The primary evidence of boundaries is the parties’ title deeds. The interpretation of the deeds is a matter for the courts. Where the extent of the property and boundaries cannot be clearly identified, external evidence may be admitted. Presumptions may assist.
Descriptions in deeds will commonly refer to known physical and natural boundary objects, expressly or impliedly. They will most commonly comprise walls, fences, or other artificial divisions. It will be necessary to consider the physical boundary features, as they existed at the time of the relevant deed.
Where there are inconsistencies in the description, the interpretation and description that is consistent with the area or quantity intended to be included, is likely to be preferred.
The general principle is that extrinsic (external) evidence is not admissible, in order to vary or contradict a deed. It may be admitted in order to give the court an insight into the subject matter of the deed as understood from materials available to the parties at the time of its execution. It is admissible where the deed is contradictory, uncertain, or ambiguous.
The ambiguity may be apparent in the face of the deed or may be apparent only upon application of the description to the facts as exist on the ground. The courts will admit evidence as to boundary divisions as they existed on the ground and which were intended to be referred to or adopted.
Where the extent of the land included is ambiguous, regard may be had to the later occupation to clarify the position. However, no amount of later use will prevail over clear words. Where the position is clear and unambiguous, it will be given effect.
In some cases, evidence of reputation may be admissible in relation to the interpretation of deeds and documents. The principle is an exception to the common law hearsay rule. Evidence of reputation or family tradition is admissible for the purpose of proving or disproving the existence of public or general rights only.
Evidence of reputation is not admitted in relation to private rights. It is not admissible in relation to the boundaries of two private properties, except where they coincide with public boundaries. Evidence of reputation in relation to particular facts, as opposed to general rights, is not permitted.
Certain classes of evidence are admissible as evidence in boundary disputes, in accordance with the longstanding exceptions to the hearsay evidence rule. In particular,
- admissions against a party’s interests;
- declarations by diseased persons against their financial or proprietary interests;
- declarations made in the course of a business or duty of facts within one’s knowledge; and
- declarations of public or general rights by deceased persons
are admissible by way of exceptions to the common law rule.
Statements in public documents may be admissible as evidence of the facts recorded. Statutory surveys and inquisitions may be admissible as evidence of the extent of boundaries. Private surveys and those not made under proper authority are inadmissible.
Documents less than 20 (15) years old, produced from proper custody are presumptively valid.
Maps and plans in themselves are not admissible as evidence in relation to disputes in relation to legal boundary lines. However, they may be relevant to proving the location of physical boundaries as part of records compiled by a person acting under a duty, as admissions or under one of the other exceptions above.
Evidence of acts of ownership is admissible in relation to title. However, acts such as clipping trees or hedges, cleaning a ditch, although admissible, are not conclusive in relation to title.
Boundary Features and Party Walls
A tree is presumed to belong to the owner of the land on which it is planted. Where ownership is in issue, the lopping and topping of trees may be evidence of ownership. Where a tree is planted on the boundary, which later extends its roots over the boundary, it is presumed to continue to belong to the person who planted it.
This is so notwithstanding that the branches and roots extend into adjoining property. The lopping of a tree on one’s land is not proof of ownership and may be explained by the exercise of a common law right.
Fences may be used to mark boundaries.
The expression “party wall” is used in different senses. It may refer to a wall divided vertically into two strips one belonging to each owner. It may refer to a wall belonging to one owner only with an easement in favour of the other. It may refer to a wall divided into two halves vertically each subject to cross easements.
The most common meaning is a wall where the adjoining owners are tenants in common. The presumption is that the adjoining owner are co-owners of the wall, in the absence of evidence that the party wall constitutes another type or category. This applies in the absence of anything to the contrary. The common use by adjoining owners of a party wall, separating their properties is presumptive evidence that it is held by them as tenants in common.
Rights of Party Wall Owners
The rights of adjoining owners depend on the nature of the party wall. Where the wall is owned by one, subject to easements for the other, the terms of that easement must be respected. Subject to the easement enjoyed by the other, the owning party may deal with the wall as he wishes.
The same principle applies where the wall is subject to reciprocal easements, the same principle applies. There may be mutual easements of support. The mutual easements will be such as carry out the common intention of the parties in relation to the use of the wall. The precise rights will depend on the circumstances.
Each party may use the wall for the contemplated purpose. Provided that this is done without negligence, there is no liability for nuisance.
Each party is entitled at his own expense to repair the other half of the wall as well as his own, to the extent necessary to preserve his easement. This right to repair does not relieve him of the risk of liability in negligence or nuisance if he is in default.
The common law position is now subject to the terms of the party wall legislation in the Land and Conveyancing Law Reform Act.
Where the party wall is held in common, each is entitled to the use of and support for the wall, with mutual rights to prevent its destruction. The traditional rule is that one tenant or owner may not maintain trespass against the other for injury done to the wall unless there is a complete “ouster” or partial or total destruction of the property which is owned in common. A demolition or alteration of the party may constitute an ouster or denial of his rights as co-owner
The demolition of the whole wall for the purpose of replacement with a better wall is not such destruction as will enable a tenant to maintain trespass. The demolishing owner must exercise reasonable care and skill and must carry out the work without delay. Neither owner may underpin the wall, unless this may be done without injury to the other.
