Home-buying and boundaries

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

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Home-buying and boundaries

  You are here:    Boundary Problems | Home-buying and boundaries
Choosing a home
     Buying the home
     Buying a home on registered land
     Buying a home on unregistered land
General Boundaries
Conveyancing and boundaries
Should the home-buyer make a visit to check the boundaries?
Preparations for the boundary check visit
During the boundary check visit
Factors to bear in mind on a visit to check the boundaries
     1. Road Frontages
     2. Open-plan front gardens
     3. All boundaries
          3.a. Walls
          3.b. Retaining walls
          3.c. Fences
          3.d. Hedges
          3.e. Hedges and ditches
     4. Buildings abutting the boundaries
     5. Rights of way, shared driveways, parking areas
          5.a. The archway footpath
          5.b. The unwanted coal path
          5.c. The more modern, longer, access path
          5.d. The retro-fitted shared driveway
          5.e. The modern shared driveway
     5. Rights of way, shared driveways, parking areas
     6. Ransom strip
Following the boundary check visit
Things a house-buyer should never do
What a seller should do if a problem boundary discourages buyers
Conclusion

 

It is often said that that buying a home is the biggest purchase that any of us will make. Unsurprisingly, there is a great deal of ritual, intended for the protection of the purchaser, surrounding the purchase of a home than there is surrounding the purchase of almost anything else. Surprisingly, there is rarely any mention, during the purchasing process, of the boundaries of the land on which the home stands.

 

Choosing a home

If you have already bought a home, does the preceding paragraph accord with your experience? If you have not, then allow me to share some of my own experiences of home-buying.

The first ritual is to visit all of the estate agents in the area to gather sales particulars for as many properties as are in your price range within the area in which you intend to live. The first thing to note is that none of these sales particulars will mention anything about boundaries.

The sales particulars are sifted through to create a long list of candidate future homes. This is followed up with a drive-by of the long list properties to filter the list down to a short list. Appointments are made to view the properties on your short list.

At the viewing, you may be shown around the house and garden by the owner who is trying to sell the house to you or by the estate agent. Whilst the fences or hedges or walls surrounding the garden may be discussed, they are not discussed in the context of them representing the boundaries. The best that you can hope to get out of discussing the fences or hedges or walls is a statement as to whether it is the current owner or the neighbouring owner who been responsible for erecting or planting or building and maintaining each of those fences or hedges or walls.

 

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Buying the home

Once you have chosen your future home, arranged a mortgage and had your offer to purchase accepted, most of the remaining rituals are placed into the hands of your conveyancing solicitor. The conveyancing solicitor's duties relate to your future interests in the land on which stands the home you are buying.

 

Buying a home on unregistered land

All three of my house purchases were made before land registration became compulsory in the area in which I intended to live. In those days, conveyancing solicitors clung to the belief that conveyancing was something too complicated for anyone without a solicitor's training to understand. They had a tendency not to explain any of it to their clients. So, once you had moved in to your newly purchased home, you still had received no statement of exactly where your boundaries were to be found.

Another feature of the conveyancing of unregistered land, but only when a mortgage was involved, was that you, the purchaser, were never given sight of your title deeds. Your mortgage lender took those, as protection against you fraudulently selling the house without redeeming the mortgage. Few home-buyers realised that they could request from their mortgage lender, on payment of a fee, a copy of the title deeds. Few home-buyers saw those deeds, and those few that did, saw the deeds only after they had moved in and too late to do anything retrospectively about the boundaries described in those deeds.

Even if you did obtain from your mortgage lender a copy of your title deeds, the chances are that the description of the boundaries is at best, ambiguous. In other words, you still do not know exactly where your boundaries are. And even if you think you do know where a boundary is, your neighbour may hold, and is entitled to hold, a different view from yours as to the exact line of the boundary.

 

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Buying a home on registered land

As I said, my three experiences of home-buying all featured the purchase of unregistered land. There are some differences in conveyancing practices relating to registered land.

