10 April, 2022 – 23:24
Homeowners warring about a tiny strip of land often feature in the media. Are owners and occupiers of commercial property above such squabbles? Human nature plays its part. Consider car parking spaces on business parks with no physical boundaries, writes Karin Horsley, Partner with Greenwoods GRM.
The title plan may clearly show the boundary line, but one owner’s employees or visitors may park in a neighbour’s spaces. So the neighbour paints a line marking their spaces, the adjoining owner erects posts and chains, the neighbour then erects lockable bollards. Each creates a marked boundary, but does it accord with the legal boundary?
‘Whose fence is it?’ ‘Am I responsible for repairing the wall?’ These questions about boundary features have been common following the damage caused by recent storms. Simple questions but often no simple answers. The answer may lie in establishing the ownership of the boundary itself.
What is a boundary?
It is a line dividing two adjoining pieces of land marking the extent of the land for which each landowner is responsible and over which they have rights. Seemingly straightforward but:-
- There might not be any physical or marked boundary.
- The physical boundary might not follow the same line as the legal boundary.
- Descriptions or plans in the deeds may not be accurate or precise.
How do you establish the boundary?
Check the title documents and plans first. Does the description of the property on the title or in the lease refer to a physical boundary feature or define its ownership?
What may limit the extent of the property? Consider flying freeholds or reserved mines and minerals. Does any part of the basement extend under a roadway?
Always look at other available documents. We reviewed a highway licence as part of our due diligence when instructed to buy a multimillion-pound investment property in the City of London.
The upper floors of the office block extended beyond the legal boundary which was the building’s ground floor footprint and over the pavement, part of the public highway.
The licence permitted the construction of the building but also allowed the highway authority to require removal of any parts of the building that extended beyond its legal boundary. If it exercised its right, only the central core, lifts and toilets of the building would remain. The client did not proceed.
What if descriptions in deeds conflict or are contradictory? If it is impossible to establish the intention of the original parties when the boundary was created, consider extrinsic evidence. Evidence might include:-
- Replies to pre-contract enquiries: which boundaries and fences has the seller maintained?
- Historic documents such as old tithe maps.
- Photographs or planning permissions.
Can a legal presumption help?
Legal presumptions can help in settling a boundary. They are not absolute and can be rebutted by other evidence. Presumptions include:-
- A person will construct a boundary feature, such as a fence, on their own land so supports for a wooden fence will be on the landowner’s property with the face of the fence on the boundary.
- The boundary of land adjoining a private roadway extends to the middle line of the road. This also applies to the subsoil of a public highways but the highway surface and airspace above it belong to the highways authority.
Surely the Land Registry title plan is evidence of the boundary?
No, it isn’t! Unless the boundaries are noted as having been fixed, the title plan only indicates the general boundaries. An application can be made to fix a boundary but is subject to formal Land Registry requirements and procedures.
Ascertaining boundaries and boundary issues are not straightforward. Matters such as party walls or discrepancies between deeds and plans are too large to cover in one article.
The best advice is to check your boundaries, if there is any doubt about ownership, reach an amicable agreement with your neighbour and avoid complex and costly disputes that may have no certain outcome.
The next storm this year will be Storm Gladys – discover which fence is yours in case she blows it over!
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