There is no obligation on party wall owners as such, to repair. However, if by neglect or failure, the wall becomes a nuisance, an obligation to repair may effectively arise. At common law, a person undertaking work to abate a nuisance may be able to recover the costs of the work from the party in default. Under the new party wall legislation, an equitable contribution may be sought.
The common law rule was that one co-owner could do anything short of ousting the other co-owner. Party wall owners are not liable in trespass to each other. Each is the owner so that what would otherwise constitute trespass may be done by each co-owner. Where the actions of one party owner are such as to oust or destroy the effective benefit of the wall for the other, he is liable to that other
In determining a boundary dispute, the court will have regard to the physical features on the ground, and as they stand in relation to the wording of the relevant deed.
Where a party wall is owned in common with mutual rights of support, then neither may pull it down. In this case, each may not knock down his longitudinal half without the consent of the other as it will undermine the easement of support vested in that owner.
The grant of planning permission does not grant a proprietary right. Although the applicant must have an interest in the land concerned. The planning authority does not determine ownership of land, party walls or boundary.
The Land Conveyancing Law Reform Act 2009 provides a procedure for works to or near party walls.
Old Statutory Procedure
The Dublin Corporation Act 1890 and certain other local acts made provision in relation to party structures. It applies only to the local authority areas where such acts apply. It gives the landowner the right to enter the property of an adjoining owner to carry out works and repair to the party wall. The person intending to do works is given the right to make good or repair any party structure which is defective or in a state of disrepair.
The adjoining owner may pull down and rebuild any party structure, which is so defective that it makes it necessary or desirable to pull it down. He may replace a party structure which is of insufficient strength for a building which is intended to be built, with a wall of sufficient strength for such purpose. The adjoining owner has the right to cut away and remove any part of the wall which overhangs his ground in order to erect an upright wall.
Before exercising such rights, the building owner must give at least three months’ notice to the adjoining owner of his intention to commence work. If within 14 days the adjoining owner refuses to give consent, he is deemed to have refused consent and a dispute is deemed to have arisen.
A dispute is referred to arbitration by an agreed arbitrator. If they do not agree, it may be referred to three arbitrators, the third arbitrator being appointed by both arbitrators (each appointed by either party). When the arbitrators make an award, the building owner is entitled to enter the premises in accordance with it. Obstruction is an offence.
Right of Support
Similar to the easement of support is a natural right of support of land. This right of support is enjoyed by adjoining owners and inheres in the interest in the land itself. It is not an easement.
The natural right of support relates only to land in its natural state. Accommodation for buildings or other artificial structures requires an easement by implication, prescription or grant. The easement of support arises automatically. It is not extinguished by union in a single owner.
Landowners have rights to both lateral and adjacent support and to horizontal and subjacent support. The right is to support of the land at its natural level.
The right of support of land commonly arises in the context of works at or near a boundary. The right of support is not an easement but is as a “natural” right. The right of the neighbour places an obligation on the adjoining owner to forbear from doing that which interferes with the support provided to the neighbour’s property. He may replace the original means of support, provided that no damage is done to the adjoining property.
Where a person causes his neighbour’s land to subside by excavating at the boundary, he is liable for the damage caused. Even if the owner has a right to mine, he may not remove the support afforded unless expressly permitted by statute.
The natural right of support continues when buildings are erected on the land. However, this does not increase the burden on the neighbouring owner. Strictly speaking, there is no infringement of the right, if the right of support is removed which damages a building or house but would not have damaged land in its natural state. However, the right of support for the building may subsist by an easement.
Easements of supports are expressly granted in the context of apartments and other multi-unit developments. Even if not granted, they are likely to arise by implication. This may occur where a semi-detached house or terraced house is conveyed. In this case, the right of support will generally subsist by an implied easement or an easement of necessity.
An easement of support can be acquired by the buildings being in situ for the requisite period. However, the owner affected must know that his property is affording support to the other. This arises from basic principles regarding the acquisition of the easement. The adjoining owner must know that there is an exercise of rights affecting his property, to which he does not object for the requisite period.
The subsidence need not necessarily be the result of works on the adjoining land. It may be a consequence of work on land adjoining that latter land.
Boundary Buildings and Repair
Buildings are commonly supported by other buildings, particularly in the case of terraced or semi-detached properties. If an adjoining owner alters or removes his building, he must shore up the other adjoining property so as the ensure that is not damaged or affected.
The traditional rule was that neither party was inherently obliged to repair his property. The fact that the adjoining owner lets his property fall into decay and ruin does not constitute a breach of the easement. An easement of support protects against the removal of support without substitution of equivalent support. This arises from the reluctance of courts to impose easements with positive obligations.
If an adjoining owner lets his property fall into decay, the owner with the right of support may be entitled to enter to abate the damage. There have been suggestions that the law of negligence may be such that an adjoining owner may not let his house fall derelict to the detriment of his neighbour. The courts may impose a duty of care arising from their physical proximity.
There is no inherent easement for protection against the wind and weather. Where a party exposes his neighbour to damp, rot and wet penetration, then traditionally he has no liability for loss incurred. An easement of support may contain an element of protection against wind or weather.