Boundary Descriptions

Jon Maynard Boundaries Ltd, Boundary Demarcation and Disputes, Rights of Way, Expert Witness, Chartered Land Surveyor

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Boundary Descriptions

 You are here:    Boundary Problems  |  Legal Background  |  Boundary Definitions of Registered and Unregistered Land
Historical Context
Making and Defining New Boundaries
Typical Boundary Descriptions
Boundaries of Unregistered Land
Boundaries of Registered Land
Comparing boundaries with your neighbour
Common shortcomings in boundary descriptions
Complications in interpreting boundaries from the title deeds


" ... we are marching slowly but surely towards a situation
in which no vendor will be able to tell prospective purchasers
the exact location of the boundaries of the land that is offered for sale. "

 

Historical Context

In England and Wales the government has no responsibility for describing newly created boundaries. This situation stems from the fact that all of the land in the country is already considered to be in private ownership (even if some of those "private owners" are government departments or local government entities).

Thus central government has no role in distributing land, does not create new boundaries, and has no role to play in describing new boundaries.

A new boundary is made when a landowner decides to divide his land and sell off the divided part or parts of his land. It is the landowner who sells a part of his land who decides where any new boundary will be located. It is presumably this same landowner who is responsible for describing the new boundaries he has created.

Before mapping was available, boundaries were described in words using the metes and bounds method.

Large scale mapping of extensive areas of England and Wales first became available following the Tithe Commutation Act 1836. . These tithe maps were surveyed between 1836 and 1841 and published by 1851 and were in essence a graphic to accompany a list of all of the landowners in each parish who were liable to payment of tithes. The maps were soon put to alternative uses, including incorporation into a conveyance deed as a means of describing the boundaries of land being sold.

In 1841 Ordnance Survey was given the go-ahead to map most of England, Wales and Scotland at a scale of 1: 2500, and to map the mountainous areas at 1:10,560 (Six Inch) scale. The Ordnance Survey Act 1841 gave them the authority to do this. The Act also made it clear that the maps would not define property boundaries nor have any effect on the ownership of or interests in land. Whether or not the 1841 Act's separation between land ownership and Ordnance Survey mapping was a backlash against the tithe maps, the practice of using available mapping as a means of describing property boundaries in deeds of conveyance continued but now using the Ordnance Survey mapping. Presumably those who used the Ordnance Survey maps for conveyancing purposes had never read Section 12 of the Ordnance Survey Act 1841.

One consequence of using maps to describe boundaries is that the metes and bounds system generally fell out of use, at least in England and Wales although there is a tendency for its use to continue in Scotland. Why describe the 'bounds' (the physical feature that the boundary followed) when there was a line on the map depicting it?

All of the above relates to unregistered land. Land Registry was founded in 1862 with the aim of assembling a register of titles to land through a process of voluntary applications by land owners. Difficulties were encountered from the start because the boundary description methods outlined above were at odds with Land Registry's requirement for property boundaries to be defined precisely. In 1875 the concept of the general position of the boundary was introduced. The Land Transfer Act 1897 prescribed that "the Ordnance map, on the largest scale published, shall be the basis of all registered descriptions of land". You can follow this link to read more about the early history of Land Registration in England Wales.

If the only boundary description available to you is a Land Registry title plan then you must bear in mind that:

  • by law it shows only the general position of the boundary;
  • by law it is based on the Ordnance Survey map;
  • by law the Ordnance Survey map does not define property boundaries;
  • in practice there are accuracy limitations to Ordnance survey maps, and issues of map interpretation, that make them unsuitable as a basis for determining the exact line of a boundary.

 

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Making and Describing New Boundaries

Having reviewed the development of the methods for describing new boundaries it is appropriate to consider the circumstances in which new boundaries arise. Different methods of boundary creation may produce different types of boundary description.