The Land Registration Act 2002 introduced new rules intended to increase the rate of first registrations. It is now, in 2021, highly unlikely that anyone purchasing a home will do so on unregistered land. Does this fact change anything?

The first thing that changes is that mortgage lenders now rely, for their protection against you fraudulently selling the house without redeeming the mortgage, on registering their interest in the land (i.e. the money secured against the land and that part of it which you still owe to the mortgage lender) in the form of a charge recorded on the title register that relates to the home you are buying.

This in turn has resulted in the mortgage lenders no longer needing to have possession of the title deeds. Usually, these are returned to the home owner: all too often, the title deeds are destroyed -why hold all that old, semi-incomprehensible (to the layman) paperwork when the title register protects your interests?

The only source for copies of old title deeds whose originals have been destroyed is Land Registry. Unfortunately, Land Registry did not always make and keep a copy of every title deed that was submitted to it in support of an application for registration, so the source is unreliable but worth trying nonetheless.

Whereas the sale of a parcel of unregistered land was effected by a conveyance deed, the sale of a parcel of land that is already registered is effected by a transfer deed, specifically a deed that is the transfer of the whole of the land in a stated title number. Such a deed is usually referred to as a TR1, which is the name given to a template that may be obtained from Land Registry (or rather, from the .gov.uk web site).

 

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General Boundaries

The description of the boundary that is afforded by a TR1 is nothing more than the title number of the property being transferred, in other words, the boundaries are the general boundaries shown on the title plan for the same title number. The general boundaries shown on a title plan do not tell you the exact line of any of the boundaries.

The title plan is an integral part of the title register. Whilst the title register is effectively a guarantee to the Registered Proprietors of their title to the land within their title number, the title register cannot guarantee the exact positions of the boundaries of that land. This is because the title plan shows only the general boundaries of the land.

You should think about the title plan in the following terms:

  • There are no laws or regulations that guard against ambiguous boundary descriptions; hence

  • Land Registry is not given the exact line of the boundary when first registering title to a parcel of land;

  • Land Registry is required by Section 60 of the Land Registration Act 2002 to ascertain only the general positions of the boundaries;

  • Land Registry is required by section 5 of the Land Registration Rules 2003 to plot the general positions of the boundaries onto an Ordnance Survey map;

  • Ordnance Survey is prevented by section 12 of the Ordnance Survey Act 1841 from investigating the positions of property boundaries;

  • Ordnance Survey's maps do not show property boundaries but show physical features that may or may not be related in some way to a nearby property boundary (e.g. centre of a party wall, face of a garden fence, centre or edge of a stream, some unknown distance from the centre of a hedge, etc);

  • Ordnance Survey's maps are likely - by Ordnance Survey's admission - to be accurate to only 400 mm (16 inches) in urban areas and 1000 mm (about 3 feet 3 inches) in rural areas and may contain errors of more than twice those figures. Given that a standard wooden fence post is approximately 100 mm or 4 inches thick, these accuracy tolerances are just not good enough to tell you exactly where the fence is: Ordnance Survey's maps cannot tell you exactly where the boundary is.

Thus, the biggest problem with the purchase of a house - using a TR1 deed that relies on the title plan for a description of the general positions only of the boundaries - is the total lack of useful information concerning the positions of the boundaries of the land on which that house stands.

If the house that you intend to buy is a brand new house, then the transfer deed that will be used to sell the house to you wil be a TP1 deed, which effects the "Transfer of part of registered title(s)", also obtainable from Land Registry (or rather, from the .gov.uk web site). A TP1 deed is required to include a transfer plan. Sometimes this transfer plan will take the form of a title plan with a new boundary line drawn upon it to show the line of division that separates the land belonging to the new house from the remaining land in the original title. Being based on a title plan, such a transfer plan is as useless as is indicated in the bulleted list above. However, many TP1 deeds contain a purpose drawn transfer plan that is possibly more accurate than the Ordnance Survey map on which title plans are based: this may be helpful, at least for any newly created boundaries.

