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

BOUNDARY
PROBLEMS

An Internet resource provided free since February 2000 by Jon Maynard Boundaries Ltd

Statute Law relating to boundaries

 You are here:    Boundary Problems  |   Legal Background  |  Statute Law relating to boundaries
Prescription Act 1832
Ordnance Survey Act 1841
Law of Property Act 1925
Limitation Act 1980
Access to Neighbouring Land Act 1992
Party Wall Etc. Act 1996
Human Rights Act 1998
Land Registration Act 2002
Anti-social Behaviour Act 2003
Legal Precedent
Civil Procedure Rules, Part 35: Experts and Assessors

Whilst it is not the purpose of this web site to offer legal advice, the web site would be incomplete without reference to the principal laws that affect its subject matter. These are dealt with in chronological order. When preparing a case for court, a barrister may make reference to other legislation not mentioned on the present page. A barrister will also make reference to case law (Legal Precedent), which is not fully covered by the present web site.

 

Prescription Act 1832

Section 2 of this Act deals with the qualifying period in support of a claim of an easement where there is no evidence of the granting of such easement. Section 2 is reproduced below.

"No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said Lord the King, or being parcel of the Duchy of Lancaster or of the Duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of 20 years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of 40 years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing".

The above quotation has been taken from:
Sara, C., Boundaries and Easements (2nd edition), Sweet & Maxwell, London, 1996 (ISBN 0421537906)

 

    Return to Top of Page

 

Ordnance Survey Act 1841

Ordnance Survey's maps were frequently used as the basis of conveyance plans, and they are the basis of all title plans issued by Land Registry. But it is important to understand that Ordnance Survey was tasked with mapping only the public (or administrative) boundaries of the land. Section 1 of the Act starts:
"WHEREAS several Counties in that Part of the United Kingdom called England have been surveyed by Officers appointed by the Master General and Board of Ordnance, and it is expedient that general Surveys and Maps of England, Scotland, Berwick upon Tweed, and of the Isle of Man, should be made and completed by Officers in like Manner appointed ; and that the Boundaries of the several Counties in England and Scotland, and of Berwick upon Tweed and of the Isle of Man, should be ascertained and marked out".

Section 12 of the Act specifically tells us that Ordnance Survey has no remit to ascertain and record the positions of property boundaries:

"And be it enacted, That this present Act .... shall not extend, or be deemed or be construed to extend, to ascertain, define, alter, enlarge, increase or decrease, nor in any way to affect, any Boundary or Boundaries of .... any Land or Property, with relation to any Owner or Owners, or Claimant or Claimants of any such Land respectively, nor to affect the Title of any such Owner or Owners, or Claimant or Claimants respectively, in or to or with respect to any such Lands or Property, but that all Right and Title of any Owner or Claimant of any Land or Property whatever within any Hundred, Parish, or other Division or Place whatever, shall remain to all Intents and Purposes in like State and Condition as if this Act had not been passed".

The full text of this Act can be found at http://www.opsi.gov.uk/acts/acts1841/pdf/ukpga_18410030_en.pdf.

 

    Return to Top of Page

 

Law of Property Act 1925

The purpose of this Act was "to consolidate the enactments relating to Conveyancing and the Law of Property in England and Wales". The full text of this Act can be found at http://www.opsi.gov.uk/acts/acts1925/pdf/ukpga_19250020_en.pdf. This is an important Act, many parts of which are still operational. Those parts that are of particular relevance to the content of this web site are quoted below.

The following paragraph is the legislation that tells us that a boundary runs along the centre of a party wall.

38 Party structures.

(1) Where under a disposition or other arrangement which, if a holding in undivided shares had been permissible, would have created a tenancy in common, a wall or other structure is or is expressed to be made a party wall or structure, that structure shall be and remain severed vertically as between the respective owners, and the owner of each part shall have such rights to support and user over the rest of the structure as may be requisite for conferring rights corresponding to those which would have subsisted if a valid tenancy in common had been created.

 

The following passage deals with all of the appurtenances that are included with the sale of a piece of land even though they may not be specifically mentioned in the conveyance that records the sale.

62 General words implied in conveyances. -

(1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.


(2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof.

The following passage emphasizes that easements are intended specifically for the benefit of the land and anyone who may legitimately make use of the land and that they are not for the private benefit of the owner of that land alone.

187 Legal easements.

(1) Where an easement, right or privilege for a legal estate is created, it shall enure for the benefit of the land to which it is intended to be annexed.

If you are unfamiliar with the word "enure", Chambers Dictionary defines it by referring you to the alternative spelling "inure", for which one of the definitions is:
"vi (law) to come into operation or effect"

 

The following passage deals with rights over common land.