New boundaries are usually formed using one of four methods:

  • Building Plots
    Single building plots are offered to individual purchasers by an owner with a large area of undeveloped land that has road access. This practice was in common use between the 1890's and 1930's. Each plot is described as having a road frontage of a particular width and a depth back from the road of a particular length. There is no indication of whether the plot of land is a rectangle, a parallelogram, but if it is of some other shape this will be evident from the dimensions given. The purchaser is required, through restrictive covenants written into the Indenture or Conveyance, to erect fences along certain of the boundaries of the plot he buys.

  • Development Land
    A large area is sold to a single developer. This large area may, for example, be an entire field divided from a farm. The position of the new boundary may appear to be obvious from the Ordnance Survey mapping - one or more field boundaries found on the Ordnance Survey map. Reference to a particular field number found on the Ordnance Survey map was a common way of describing the land sold, with the boundaries being identified by implication as the lines surrounding that field number. But those lines represent physical features, not property boundaries.

  • Creating individual property boundaries within development land
    The developer is then free to divide the land as he sees fit, e.g. by building houses upon it and separating the gardens of those houses from each other with fences. This practice has been in common use since the 1960's. The boundaries of each plot are usually described by reference to a plan of the development, usually at a larger scale than is used by the Ordnance Survey map. This larger scale permits greater accuracy, and this is presumed to be sufficient for no dimensions to be needed in support of the plan. All too often this plan is a plan of the design rather than a plan of what was actually built.

  • Small changes to land already built upon
    a)   A small area is transferred from one garden to an adjoining garden, to provide sufficient space in the purchaser's garden to, for example, build an extension or a garage, or
    b)   a single building plot is divided off from a field or from a property with a large garden.
    -   In either case, such small portions of land are usually described with reasonable accuracy. However, unless the vendor (seller or transferor) marks the boundary physically then there may be scope for later dispute as to the position of the boundary.

The end result of each method is a conveyance plan that will be referenced from the parcels clause of the conveyance, that may or may not result in the presence of dimensions stated either on the plan or in the conveyance or both.

The above four methods of new boundary creation are described in relation to unregistered land. New boundary creation now occurs by division of registered land. The first of the above methods is unlikely to be used in the modern era, but the other three are all likely to be used. The result of each is a transfer plan that will be attached to a Transfer of Part deed (often known as a TP1). The only real difference that results from dividing registered land is the requirement for the transfer plan to be reconcilable with the Ordnance Survey map for land registration purposes (i.e. to assist Land Registry in drawing up a title plan).

 

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Below is an extract from a conveyance plan dating from 1910 relating to the first building plot in a row of nine such buildings plots. This is an example of the first method (described above) of new boundary formation. The quality of the boundary descriptions for individual properties will depend both on the ability of the vendor to describe the boundary accurately and on the purchaser's ability to place his fences accurately.

Extensive land sold in 1910 as a series of building plots

The photograph below was taken in 2005 during the construction of a housing estate and is an example of the third method (described above) of new boundary formation. The quality of the boundary descriptions for individual properties will depend on whether the transfer plans are based upon surveys of what was actually built or upon design plans.

It is the developer who decides where the boundaries around each new house will be, Newark, 2005.

How are boundaries described? In England & Wales there is no legal specification for where boundaries must run. So some boundaries run along the centre of a river, whilst others run along a river bank. Again, some boundaries run along the centre of a road whilst others run along the edge of the road. Some boundaries will run along the face of a building whilst others will run at an unspecified distance from the face of a building. Some boundaries will be marked by a fence or a wall: some such walls, and even fences, may be party structures (standing astride the boundary) whilst others will belong to one property only (standing with the boundary running along its outer face). Other boundaries will run parallel to a hedge, perhaps - but not necessarily - according to the hedge-and-ditch principle.

The only boundary that may be related with some certainty, but not with absolute certainty, to a physical feature is the boundary running along the centre of the party wall that joins two dwellings to each other in terraced or semi-detached houses.