 

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Conveyancing and boundaries

Conveyancing practises have adapted to the purchasing of registered land in a disturbing way. I have heard anecdotally from a number of clients that their conveyancing solicitor has told them that he or she now has a date for "exchange of contracts". The conveyancing solicitor recommends that the purchaser makes another appointment to view the property - prior to exchange of contracts - and to take with them a copy of the title plan, urging them to check out the boundaries against the title plan.

Why is this disturbing? Think about it. Your conveyancing solicitor's job is to protect your interests in the land that you are about to buy. How are your interests protected when your conveyancing solicitor delegates to you - who has no training in property law or in boundaries - the task of checking the boundaries?

If there is some aspect of protecting your interests that your solicitor is unable to investigate (and for boundaries this is in respect of institutional failings rather than your solicitor's incompetence) then shouldn't your solicitor notify you of this, and go on to outline the risks to you and suggest remedies that you can take? Instead, the entire conveyancing profession ignores the problem.

If you follow up on your solicitor's advice by making another viewing appointment and checking the boundaries against the title plan, are you giving yourself any protection against later finding yourself in a boundary dispute with an owner of land adjoining the land that you are buying?

Of course not, and you cannot later argue against your neighbour's contrary opinion as to the position of a boundary that you bought your land on a "sight as seen" basis and that when you inspected the land you saw a boundary in a particular place. "Sight as seen" is a concept that protects the vendor against a purchaser coming back after their purchase has been made and saying "You concealed some defect from me and I want my money back!" You, the purchaser, cannot use that "sight as seen" argument against a neighbour who was not a party to your purchase of your newly-acquired home.

In any case, you cannot "see" a boundary: the boundary is invisible, although it may have been marked by some physical feature such as a fence. However, it is unwise to assume, without any kind of enquiry or investiugation, that what you see is in fact a boundary marker.

The only person who stands to gain anything from a home-buyer visually checking the boundaries against a title plan prior to exchange of contracts is that home-buyer's conveyancing solicitor. This is because, if the home-buyer later discovers a problem with one of the boundaries and returns to the their conveyancincing solicitor with a complaint, the home-buyer will surely be met with the retort, "Well, you checked the boundaries yourself. There is no-one but yourself that you can blame."

 

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Should the home-buyer make a visit to check the boundaries?

It is possible for the home-buyer to turn to his or her advantage the suggestion of making another appointment to view the property with the aim of checking out the boundaries. But you need to know what you are doing and why you are doing it, so read on.

The first thing to note is that in my preceding paragraph I mentioned that the aim of the visit is "checking out the boundaries", and I did not associate the title plan with that aim. That was not a careless omission; I was deliberately disassociating the title plan from any consideration of checking the boundaries. This is because:

 

Preparations for the boundary check visit

What the home-buyer should first do is to establish how many boundaries there are surrounding the home that is being sold. This is about the only thing that the title plan is useful for. As an example of how many boundaries your future home may have, my present home has boundaries with three other houses on the same development, as well as boundaries with two houses on an adjoining and later development, together with a frontage onto a public highway; that's six boundaries in total.

The home-buyer should then ask their conveyancing solicitor for:

  • a copy of all of the pre-registration title deeds as exist, preferably both for the property they are purchasing and for each of the adjoining properties;

  • a copy of any boundary agreements and/or registered exact line of boundary that affects any of the boundaries.

The plans that are part of the pre-registration title deeds may be difficult for the home-buyer to understand and use, but are essential for working out where the boundary was at the date of those deeds, but bear in mind that the boundary may have moved since then, for which you will have to ask the seller for confirmation and for documentary evidence.

Any boundary agreement and/or exact line of boundary regsitration will take precedence over the general boundary shown on the title plan.

Read the Factors to bear in mind on a visit to check the boundaries, below, before making the visit.

