For the second article in our Real Estate Building Blocks series, we take a look at boundaries in the context of property transactions. We consider what boundaries are, their importance in every transaction involving the sale or leasing of property and what to do in the event that the location of a boundary is unclear.
What are boundaries?
The boundaries of a property are the dividing lines which separate that property from other property or land. There are two main categories of boundary, legal and physical. Legal boundaries are the invisible lines which divide one property from another and are identified in legal documents of title. Physical boundaries are tangible structures, and these can be naturally occurring (such as a river) or artificial (such as a wall).
Boundaries may also be vertical or horizontal. We usually think of boundaries as being vertical but horizontal boundaries can also have huge significance, for example, in the context of flying freeholds, rights to work mines and minerals beneath the surface of land, or in a leasehold context where the development of airspace is proposed.
The system of land registration in England and Wales is based upon the "General Boundaries Rule" which applies to registered property and provides that any title plan shall be deemed to indicate "general boundaries" only. The exact boundaries are left undetermined by the Land Registry unless an application is made for the boundary to be "fixed" (formally determined).
In the case of unregistered land, the location of a boundary is ascertained from the title deeds. If the position is still unclear, extrinsic evidence and inferences from topographical features may be considered.
Why are boundaries important?
Establishing the precise location of boundaries is an essential ingredient of understanding the scope and extent of rights which benefit, and liabilities which burden, the property.
In particular, a prospective buyer or tenant will want to:
- Establish who owns the boundaries in question and who is responsible for their maintenance. This is particularly important for developers who intend to carry out works to the property, for example, to demolish any existing boundary features.
- Establish whether there have been any encroachments (either by the current owner of the property onto adjacent land, or vice versa).
- Understand the extent of a tenant’s repairing responsibility, which will almost certainly be directly linked to the extent of the property let under a lease.
- Where buying let property, understand the extent of the property let under the lease/s to reveal whether there may be any potential development opportunities.
Steps to take when buying or letting a property
Identifying the exact position of a boundary can be a difficult and costly exercise and it is likely you will need specialist help. A solicitor will inspect the title deeds and documents and raise various searches and enquiries. An inspection of the property should also be carried out to flush out any discrepancies.
What if the boundary position is still unclear?
If there is ambiguity in the title documents, the parties can look to extrinsic evidence or to whether any common law presumptions will assist in identifying the likely location of the boundaries. This may include the consideration of ordinance survey maps, old sales details, inferences from topographical features or the so-called “hedge and ditch presumption” and even looking at Google Earth.
Potential solutions if ambiguity remains
There are options available where the boundary position remains unclear or cannot be agreed such as:
- Transfer of land between adjoining owners to regularise the position, if agreed
- Statutory declaration as to the position of a boundary
- Application to the Land Registry to alter the position of a boundary or correct an error in a document or plan
- Boundary agreement with adjoining owner
This is not intended to be a comprehensive analysis of the law surrounding boundaries. If you require any further information, please contact our real estate team.