It is dangerous to assume that the boundary runs along a median line between two houses that are not attached to each other.

In some countries the law requires that the corner points of plots, and any turning points along the boundaries of those plots of land, be "monumented" with an approved marker to permanently and unambiguously demonstrate the positions of the boundaries. In England & Wales there is no such legal requirement.

 

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Typical Boundary Descriptions

In England & Wales, with the exception of those boundaries that are registered under an Exact Line of Boundary: Registration application, the standards of boundary descriptions are particularly lax.

Traditionally, the description of the boundaries is found in the parcels clause of the earliest conveyance relating to the parcel of land. These deeds never tell us who was responsible for writing the parcels clause. We know that the vendor was responsible for deciding where the boundary would be, but was it he who wrote the parcels clause and drew the conveyance plan, was it the estate agent who was selling the land for him, or was it the solicitor who did the conveyancing? We simply don't know who wrote the description found in the parcels clause.

Examples of boundaries descriptions in the parcels clause range from the likes of:

  • "ALL THAT piece or parcel of land in the parish of Little Sniggering in the County of Midhamptonshire together with the dwelling thereon known as Magpie Cottage ... "
    which contains enough information to enable us to locate the property but not enough information to locate its boundaries;
    to:
  • " ... Magpie Cottage having a frontage to Mill Street of thirty seven feet and a depth therefom of ninety five feet ... "
    which, although it gives us a general size for the plot of land does not tell us the shape of the land (rectangle, parallelogram, or some other quadrilateral), nor does it tell us what physical features mark the boundaries nor how far each of those boundaries is from the nearest side of the house;
    to:
  • a series of conveyances for detached properties with large gardens in a small town in Scotland where the parcels clause for each ran to a couple of pages because it described each boundary by the side of the land it occupied, the physical feature (wall, fence, hedge, etc) that it followed, the distance for which it followed that feature, and its junction with the next stretch of the boundary, i.e. each property had a metes and bounds description as well as a conveyance plan (with apologies to readers in Scotland where the title deed that records the sale is known as a 'disponement' rather than a 'conveyance').

It was normal practice, presumably to protect the vendor against any accusation that he had misrepresented the land he was selling, to remove any implication of precision in the description by either prefixing each dimension with the word "about" or suffixing it with the phrase "or thereabouts" or even with "be it a little more or less". So anyone who today owns a 100-year-old house and thinks that he can ascertain from such dimensions the position of his boundaries to the nearest inch is simply deluding himself.

In many old conveyances the parcels clause is often expanded by reference to the plan attached. If a picture paints a thousand words then a plan is capable of conveying information about the boundaries far more concisely than is possible than with the words used in the parcels clause. However, the quality of the plan that was either "attached to" a conveyance or "drawn hereon" usually left a great deal to be desired. An inaccurate tracing made from an Ordnance Survey map was quite common, as was a simple sketch map. Neither is capable of telling you exactly where the boundaries are.

Sketch plan from 1925 conveyance is of uncertain accuracy.   1956 conveyance plan for the same property is an inaccurate tracing from an Ordnance Survey map.
The plan to the 1925 conveyance (left) is a sketch map of questionable accuracy whilst its 1956 counterpart (above) is an inaccurate tracing made of an Ordnance Survey map.

Sometimes the parcels clause tells us that the land is "for the purposes of identification only shown in the plan attached ... ". This suggests that you should not attempt to locate the boundaries by means of the plan. At other times the land is "more particularly delineated on the plan ...", which would be really useful if only the plan was accurate. Other conveyances tell us that the land is "for the purposes of identification only more particularly delineated on ...", which is an example of the parcels clause contradicting itself and leaves us wondering whether the person who wrote the parcels clause had any idea how to describe boundaries at all !