 

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During the boundary check visit

During the visit to check the boundaries, the home-buyer should discuss with the seller each identified boundary separately, aiming for each them to establish:

  • Does the seller know exactly where the boundary is?

  • What physical feature, if any, is used to mark the boundary?

  • Who owns the boundary-marking feature and how does the boundary relate to that feature, i.e.
    - does it run along the inner face of that feature, (which would indicate that the boundary-marking feature belongs to the neighbour);
    - or the outer face of that feature, (which would indicate that the boundary-marking feature belongs to the seller);
    - or along its centre, (which would indicate that the boundary-marking feature is a party feature);
    - or parallel to, which side of, and at a what distance from the face or the centre of that feature? (with the aim of identifying both the position of the boundary and the ownership of the boundary-marking feature).

  • Does the owner to the other side of the boundary agree with what the seller is telling you?

  • Is the boundary the subject of a boundary agreement?

  • has the boundary ever been in dispute, and if so, then what was the outcome of that dispute?

It is unlikely that you will get a satisfactory answer to all six of those questions in relation to all of the boundaries. This is much more likely to be because the seller is unaware of the answers due to the conspiracy of silence about boundaries in the conveyancing process at the time when your seller bought the house they are now trying to sell to you. But you need answers to all of those questions if you are to protect yourself against the possibility that you will later become embroiled in an "unduly bitter, expensive and time-consuming dispute" (those are the Ministry of Justice's words) over just one of those boundaries.

One way of trying to overcome the seller's lack of knowledge about individual boundaries is, with your conveyancing solicitor's approval, to write to the neighbouring owners, introducing yourself as a potential buyer of the house and seeking their views. You can find out the neighbouring owners' names and addresses by purchasing a copy of their respective title registers, in which they will be named as the "Registered Proprietors ".

 

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Factors to bear in mind on a visit to check the boundariess

1. Road Frontages

Most houses have a garden that fronts onto a public highway It is almost always the owner of the frontaging property that is responsible for erecting and/or maintaining a boundary feature along the road frontage.

In an urban environment you might expect to see a wall, fence or hedge along the road frontage.

In a rural environment you may find a ditch running between the road and the land you are trying to buy. You should ask the seller who owns the ditch and who is responsible for keeping the ditch clear and free-flowing.

In rare cases there may be a retaining wall that either supports the garden above the road, or supports the road above the garden. Be sure to ask who is responsible for that wall.

If you have any doubts concerning the road frontage then you should contact the local Highways Authority to ascertain their point of view. In most case the Highways Authority is part of the county council, but if the property you are in the process of purchasing falls within a unitary local authority area then it is that unitary council that performs the functions of the Highways Authority.

 

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2. Open-plan front gardens

A great many housing developments built since the 1960's have open-plan front gardens. In the great majority of cases, the builders gave no thought to marking the boundaries around each open plan front garden.

In fact, the only open-plan development I know of that features boundary markers to the front gardens is the development on which I now live. Each open-plan front garden boundary on this development is marked by pre-cast concrete edging strips. These are found:
a) at the road frontage separating the roadside footpath from the front garden;
b) separating contiguous tarmac driveways in separate ownership;
c) separating contiguous grass lawns in separate ownership.
There may be other such developments of which I am unaware: if they do exist then my lack of awareness suggests that such developments do not generate boundary disputes.

If you encounter a wall, usually a dwarf wall, near the front of an open-plan front garden with an area of grass between that and the road or footpath across the front of the property, do ask whether the grass outside of the dwarf wall belongs to the property or not. It is quite possible that the wall has been deliberately set back from the front boundary in keeping with the open-plan nature of the development. The same goes for an ornamental fence or a dwarf fence near to the front of an open-plan front garden.

An open-plan front garden with unmarked boundaries is a boundary dispute waiting to happen. A common cause for dispute is a grass lawn the majority of which grows on one property, the minority of which grows on the adjoining property. Often, the owner of the larger portion of lawn mows the whole of the lawn, unaware of where the - unmarked - boundary runs. One day the owner of the smaller portion of lawn discovers where the boundary runs and asserts ownership rights, whereupon the owner of the larger portion mistakenly attempts to assert ownership of the smaller part of the lawn on the basis of all that mowing.

