There are two types of boundary in land ownership – a legal boundary and a physical boundary. The legal boundary separates one person’s land from another person’s but will often not be identified with precision, either on the ground or in the deeds. The physical boundary is shown by a physical feature on the ground, such as a wall or a fence, and will not always follow exactly the same line as the legal boundary.

In registered land, the boundaries of a property shown on the filed plan are not necessarily conclusive. Most filed plans are deemed to indicate the general boundaries only. This means that the exact line of the boundary will be left undetermined – for instance, whether it includes a hedge, wall or ditch, or runs along the centre of a wall or fence, or whether or not the land registered includes the whole or any portion of an adjoining road or stream (rule 278 Land Registration Rules 1925 (LRR 1925)). This is known as the ‘general boundaries rule’.

Fixing the boundaries

There is a procedure to fix the boundaries with precision. Notice is served on all the owners and occupiers of the adjoining land, then there is an examination of all relevant titles and a survey. The precise legal boundaries are identified and National Grid co-ordinates calculated – this information is then added to the title plan. Once a note has been made in the property register that a boundary has been fixed, the filed plan is deemed to define accurately the boundary (rule 277 LRR 1925).

Reasons for the rule

The reason for the general boundaries rule is to avoid boundary disputes. In many cases where a precise boundary line is obscure, the buyer is content to take the property as the seller had it and to let the question of the boundary lie dormant. To compel people to define the boundary would require the involvement of adjoining owners and occupiers, which might create a dispute where none would otherwise exist.

The Court of Appeal was asked to determine the legal boundary between two properties in the case of Konstantinidis v Townsend [2003].

The facts

The claimant and the defendant owned neighbouring properties, the defendent’s land lying to the east of the claimant’s land. Some time previously, both properties had been contained within one title. The claimant’s property was conveyed to a third party before being conveyed to the claimant. The claimant’s property had been registered following that first conveyance.

At the time of the first conveyance, a line of posts ran to the east of the claimant’s property, between it and the defendant’s property. The defendant later built a wall further to the east of the line of posts. Following a dispute between the third party who then owned the claimant’s land and the defendant, a court ordered that the northern boundary of the claimant’s property ran along a line ending at the wall constructed by the defendant. A dispute then arose between the claimant and the defendant over the eastern boundary of the claimant’s property.

The judge at first instance held that the wall represented the eastern boundary of the claimant’s property – because a number of individuals were of the view that this was where the boundary lay, and because the judge considered that the defendant would only have built a wall along what he believed to be the boundary.

On appeal

The Court of Appeal disagreed. The judge at first instance had been wrong to take account of where individuals felt the boundary lay. This was irrelevant. It was necessary to consider where the eastern boundary lay on a proper construction of the first conveyance. The property register of the register of title for the claimant’s land was the best evidence of what had been conveyed by the first conveyance but, due to the general boundaries rule, the filed plan was not precise as to the boundary. Therefore, it was necessary to ascertain what features on the ground, at the time of the first conveyance, were capable of indicating the boundary. The only feature at that time had been the line of posts. The court therefore held that the eastern boundary of the claimant’s land ran from the line of posts in the south to the wall in the north (because the earlier court order had determined the eastern end of the northern boundary).

Comment

The Land Registration Act 2002

The Land Registration Act 2002 (the LRA 2002), which is expected to come into force on 13 October 2003, preserves the general boundaries rule.

Section 60 of the LRA 2002 provides that a boundary of a registered estate, as shown for the purposes of the register, is a general boundary unless it is shown as having been determined. Section 60 also provides that a general boundary does not determine the exact line of a boundary. The provisions enabling the exact line of the boundary of a registered estate to be determined are contained in the Land Registration Rules 2002 (the LRR 2002).

Rule 118 of the LRR 2002 permits the proprietor of a registered estate to apply to the registrar for the exact line of the boundary of the registered estate to be determined. The registrar must then give the owners of the land adjoining the boundary to be determined notice of the application. They then have an opportunity to object. If there are no objections the boundary will be determined.

Implications for adverse possession

The procedure to fix boundaries under the LRR 1925 has seldom been used in the past, due to the expense involved and the possibility that it will trigger a boundary dispute. However, greater use may be made of the power under the LRA 2002 because it can make it more difficult for a squatter to acquire title by adverse possession.

Under the LRA 2002, a squatter can apply to be registered as the owner after ten years’ adverse possession, but the registered owner then has two years to recover possession or to grant the squatter a lease or a licence. There are three situations when the registered owner will not have two years to regularise the position and the squatter can be registered as the owner after ten years’ adverse possession. One of these situations is when a neighbour is in adverse possession of land adjoining the boundary of their property, and the neighbour reasonably believes that they own it. However, a neighbour cannot take advantage of this provision if the boundary between the two properties has been fixed.

The Standard Commercial Property Conditions

It is worth noting that the general boundaries rule is not confined to registered conveyancing. For example, the Standard Commercial Property Conditions (condition 4.3.1) absolve a seller from proving the exact boundaries – and the ownership of fences, ditches, hedges or walls – further than they may be able to do from information in their possession.

The general boundaries rule: presumptions to determine ownership

Where the general boundaries rule applies and in the absence of any rebutting information, various legal presumptions may be applied to determine the extent of ownership.

Roadways

It is presumed that the boundary of land abutting a highway or private right of way extends to the middle of the way, subject, in the case of a highway, to the rights of the highway authority.

A conveyance or transfer of land that abuts a roadway is presumed to include the roadway up to the middle of it, even though it describes the land as being bounded by the roadway or includes a plan defining the land as excluding the roadway.

Hedge and ditch

Where two properties are divided by a hedge or a bank and ditch, there is a presumption that the boundary is along the opposite edge of the ditch from the hedge or bank. This only applies to man-made ditches and does not apply if it can be established that the ditch was natural, or that the boundary feature was made while the land on both sides was in common ownership.

Non-tidal rivers and streams

The boundary between properties abutting a natural non-tidal river or stream is presumed to follow the centre line, and the boundary changes if the course of the stream changes naturally over a period of time. The position of the boundary does not change if the course of the stream is artificially altered or is changed by any sudden means whether or not it is natural.

Lakes

The bed of a lake belongs to the owner of the surrounding land if the lake is entirely within the boundaries of a single ownership. Otherwise there is no presumption.

Sea-shore

The boundary of the land adjoining the sea lies at the top of the foreshore, which is the land lying between the high and low water marks of an ordinary tide between spring and neap tides. The foreshore is owned by the Crown unless it has been demised or granted. The same presumption applies to land that borders tidal rivers and inlets. The boundaries may move gradually as the high water mark moves naturally over time, but will not be affected by any sudden shift.

Case reference

Konstantinidis v Townsend [2003] All ER (D) 316 (Mar)

Jennifer Shilton is a professional support lawyer in the real estate group at Allen & Overy.  © Property Law Journal