In modern times, shall we say since 1960, it has been more common for the conveyance plan to be based on the developer's plan of the housing estate. The developer's plan is essentially the architect's design drawing for the development. Its accuracy is entirely based on the ability of the builders to construct things in exactly the positions specified by the architect. If they failed to do so then the developer's plan - and the conveyance plan based upon it - is reduced to a fiction and will mislead the unwary.

 

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Boundaries of Unregistered Land

As of 2009, about 30% of the land in England and Wales is not yet registered. If you own unregistered land and need to find out where your boundaries are then you will have to consult your title deeds. (If you are still in the process of buying your house with a mortgage then you will have to ask your mortgage lender to supply you with a copy of the title deeds. If you have paid off the mortgage then the title deeds will be wherever you placed them for safe keeping, e.g. at your bank or your solicitor's offices.) You will be looking specifically for the earliest conveyance deed (in the nineteenth century it may have been called an Indenture of Conveyance) and it may have been handwritten or typed (like the example below).

Picture of the first paragraph of a Conveyance Deed

If you are in the process of buying your home with a mortgage then you will probably never have seen your title deeds as they will be held by your mortgage lender as security against the mortgage loan. Your mortgage lender will be happy to supply you with a copy of the title deeds but will charge you a fee.

BOUNDARY IDENTIFICATION: Once you have the earliest Deed of Conveyance relating to the land on which your house stands then you need to locate the Parcels Clause. This usually follows a more or less standard form of words such as: "now this deed hereby conveys ALL THAT piece or parcel of land in the parish of ... having a frontage to the ... Road of ... feet or thereabouts and a depth of ... feet or thereabouts as the same is for the purposes of identification only edged in red on the plan attached hereto".

You must take great care in interpreting this information. The use of the words "or thereabouts" and the fact that the plan is "for identification purposes only" warn you that the measurements are not precise. Further, there is no identification of the features that may have marked the boundaries that were present at the date of that conveyance. Even if the parcel of land is "more particularly delineated on the plan" you must consider how to interpret the lines on the plan and how to relate these to the features now present on the ground.

 

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Boundaries of Registered Land

If you own the registered title to the land on which your house stands then you will presumably have a copy of the register entry and of the title plan. There was a time when Land Registry would bind these into a Land Certificate, perhaps together with a copy of the conveyance that defines the boundaries of the land. If for some reason you do not have the Land Certificate nor the 'register and plan' then you can request an Official Copy of the register and plan from Land Registry, who will charge a small fee.

BOUNDARY IDENTIFICATION: It is tempting - but quite wrong - to try and identify from your title plan the positions of your boundaries by scaling their distance from other map detail. This is because, under Section 60 of the Land Registration Act 2002, the title plan shows only the general positions of the boundaries, not their exact positions - refer to Section 60 of the Land Registration Act 2002. Moreover the map on which the general boundaries are shown is an Ordnance Survey map which is prevented by Section 12 of the Ordnance Survey Act 1841 from showing property boundaries and is in any case incapable because of its scale and its accuracy limitations of showing the position of anything to the nearest inch (or rather, to the nearest 25 mm). You should ignore the general boundaries shown on the title plan and refer to the original conveyance that describes your parcel of land. This conveyance is sometimes referred to as the pre-registration title deed. You will again be looking at the conveyance for the parcels clause and at the accompanying conveyance plan.

If the land was registered before your house was built, then there will be no conveyance but instead there will be a transfer deed (a Transfer of Part or TP1). This transfer deed will usually include a transfer plan, and this plan may be based upon the architect's design plan for the development of which your house was a part. Alternatively, the transfer plan may be based on the Ordnance Survey map because of the requirement for the plan to be reconcilable to the Ordnance Survey map for title plan production purposes.

General boundaries are discussed further on the Understanding General Boundaries page of this web site.

 

Comparing boundaries with your neighbour

Once you have ascertained from your title deeds the position of your boundary you should compare notes with your neighbour. You cannot assume that his or her title deeds will put the boundary in the same place as yours do, although in principle the two deeds should be describing the same boundary.