It is quite possible that the seller, when asked where the boundary to the side of the open-plan front garden is to be found, will point to a line that differs from that shown in the original conveyance deed or transfer deed and from the general position of the boundary shown on the title plan. If this is the case in your checking, prior to purchase, of the boundaries then you need to bring this to your conveyancing solicitor's attention.

 

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3. All boundaries

This section should be taken to apply to front gardens and open-plan front gardens as much as to rear gardens and side access ways.

In an ideal world, the conveyance deed or the transfer deed will make it clear as to who is responsible for maintaining the boundary-marking features along which of the boundaries of the property being sold; be it the seller or the adjoining landowner. Traditionally, this is done by placing a T-mark on the transfer plan, with the base of the T standing on the boundary and the T-mark being drawn on the land whose owner is responsible for the maintenance of the feature along that boundary. If the feature in question is a party feature then two T-marks are placed base-to-base such that it looks as though an H-mark straddles the boundary.

Unfortunately, too many conveyance deeds and transfer deeds are silent as to the responsibility for marking the boundary. In such circumstances it is necessary to ask the vendor which of the boundary-marking features they have either built or paid for or maintained during the time they have owned the house.

 

3.a. Walls

Because of their longevity and their flat faces, brick walls make good boundary markers. Longevity is an advantage of stone walls, but they usually have uneven faces.

A wall along the road frontage will usually belong to the frontaging property and not to the road.

Garden walls that mark boundaries may have been constructed either by the developer who built the estate of houses, in which case it is necessary to see what the original title deeds (Conveyance or Transfer of Part - TP1) has to say about ownership of the wall. Sometimes, that information is copied onto the title register.

Alternatively, such boundary-marking garden walls may have been added later by an owner of the house.

Ownership of a wall along a flank boundary can sometimes be difficult to establish. If the wall is reinforced with piers (pillars), then if the piers are on the side of the wall within the land you are in the process of buying the wall probably belongs to the property your buying: if they are on the other side of the wall then the reverse is true. If the piers are constructed to both sides of the garden wall then it is likely to be a party wall, i.e. belonging to both properties.

 

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3.b. Retaining walls

Retaining walls may be built along a boundary, or they be built in some other place. Because they are built to support the weight of the land to the higher side of the wall, they have to be considerably stronger than a simple garden wall. When a retaining wall that was built alomg a boundary starts to fail it is likely to cause a boundary dispute because neither the owner of the land above it nor the owner of the land below it wishes to pay the high cost of repair or replacement.

If there is a retaining wall along a boundary it is essential to establish - without doubt - who is the owner of the retaining wall. It is also necessary to establish whether the retaining wall is in a sound condition, and for this it is necessary to obtain a report from a chartered building surveyor or a structural engineer.

 

3.c. Fences

The mere existence of a fence is not evidence that the fence marks a boundary.

Whilst boundary-marking is a principal reason for erecting a fence, fences;
- may also mark internal divisions of land,
- may be erected as privacy screens, or
- may have been emplaced as pet fences whose purpose is to prevent the family's pets from passing beneath a hedge (and that hedge may not be a boundary-marking feature either).

There may be some valid reason why a strip of land is deliberately left outside of the fence that otherwise appears to mark the boundary.

When it comes to fences, make no assumptions, ask questions.

 

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3.d. Hedges

In a small minority of cases there will be a clause in the transfer deed declaring that any hedge that stands along the boundary is a party hedge; or in other words the hedge is jointly owned by the landowners to either side of the hedge.

In all other cases, a hedge that stands along the boundary is a hedge that was planted by one landowner in a position close to that boundary. That boundary may have originally been marked by a fence that has since been allowed to deteriorate and disappear. There will be no record of how far from the boundary the hedge was planted, and there are no regulations concerning the distance from the boundary that a hedge should be planted.