193 Rights of the public over commons and waste lands.

(1) Members of the public shall, subject as hereinafter provided, have rights of access for air and exercise to any land which is a metropolitan common within the meaning of the Metropolitan Commons Acts, 1866 to 1898, or manorial waste, or a common, which is wholly or partly situated within [F185 an area which immediately before 1st April 1974 was] a borough or urban district, and to any land which at the commencement of this Act is subject to rights of common and to which this section may from time to time be applied in manner hereinafter provided:

Provided that -

(a) such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority; and

(b) the Minister shall, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent of the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land from being injuriously affected, [F186 for conserving flora, fauna or geological or physiographical features of the land,] or for protecting any object of historical interest and, where any such limitations or conditions are so imposed, the rights of access shall be subject thereto; and

(c) such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle, or to camp or light any fire thereon; and

(d) the rights of access shall cease to apply-

(i) to any land over which the commonable rights are extinguished under any statutory provision;

(ii) to any land over which the commonable rights are otherwise extinguished if the council of the county [F187, county borough] [F188 or metropolitan district] . . . in which the land is situated by resolution assent to its exclusion from the operation of this section, and the resolution is approved by the Minister.

[F189(2) The lord of the manor or other person entitled to the soil of any land subject to rights of common may by deed, revocable or irrevocable, declare that this section shall apply to the land, and upon such deed being deposited with the Minister the land shall, so long as the deed remains operative, be land to which this section applies.]

(3) Where limitations or conditions are imposed by the Minister under this section, they shall be published by such person and in such manner as the Minister may direct.

(4) Any person who, without lawful authority, draws or drives upon any land to which this section applies any carriage, cart, caravan, truck, or other vehicle, or camps or lights any fire thereon, or who fails to observe any limitation or condition imposed by the Minister under this section in respect of any such land, shall be liable on summary conviction to a fine not exceeding [F190 £20] for each offence.

(5) Nothing in this section shall prejudice or affect the right of any person to get and remove mines or minerals or to let down the surface of the manorial waste or common.

(6) This section does not apply to any common or manorial waste which is for the time being held for Naval, Military or Air Force purposes and in respect of which rights of common have been extinguished or cannot be exercised.


Amendments (Textual)

F185 Words inserted by Local Government Act 1972 (c. 70), S. 189(4)

F186 Words in s. 193(1) in para. (b) of the proviso inserted (1.4.2001 for E. and 1.5.2001 for W.) by 2000 c. 37, s. 46(3), Sch. 4 para. 1 (with s. 43); S.I. 2001/114, art. 2(2)(b)(j); S.I. 2001/1410, art. 2(b)(j)

F187 Words in s. 193(1)(d)(ii) inserted (1.4.1996) by 1994 c. 19, s. 66(6), Sch. 16 para. 7(1) (with s. 54(7), Sch. 17 paras. 22, 23(2)); S.I. 1996/396, art. 4, Sch. 2

F188 Words inserted by Local Government Act 1985 (c. 51, SIF 81:1), s. 16, Sch. 8 para. 10(5)

F189 S. 193(2) repealed (21.6.2004 for W. and 6.12.2006 to the extent not already in force for W. and otherwise prosp.) and superseded by 2000 c. 37, ss. 46(1)(a), 102, 103, Sch. 16 Pt. I (with s. 43); S.I. 2004/1489, art. 2 (with saving in art. 3); S.I. 2006/3257, art. 2(c)(i) (with saving in art. 4)

F190 Figures substituted by Criminal Justice Act 1967 (c. 80), Sch. 3 Pt. I

 

    Return to Top of Page

 

Limitation Act 1980

This Act deals with the Ordinary Time Limits for Various Classes of Action. The full text of this Act can be found at http://www.opsi.gov.uk/acts/acts1980/pdf/ukpga_19800058_en.pdf. Sections 15 to 19 of the Act deal with Actions to Recover Land and Rent, and part of Section 15 is reproduced below.

15.-(l) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

(2) Subject to the following provisions of this section, where-

(a) the estate or interest claimed was an estate or interest in reversion or remainder or any other future estate or interest and the right of action to recover the land accrued on the date on which the estate or interest fell into possession by the determination of the preceding estate or interest; and

(b) the person entitled to the preceding estate or interest (not being a term of years absolute) was not in possession of the land on that date;

no action shall be brought by the person entitled to the succeeding estate or interest after the expiration of twelve years from the date on which the right of action accrued to the person entitled to the preceding estate or interest or six years from the date on which the right of action accrued to the person entitled to the succeeding estate or interest, whichever period last expires.

 

    Return to Top of Page

 

Access to Neighbouring Land Act 1992

The full text of this Act may be found at http://www.opsi.gov.uk/acts/acts1992/Ukpga_19920023_en_1.

The Act describes itself as :

"An Act to enable persons who desire to carry out works to any land which are reasonably necessary for the preservation of that land to obtain access to neighbouring land in order to do so; and for purposes connected therewith."

 

    Return to Top of Page

 

Party Wall Etc. Act 1996

The principal purpose of the Act would appear to be to safeguard the structure of neighbouring properties within a terraced or semi-detached building. But the Act also makes provision for safeguarding neighbouring structures whenever someone wishes to excavate their own land close to structures on a neighbouring property. Or as the Act describes itself:

"An Act to make provision in respect of party walls, and excavation and construction in proximity to certain buildings or structures; and for connected purposes."

The Act makes various provisions that are relevant in the context of boundaries and it provides us with a number of useful definitions: .