AGREED BOUNDARY: If, between you, you cannot decide, from the deeds, where the boundary goes then you would be well advised to agree with each other that the deeds are unclear as to the position of your common boundary. Such a conclusion is actually helpful to you both. This is because the law allows adjoining neighbours to decide between themselves - for the purpose of clarifying the ambiguous description in the deeds - exactly where the boundary runs.

Such a boundary agreement may be recorded in the form of an annotated plan, complete with a suitable memorandum that is signed by the owners of the land on each side of the boundary. Application may then be made to Land Registry for the boundary agreement to be noted on the register for each property (but if either property is not registered then the agreement should instead be kept with the title deeds).

If you want the boundary that you have agreed with your neighbour to be defined to a high level of accuracy then you will need to instruct a chartered land surveyor who is familiar with Land Registry's exacting requirements to prepare an accurate plan and a precise description of the boundary in support of your Application to Land Registry to Determine the Exact Line of the Boundary.

 

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Common shortcomings in boundary descriptions

There was a time when property boundaries in England were described using the metes and bounds system. I have seen the system still in use in parts of Scotland. The metes and bounds system fell out of use when maps became available and were used as a basis for describing boundaries.

1.   Thus, the first common shortcoming in boundary descriptions is a failure to describe what physical features mark the boundaries. If the conveyance plan (or the transfer plan) shows that the boundary follows a linear feature, and if there is no description of what that line on the plan represents, then you will not know whether, for example, the boundary is related to the hedge that you see there now or whether the line on the plan was referring to a fence that once marked the boundary but was left to rot away after the hedge was later planted. If the hedge had been planted at any distance up to 3 feet (0.9 m) away from fence, then the distance is too small for you to discern from a 1:2500 scale plan whether the line is or is not consistent with the centre of the hedge that you now see. If a simple description - even the single word fence (or hedge, as appropriate) - was used to annotate the line on the plan then we would be so much wiser as to what to look for as the boundary feature.

2.   The second common shortcoming in boundary descriptions is the use of an Ordnance Survey map as a means of describing property boundaries. The decline in boundary descriptions occurred when vendors discovered that Ordnance Survey's large scale maps, which started to become available in the 1840's, made a convenient base map for the description of properties offered for sale. Obviously, those vendors had not read Section 12 of the Ordnance Survey Act 1841. If so then they surely would not have used, for the purpose of describing property boundaries, a map that is prohibited in law from showing property boundaries.

In the 1840's Ordnance Survey maps were the last word in accuracy: from today's perspective they lack the accuracy needed to describe the exact position of a boundary. Ordnance Survey is more than 200 years old and its mapping accuracy has improved over time, yet in an interview published in the March 2014 edition of Modus (the monthly journal of the Royal Institution of Chartered Surveyors) Dr Vanessa Lawrence the Director General of Ordnance Survey is quoted as saying: "Our topographical information is accurate to within 40 cm ..." This is surely still not accurate enough to adequately describe the exact line of a property boundary.

There are other pitfalls that bedevil vendors' attempts to use Ordnance Survey maps as the basis for boundary descriptions:

  • Out of date Ordnance Survey maps describe what was once on the ground and are an unsuitable basis for describing what is on the ground at a later date on which the boundary is created and described;
  • Vendors are capable of misinterpreting what is represented by a particular line on an Ordnance Survey map, which will be a problem if the boundary is linked to the line that has been misinterpreted;
  • Copies made of Ordnance Survey maps (for example, by tracing, photocopying or scanning) may be distorted versions of the original and this may cause inaccurate depiction of the land and of the boundary.
In spite of all these pitfalls, vendors still resort to using Ordnance Survey maps as the basis for their boundary descriptions. It is not surprising that boundary descriptions based on Ordnance Survey maps are frequently ambiguous.