Sometimes, fragmentary remains of an old fence may be found to one side or the other of the hedge. It is possible that neither the seller nor the neighbouring land owner is aware of these old fence fragments.

 

3.e. Hedges and ditches

The purpose for which land is used can change over time. Former farmland may now be covered in housing. Occasionally, a rural feature such as a hedge-and-ditch boundary can be incorporated into a housing estate. Usually, it is the case that a developer purchases a whole field and a second developer purchases the adjoining field.

With a hedge-and-ditch boundary, the boundary does not follow the hedge but runs along the outer edge of the accompanying ditch. It is usual that the owners of a house whose garden abuts the ditch (rather than the hedge) of a hedge-and-ditch boundary will incorrectly assume that the ditch belongs to themselves: the owner of the house to the other side of the hedge is prevented by the hedge from getting to "their" ditch. It is unlikely that the developer to the hedge side of the hedge-and-ditch would have sold the ditch to the other developer. So the seller of a house whose garden ends beside a ditch with a hedge beyond has no basis for claiming ownership of the ditch.

Sometimes, instead of a ditch beside a former agricultural hedgerow there is strip of land, usually 3 feet (0.91 m) or 4 feet (1.22 m) wide to allow the farmer to get to the far side of his hedge for pruning and maintenance. Again, the ownership of such a strip of land can be misinterpreted once the land is redeveloped as housing.

 

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4. Buildings abutting the boundaries

On many properties, the buildings, outbuildings, sheds and garages are built clear of the boundaries. In some cases, the building stands with the boundary running along its face, and this means that its footings encroach beneath the boundary and its eaves and gutters overhang the boundary. This is a fairly normal situation; the footings and the eaves and gutters are integral parts of the building's structure and therefore belong to the building.

The pre-registration deeds may contain a clause granting an easement for the building's footings to encroach beneath, and the eaves and gutters to overhang, the neighbbour's land. Sometimes the deeds are silent on this subject, but if the situation has persisted for at least twenty years then the building's owner may rely on the provisions of the Prescription Act 1832.

Regardless of whether the encroaching/overhanging building is part of the land you are buying or part of the neighbouring land, the encroachment or overhang may be a cause of friction with the neighbour, and you should ask the seller whether there has ever been such friction and, if so, then whether or how the friction was resolved.

 

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5. Rights of way, shared driveways, parking areas

A common form of right of way affecting particularly older terraced houses is the footpath. It takes one of three forms.

5.a. The archway footpath

This is a footpath running at ground level through the building beneath an archway to provide access between the front and rear gardens of mid- terrace houses. The footpath may be in divided ownership, or may belong to just one property. Either way, there will be a right of way over those parts of the path serving but not owned by the property or properties that make use of the path. The problem sometimes encountered is that the whole of the space above the archway is within the first floor of just one house, and the owner of that house mistakenly believes that they own the whole of the footpath and further and wrongly believes that they can deny their neighbour/s access along that footpath.

 

5.b. The unwanted coal path

It may be a footpath running along the back of each house in the terrace for the purpose of delivering coal to the rear of each house via the shortest practicable path. As most houses no longer use coal, the path's primary function is no longer valid. Having a footpath that runs right past the rear windows of their house is anathema to some people, and they may obstruct the footpath to prevent their neighbours from using it.

Again, the former coal path may simply get in the way of one house-owner's ambition to extend his building to the rear. There are many such terraces where the remaining part of the coal path is unusable because of a neighbour's rear extension that took no note of the existence of the neighbours' rights of way along the former coal path.

 

5.c. The more modern, longer, access path

With the decline of coal, some builders took to building estates in which a footpath runs along the side of one garden and along the rear of other gardens in the terrace, such that each had access from the road to the rear garden that did not require to pass through the house itself. Sometimes, wishing for a larger garden and encouraged by lack of use of such a path, one landowner would incorporate the footpath into his own garden, thus obstructing the rights of way of the owners of the other houses in the terrace.

