There is an assumption in UK conveyancing that where boundary disputes do arise, the good old Ordnance Survey map will resolve the dispute. Domestic boundary disputes tend to be over very small pieces of land, sometimes too small for the largest scale Ordnance map to help. Often, the facts on the ground are inconsistent with what appears from the original plan. The fact that most property is now registered at the Land Registry carries matters no further, since the outline of the property itself depends on a line drawn on a plan.
To those affected, a boundary dispute can become all-consuming. Such battles rarely have commercial implications which equal their emotional content. Fortunes are spent on them.
Property buyers have other things on their minds at the moment. What will interest rates do? What effect will Home Information Packs have on the supply of properties? Is the long run of steadily increasing house prices about to tail off? Will there be enough cash left over once the Stamp Duty Land Tax is paid? What about local crime, hospitals, schools and all the other factors which inform house-buying decisions? Will the curtains fit? It would be easy to overlook the potential for arguments about boundaries.
There have been two recent cases on boundaries which should bring this back onto any property buyer’s check-list. The most recent is Haycocks v Neville [2007] EWCA Civ 78, [2007] 12 EG 156. This concerned a relatively new development. The original purchasers had asked the developer to draw up a plan to clarify the position because the conveyancing plan was unclear. A later purchaser sought to use the line shown in the original conveyancing plan which – he said – was in a different place.
If the position had been clear from the original conveyance, the original owners would presumably not have sought to clarify it. The court, and then the Court of Appeal, decided that extrinsic evidence – in this case the retrospective agreement made using the developer’s plan – was properly used to fix the boundary. In other words, the court did not attempt the task of trying to decide where the original conveyance had placed the boundary, but accepted the extrinsic evidence of the later agreement s being binding on the disputants.
Haycocks v Neville followed Ali v Lane [2006] EWCA Civ 1532, [2007] 2 EG 126 where the parties came up with three possible lines and asked the court to decide which was the right one. The judge chose one, in large part in reliance on evidence which was external to the actual conveyancing documents. The Court of Appeal considered the question of principle – the use of extrinsic evidence – and found this proper, subject to the usual tests as to the weight to be attached to any such evidence.
There is nothing ground-breaking in the idea that the court does the best it can with all the available evidence when the formal documents are unclear, but it is as well to be reminded that disputed situations can arise and that Ordnance Survey plans are not necessarily going to clarify the position beyond doubt.
The normal house-buying process these days does not generally involve a walk round the boundaries by your conveyancing solicitor. He or she might be able to query obvious ambiguities in the wording of the prior conveyancing documents or a patent lack of clarity in the plans. Enquiries made of the vendor might flush out a past history of disputes. The buyer’s surveyor is perhaps better placed to spot potential problems, since he does actually visit the property. Most such surveys, however, are limited in scope to questions of condition and value, and a prudent surveyor’s terms and conditions will exclude his liability for anything else.
The person best placed to spot the potential for a dispute is the buyer. The reference above to a “walk round the boundaries” may imply that it is only large properties which bring the potential for disputes. Many of the cases which come to court (or to blows) concern ordinary suburban gardens whose potential for argument lie concealed for years until one party takes a step – the erection of a fence or shed – which amounts to an assertion of a right.
If you need help with a boundary, whether you own the property already or are thinking of buying it, please contact Andrew Penfold on 020 7242 7000 or use the Contact Details on our web site.
