whether or not the land is described by reference to a map or wording. It may be rebutted, where there are clear words and an intention otherwise expressed.
A lake entirely within land will pass with it. Where a lake is bounded by a number of different properties, it may be that one has the exclusive title or has acquired title by possession. There is no presumption regarding boundaries.
Where land is bounded by a non-tidal river or stream, whether or not navigable, the boundary is generally the midstream. In the absence of anything to the contrary, the bed of the river is presumed to belong to the adjoining owners to the middle of the stream. Where the presumption is rebutted and the adjoining owner or another is shown to be the owner of the riverbed, the boundary is along the relevant line, when the river is in its normal state, without reference to extraordinary flooding or drought.
The ownership of a fishery in a river, navigable or non-navigable, raises a presumption that the freehold is vested in the owner of the fishery.
In the case of tidal rivers, the soil between the medium high-water and the medium low-water presumptively belongs to the State. The boundary line between the bed of the tidal river and adjoining land is the line of the medium high-water. Generally, a tidal river is one where the water is subject to the tide, whether lateral or vertical.
An island in a tidal river will belong to the State, presumptively. In the case of a non-tidal river, it is presumed to belong to the owner of the land on the near side if entirely on the median line. If it bisects the median line, it is divided accordingly.
The extent of property may be increased by accretion or reduced by erosion. If by gradual and imperceptible accretion in the ordinary course of nature, land is added to the riverside, this belongs to the adjoining owner. This includes accretion caused by human intervention or natural causes.