3.   The third common shortcoming in boundary descriptions is the recycling of an architect's design plan for use as a conveyance plan or as a transfer plan. It is of course preferable for the conveyance plan or transfer plan to be based on a survey of what was actually built, because design changes occur between the drawing board and the completion of building works, or because difficulties that are encountered on site require changes from what was designed, or because of errors of interpretation by the builders. Of course, it costs more to survey and map what was built than it costs to recycle the design plans, so it is understandable if regrettable that developers have recycled their design plans for use as conveyance plans. The results of this practice can often mislead someone who is trying to understand where the boundary is located.

4.   The fourth common shortcoming in boundary descriptions, and the one that is the most worrying for the future of property ownership, is the practice of transferring registered land using a TR1 form and a title number. The implication of this practice is that the title plan serves as the transfer plan, and the title plan shows only the general position of the boundary. Reference again to Section 60 of the Land Registration Act 2002 and to Section 12 of the Ordnance Survey Act 1841 demonstrates that the title plan does not show the exact line of the boundary.

Why is this worrying? Consider the following:

  • There is a trend for the persons or organizations that hold the pre-registration title deeds for registered land to take the view that as title to registered land is guaranteed then there is no purpose in retaining those pre-registration title deeds. This has resulted in the destruction of the pre-registration title deeds for an unknown but significant proportion of registered titles.

  • When Land Registry receives an application for the first registration of a title, sometimes it makes and files a copy of the significant pre-registration title deed or deeds used in support of that application. Sometimes Land Registry fails to make and file such a copy. Thus there is no certainty, in the event of the accidental loss or the deliberate destruction of the pre-registration deeds, that Land Registry will be able to supply a copy of the pre-registration deed that contains the authoritative description of the boundaries.
The implication of this is that we are marching slowly but surely towards a situation in which no vendor will be able to tell prospective purchasers the exact location of the boundaries of the land that is offered for sale.

 

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Complications in interpreting boundaries from the title deeds

Unfortunately, the process of determining the exact position of your boundaries is not easy. The technical and legal hurdles that have to be overcome include:

  • Inadequate descriptions of the boundaries in title deeds;
  • Inaccurately quoted dimensions in title deeds;
  • A lack of quality information concerning the dimensions given (who measured these dimensions, how and with what instrumentation were they measured, what steps were taken to ensure their accuracy?);
  • Unclear or inaccurate conveyance / transfer plans;
  • Title plans that show only the general positions of the boundaries;
  • Legal presumptions, intended to fill any gaps in the above evidence, that may or may not apply in your case;
  • the admissibility (as proof of a boundary position) of extrinsic evidence, such as old Ordnance Survey maps, old aerial photographs, photographs from a family photo album or from an archive of photography;
  • Whether the exact position of the boundary has been clarified by a boundary agreement;
  • Whether the legal concepts of adverse possession and of estoppel have caused a change in the position of the boundary;

In attempting to resolve the above list you may need professional assistance.

  • Which expert is appropriate to give a professional opinion in your dispute?
  • Do you have legal expenses insurance, and will this cover your dispute?
  • Do you need a solicitor, and what kind of solicitor should you instruct?

Even if you can resolve everything on the above two lists, you have to remember that your boundary is also the boundary for the neighbour who lives on the other side of it. Your relationship with them, and particularly their reactions to the issues you raise, will determine whether you resolve the dispute:

  • by amicable discussion with your neighbour;
  • by an amicable agreement - or a negotiation - with your neighbour that is assisted by professional opinion or by legal advice;
  • by expert determination, in which you and your neighbour engage an expert to decide for you the exact location of the boundary;
  • by adjudication, in which you present facts to an adjudicator who investigates and arrives at a legally binding decision;
  • by a decision of the Land Registration Tribunal - which is a court within the Tribunals Service of the Ministry of Justice;
  • by a judgment handed down at a County Court or the High Court.

This web site's intention is to give you an introduction to all of the above.

 

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