Beware of being offered a house with a right of way that exists on paper but not on the ground.

 

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Another common form of right of way is the shared driveway. This comes in one of two types.

5.d. The retro-fitted shared driveway

Many semi-detached houses, dating from the 1930's and earlier, were built without garages. As car ownership became more popular there was a perceived need for a garage to be added to these houses. Planning and space considerations prevented them from being built in the front gardens. Few houses had a sufficiently wide side access way to be able to install their own drive. The owners of many semi-detached houses made agreements with the owners of the non-attached neighbouring houses that involved the removal of the fence down the side access way and the building of garages in each garden. Usually, no land changed hands, but mutual rights of way were granted over the non-owned part of this "shared" driveway. An example of this can be seen at Shared driveways.

Frictions can occur if one of the two neighbours wants to restore the fence in the area between the two houses whilst the other wants to retain vehicular access to the rear garden.

 

5.e. The modern shared driveway

From the 1960's on, the laying out of long, straight lines of houses became unfashionable. At the same time the average size of gardens allotted to new houses became smaller. This gave architects difficulties in providing every new house on a development with a frontage to what would become an adopted public highway. To overcome this problem, "shared driveways" were installed within the gardens of the less accessible building plots. Different parts of a single shared driveway would usually fall within the same ownership as the land on which that part of the shared driveway was laid; each part of the shared driveway would be burdened with a right of way in favour of the other building plots that use the same shared driveway. An example of this can be seen at Driveways and parking.

If identical paving is used for the "shared driveway" and for each of the private parking areas that it serves then friction between neighbours may arise. Also, one neighbour parking on the shared drive rather than in the private parking area can also cause friction.

 

6. Ransom strip

Examination of the Land Registry index map identifies a narrow strip of land, whose ownership is uncertain, lying between the property and the public highway. When asked about it, the seller insists that no-one has ever questioned their right to cross that land, by car or on foot, when leaving from or arriving at the property. The existence of that strip of land poses a risk that one day its owner will show up and demand money for granting such a right to the then owner of the house.

 

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Following the boundary check visit

The would-be purchaser should now be in a position to produce a, hopefully short, list of problems or potential problems. Before discussing them with their conveyancing solicitor, the would-be purchaser should classify each of the identified problems into one of the following categories:

A. This Problem is a deal breaker

Example 1: that crumbling retaining wall is in danger of collapse,
Example 2: the seller and neighbour are in dispute . . . over:
Example 3: the ownership of the retaining wall, or
Example 4: the position of one of the boundaries, or
Example 5: the extent of the "shared driveway" and of its associated private parking areas.

The above examples, are all very good reasons for you to want to withdraw your offer for the house and walk away and look for another house to buy instead. This is exactly why you must do the boundary check before exchange of contracts.

B. This Problem is capable of being rectified,
but needs to be made a condition of your offer to buy in order to ensure its rectification.

Example 6: the seller and one of the neighbours are arguing over the position of one of the boundaries but the dispute is stalled because neither is willing either to negotiate a settlement or to take the matter to court.
The home-buyer should tell their comveyancing solicitor that they do not care whether the boundary is where the seller says it is or where the neighhbour says it is, and the conveyancing solicitor will make it a condition of the offer to buy that the seller produces a boundary agreement drawn up to exact line of boundary standards with the proviso that the boundary falls on one or other of, or somewhere between the two, claimed positions and on the further proviso that this be completed before exchange of contracts.

Example 7: your conveyancing solicitor suggests that an indemnity insurance policy is taken out that protects you in the ervent of the owner of the ransom strip making demands of you. There is a one-off payment for the policy, and that payment may be made by the seller, the buyer or it may be split between them, which is all a matter for your conveyancing solicitor to negotiate.

B. This is a Problem I can live with
Example 8: there is known to have been a footpath, but it has been obstructed by one of the neighbours and is now unusuable.

