Thomson & Bancks’ Associate Solicitor, Sally McFadden has taken the time to write for our ongoing ‘You Matter To Us’ blog series, this time about the Property Boundaries and Resolution of Disputes Bill that is currently going through the House of Lords.
The Bill, which could be passed as early as later this year, speaks of the provision for the resolution of disputes concerning the location of boundaries and private rights of way. However, the cost of settling a boundary dispute through the court system could still cost several thousands of pounds in legal and surveyors’ fees and may often outweigh the value of the land being disputed.
As you will most likely remain neighbours for years it is better to try and reach an amicable resolution to the dispute before taking the matter to court. To do this, it is helpful to know your rights and responsibilities for the boundaries of your land.
Issues often arise around maintenance and repair as well as the precise boundary line and it is helpful to know both what your deeds say, and if they say nothing, then what the general legal ‘presumptions’ are.
The starting point for establishing a boundary is the title deeds. However, the boundaries shown on a plan give only a general indication, and often the deeds say nothing. If you see ‘T’ marks on the plan, then these point in the direction of the owner who has to maintain the wall, fence or hedge, whereas ‘H’ marks indicate a party wall.
For registered land, the Land Registry plan usually gives only a general indication of the boundaries. If there is no contrary information, various presumptions are used to help decide ownership, as follows:
When putting up a fence, the custom is that the posts are entirely on the owner’s land, with the face of the fence pointing to the neighbouring land and with larch lap fencing, where the panels sit between the posts, the entire post should fall within the owner’s boundary, with the top strip overlapping the lower strip on the face pointing towards the neighbouring land, however again, often fences are erected without the owner ever knowing about this custom!
If the deeds say nothing it is presumed that the boundary will be along the side of the wall furthest away from the garden of the owner who put it up, as the builder should have built it with its outer face on the limits of the land.
Hedge and Ditch
It is presumed that the boundary lies along the opposite edge of the ditch from the hedge or bank. However, this only applies to man-made ditches, and does not apply if the ditch is natural, or that it was made when the land on both sides was in common ownership.
The boundary of land beside a highway or private right of way is presumed to extend to the middle of the road or track (subject, always, to the rights of the highway authority). A conveyance or transfer of land alongside a road is presumed to include the road up to the middle of it (even if it describes the land as being ‘bounded by the road’, or includes a plan defining the land as excluding the road).
Non-tidal Rivers and Streams
The boundary is presumed to follow the centre line, so the boundary can change if the course of the stream changes naturally over a period of time. However, the position of the boundary does not change if the course of the stream is artificially altered or is changed by any sudden means which is not natural.
If the lake is entirely within the boundaries of single ownership the bed of a lake belongs to the owner of the surrounding land. Frustratingly, there are no presumptions where this is not the case and in such cases, it is necessary to rely on title documents etc.
The boundary of land adjoining the sea lies at the top of the foreshore (this is the land lying between the high and low watermarks of an ordinary tide between spring and neap tides) and is owned by the Crown unless it has been assigned to someone else. The same presumption applies to land that borders tidal rivers and inlets. The boundaries may move gradually as the high watermark moves naturally over time, but will not be affected by any sudden shift.
If you have a semi-detached or terraced property, this shared wall is known as a party wall and your neighbour’s agreement must be obtained before you start any work affecting the wall, works can include extensions, damp proofing and structural alterations.
Properties in your road may help you establish your boundaries as can looking at old town plans from when the property was built. Boundary issues are not always clear-cut as the boundary’s location can change over time for many reasons. Problems most often occur when someone new moves next door and takes issue with something previous occupants had put up with for years. As you will most likely remain neighbours for years it is better to try and reach an amicable resolution, rather than taking the matter to court and we suggest speaking to your neighbours to see what can be agreed.
You should also be aware that you have a responsibility to mention any neighbour dispute when you come to sell your property, this could put off potential buyers, if you fail to mention this, your buyer could have a claim and potentially take action against you for years after the sale. You cannot assume that once you’ve moved out, the problem has gone away if you haven’t told them!
Taking these matters into consideration, it is much better to try and have a conversation with your neighbour to see if you can reach an agreement. Once you have agreed the position in principal we can assist with putting together a written agreement setting out the agreed boundaries, maintenance and repair obligations. If at this stage you do not want to simply rely on the general boundary rules and would like the exact line of the boundary to be decided, then you can also apply to the Land Registry with your supporting evidence, again this may be best accomplished with our help.
Sally McFadden, Commercial Property Solicitor experienced in Landlord and Tenant matters, development projects and property matters for the care sector is dedicated to advising on Environmental Management and Renewable Energies for landowners.
Sally is happy to share her knowledge and findings with Thomson & Bancks’ clients and visitors to this blog, as she gains insight into commercial property legalities and developments and an Associate Member of IEMA (Institute of Environmental Management & Assessment).
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