By Hilary Palmer, Winckworth Sherwood, London


Boundary disputes

'It is sadly a commonplace that boundary disputes can be fought with a passion that seems out of all proportion to the importance of what is involved in practical terms'. So said Lord Justice Carnwath in Ali v Lane [2006] EWCA Civ 1532, [2007] 2 EG 126.



Often when boundary disputes reach the courts, the judge expresses surprise that the matter is being litigated at all. In Childs v Vernon; Vernon v Butcher [2007] EWCA Civ 305, the dispute between Mr Vernon and Mrs Butcher dealt in part with a lean-to erected by Mr Vernon, the wall of which encroached on Mrs Butcher's land by a mere 4mm.



The last few months have seen another series of boundary dispute cases being decided in the Court of Appeal. They go some way to explore the reasons for uncertainty over boundaries from which disputes arise, and the manner in which the courts will use other evidence to ascertain the correct boundary. Therefore, these cases are useful tools to assist a practitioner when advising clients on boundary issues.



Perhaps the main reason why boundary disputes arise is that all too often demarcation plans use the Ordnance Survey (OS) plan as their starting point. Willsher v Scott & Ors [2007] EWCA Civ 195 dealt once again with the question of the extent to which OS maps can be relied on when deciding the exact position of a boundary. Lord Justice Laws stated that OS plans offer 'an uncertain guide as to the precise boundary line'. This is because OS plans mark features such as hedges or fences rather than legal boundaries. Furthermore, the 1:2500 scale of OS plans means that the features drawn on them may be out by as much as 2.3 metres, far too wide a margin when a dispute can arise over millimetres. Lord Justice Cummin-Bruce expressed this more clearly in Scarfe v Adams [1981] 1 All ER 843: 'If a plan is intended to control the description, an Ordnance map on a scale of 1:2500 is worse than useless.'



The Land Registry has in the past relied on Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462 in that where the verbal description of land in a conveyance is inconclusive or inadequate, the registry will make reference to a plan even if it is marked 'for identification purposes only' as a means of determining the parties' intentions. This can mean that roughly drawn plans from old conveyances which were never intended at the time to indicate exact boundaries can, many years later, be utilised on a first registration, resulting in an incorrect boundary and possible litigation.



The 1:1250 scale of registry filed plans is also too small to deal with issues arising on boundaries, and in any event the 'general boundaries rule' (rule 278 of the Land Registration Rules 1925) means that the exact line of the boundary of a property will be left undetermined by the registry.



If OS plans, which often form the basis of conveyance plans, cannot be relied on, what other factors can be taken into consideration when deciding a boundary dispute? Certainly OS and title plans can be referred to, but practitioners should be wary of relying exclusively on them when advising clients as to the exact boundary of their land. Obtaining copies of the conveyances that formed the root of title on first registration can be helpful, particularly if the plans have measurements marked on them, or if the description of the land is clear from the deed. It is also necessary to obtain as much information as possible relating to the history of the boundary, and particularly any agreements reached between the owners and their predecessors in title, whether these have been evidenced in writing or not.



In Haycocks v Neville [2007] EWCA Civ 78, [2007] 12 EG 156, the original owners of properties on a development had been uncertain as to the exact demarcation line between their two properties owing to difficulties in interpreting the original conveyance plans. They jointly approached the developer's site manager and asked for a detailed plan to be drawn, marking the exact boundary. A plan, referred to as the Wykes plan, was prepared and agreed between the two owners. Eight years later, a new owner of one of the properties disputed the boundary and attempted to rely on the conveyance plan to establish the boundary line. The appeal court dismissed his claim and restated that it was permissible to use post-conveyance evidence where that evidence assists in establishing what the parties had intended. An agreement made between freehold owners as to the exact position of the boundary will be binding on future owners even if it is at odds with the conveyance plans.



Ali v Lane arose from what had initially been a claim for adverse possession that had failed and where no appeal was allowed. The court was then asked to decide which of three possible boundary lines was correct. The first possible boundary line was based on a 1947 conveyance, containing a plan with measurements shown on it. The second possible boundary line relied on a 1985 conveyance, containing a plan which was based on a 1979 OS map. The final boundary line relied on the actions of a predecessor in title of the property, which was the subject of the 1985 conveyance, including building a kennel block along the 'boundary' of the disputed land. This boundary was referred to in the case as the 'extrinsic evidence' boundary. The judge decided the correct line was shown in the 1947 conveyance interpreted by reference to later conveyances.



There was an appeal based on how the extrinsic evidence was considered. In dismissing it, Carnwath LJ commented on the relevance and scope of extrinsic evidence in the context of a boundary dispute. In particular, he observed that, in circumstances where there is ambiguity in a conveyance, it is permissible to look at extraneous evidence including evidence of subsequent conduct, subject to that evidence being of probative value in determining what the parties intended. In this case, the extrinsic evidence did not show what both parties had intended as there had been no agreement between the owners at the time.



What of an agreement made by a leaseholder? To return to Vernon v Butcher, Mr Vernon claimed that the lean-to which encroached on Mrs Butcher's land had been built in 1997 with the agreement of the previous owner, Mrs Webb. At the initial hearing, the judge decided that if there had been an agreement between Mr Vernon and Mrs Webb, it was irrelevant because at that time Mr Vernon had been an assured shorthold tenant and had no authority to make lasting changes to his landlord's boundary.



On appeal, Lord Justice Toulson cited authorities showing that when a tenant encroaches on a neighbour's land, he is presumed to act for the benefit of his landlord. Unfortunately for Mr Vernon, this was not enough to prove the boundary as the judges could not be certain that there was a true agreement between Mrs Webb and Mr Vernon, or if it were merely a case of Mrs Webb being unwilling to protest for fear of unpleasantness with a neighbour.



Perhaps the most important thing a practitioner can do with regard to boundary disputes is to try and prevent them arising. In practical terms, this means ensuring that in cases where there is likely to be any ambiguity whatsoever, the description of the property is detailed and accurate and, if a plan is to be relied on, it should be drawn clearly and to scale, and showing measurements as well as existing boundary features.