If you are not concerned that everything that goes into and comes out of your rear garden must be carried through the house then you can live without a private right of way to your rear garden: let the purchase proceed.

Of course, if you cannot imagine yourself living in a mid-terrace house with no direct access from the rear garden to the street, then you may consider the blocked footpath as a "Problem capable of being rectified". You may think that making it a condition of your offer that the seller must relieve the obstruction is all you need to do. Unfortunately, a dispute over an obstructed private right of way is likely to be every bit as bitter, expensive and time-consuming as a boundary dispute, which means that your purchase of your new home will be put on hold for one or more years. This means that if you cannot live without that right of way, the situation is re-classified as a "Problem that is is a deal breaker".

 

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Things a house-buyer should never do

i) Never scale from a title plan. Never attempt to establish the position of a boundary by scaling from the title plan its position relative to some other object, for example the wall of the house. The Ordnance Survey map on which the title plan is based is simply not accurate enough for the purpose and there is a greater than 99% certainty that you will derive the wrong answer.

ii) Never use the title plan to validate a boundary agreement, especially a boundary agreement in the form of a registered Exact Line of Boundary. The purpose of a boundary agreement is to provide clarity where the general boundary on a title plan is unclear. You would be using something unclear and ambiguous (the title plan) to validate something that is designed to be clear and unambiguous (the boundary agreement).

An Exact Line of Boundary is required to be accurate to 10 mm. The Ordnance Survey map on which the title plan is based is accurate at best to between 400 mm and 1000 mm, larger errors are not uncommon, and in exceptional circumstances errors exist of greater than 5000 mm. Using an Ordnance Survey map (or a Land Registry title plan) to validate an exact Line of Boundary plan is like measuring out liquid baking ingredients with the bucket of a mechanical excavator when you should be using either a graduated 1 litre jug or a tablespoon.

iii) Never believe the title plan in preference to a boundary agreement, especially if the boundary agreement involves an Exact Line of Boundary registration.

I have a case (a standard boundary dispute that had nothing to do with a house sale) in which the current owner of a house got into a dispute with a neighbour. I was able to demonstrate that the description of the paper title boundary (the conveyance that had divided off the house and garden from adjoining land) was ambiguous having been based on an out-of-date Ordnance Survey map. The dispute was settled on the basis of where the physical boundary features had always been and in spite of that ambiguous paper title description. A boundary agreement was lodged with Land Registry, who declined to alter the title plan, even though it showed the general boundary at a minimum of 5 metres (16 feet) and a maximum of 19 metres (62 feet) from the position of the agreed boundary. Remember, the title plan shows only the general position of the boundary, and in this particular case Land Registry was happy to accord a remarkably large leeway to the meaning of the word "general".

 

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What a seller should do if a problem boundary discourages buyers

If potential buyers are being scared away by a perceived problem with a boundary, then get together with the affected neighbour and agree the boundary, preferably to Exact Line of Boundary standards (for which you will need a chartered land surveyor who specialises in boundaries). Remember that while you may be personally affronted by the terms of the settlement that you reach, it is not a question of whether you can sell the historical extent of the land that you bought, but a question of offering for sale the land that is indisputably yours to sell. The difference between the two may not be of concern to potential purchasers: it is the prospect of an unduly bitter, expensive and time-consuming boundary dispute that is scaring them off.

 

 

Conclusion

On the face of it, delegating to the home-buyer the task of checking of the boundaries of a property prior to its purchase by that same home-buyer, can be seen as naive, reckless, stupid, doomed to failure. After all, more than 99% of home-buyers know nothing about property law or about boundaries.

The present article shows that a home-buyer who is prepared to do the necessary homework before making the visit to check the boundaries can benefit significantly from the exercise by:

  • identifying a major problem with a boundary that indicates the wisdom of withdrawing their offer to buy the property, or

  • identifying a lesser problem with a boundary, which problem can be dealt with by the seller before the home-buyer is comitted to buying the property.

 

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