The following definitions of terms come from Section 20 Interpretation:

"foundation", in relation to a wall, means the solid ground or artificially formed support resting on solid ground on which the wall rests;

"party fence wall" means a wall (not being part of a building) which stands on lands of different owners and is used or constructed to be used for separating such adjoining lands, but does not include a wall constructed on the land of one owner the artificially formed support of which projects into the land of another owner;

"party structure" means a party wall and also a floor partition or other structure separating buildings or parts of buildings approached solely by separate staircases or separate entrances;

"party wall" means -

(a) a wall which forms part of a building and stands on lands of different owners to a greater extent than the projection of any artificially formed support on which the wall rests; and

(b) so much of a wall not being a wall referred to in paragraph (a) above as separates buildings belonging to different owners;


Section 1 New building on line of junction defines a "boundary wall" by differentiating it from a party wall or a party fence wall in the following terms:

. . . where lands of different owners adjoin and -
(a) are built on at the line of junction only to the extent of a boundary wall (not being a party fence wall or the external wall of a building) . . .

The foundations of boundary walls are covered in the following extract from Section 1 of the Act:

(6) Where the building owner builds a wall wholly on his own land in accordance with subsection (4) or (5) he shall have the right, at any time in the period which -
(a) begins one month after the day on which the notice mentioned in the subsection concerned was served, and
(b) ends twelve months after that day,
to place below the level of the land of the adjoining owner such projecting footings and foundations as are necessary for the construction of the wall.

(7) Where the building owner builds a wall wholly on his own land in accordance with subsection (4) or (5) he shall do so at his own expense and shall compensate any adjoining owner and any adjoining occupier for any damage to his property occasioned by -
(a) the building of the wall;
(b) the placing of any footings or foundations placed in accordance with subsection (6).

The Act requires the serving on an adjoining landowner of a 'party structure notice' and the option for the adjoining landowner to serve either a consent notice or a 'counter notice' which specifies additional works required. It also makes provisions in respect of excavations within a specified distance of neighbouring structures.

Because the works that are covered by the Act may engender a dispute between neighboring landowners the Act also makes provision for the resolution of those disputes by the appointment of surveyors.

The full text of this Act may be found at http://www.opsi.gov.uk/acts/acts1996/Ukpga_19960040_en_1.

 

    Return to Top of Page

 

Human Rights Act 1998

Part II
The First Protocol
Article 1
Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The full text of this Act may be found at http://www.opsi.gov.uk/acts/acts1998/ukpga_19980042_en_1.

 

    Return to Top of Page

 

Land Registration Act 2002

This is the Act under which Land Registry now operates. Of particular interest is the statement - in the Act itself, rather than in the Rules - that registered boundaries are general boundaries.

Boundaries

60     Boundaries

(1)    The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section.

(2)    A general boundary does not determine the exact line of the boundary.

What the above quote is telling us is that Land Registry is not a general repository for the definitions of the exact positions of property boundaries. Reading between the lines, Land Registry is not the authoritative national archive for the exact positions of property boundaries. To make this point perfectly clear, Land Registry and Ordnance Survey (on whose maps the Land Registry title plans are based) have found it necessary to issue a joint statement that can be found on their respective web sites:
Land Registry, and Ordnance Survey.

If Land Registry is not the national authority on the exact positions of property boundaries then it is reasonable to ask, who is the authority? Sadly, the answer is that there is no such authority. Land Registry's role is simply to record what an existing land owner can tell Land Registry, at the time a parcel of land is first registered, about the land, about who has legal interests in the land, and about where the boundaries of that land are located. Usually, these landowners simply do not know the exact locations of their boundaries, and this leaves Land Registry with no option but to record only the general positions of the boundaries.

The Act does, however, make provision to enable exact boundaries to be recorded, in the following terms:

(3)    Rules may make provision enabling or requiring the exact line of the boundary of a registered estate to be determined and may, in particular, make provision about —

   (a)    the circumstances in which the exact line of a boundary may or must be determined,

   (b)    how the exact line of a boundary may be determined,

   (c)    procedure in relation to applications for determination, and

   (d)    the recording of the fact of determination in the register or the index maintained under section 68.

(4)    Rules under this section must provide for applications for determination to be made to the registrar.

The above provisions have not resulted in a national campaign to improve the definitions of property boundaries. However, they do allow individual landowners to apply to Land Registry for the determination of the exact line of their boundary or boundaries. In practice, this means the landowner needs professional help from a land surveyor to establish the exact location of their boundary and to accurately map and describe that boundary. Unless the agreement of the adjoining landowner as to the exact position of the boundary is obtained, then the application is doomed to rejection by Land Registry.
 

The Land Registration Act 2002 also makes new law relating to adverse possession.

Part 9
Adverse possession


96     Disapplication of periods of limitation

(1)    No period of limitation under section 15 of the Limitation Act 1980 (c. 58) (time limits in relation to recovery of land) shall run against any person, other than a chargee, in relation to an estate in land or rentcharge the title to which is registered.

(2)    No period of limitation under section 16 of that Act (time limits in relation to redemption of land) shall run against any person in relation to such an estate in land or rentcharge.

(3)    Accordingly, section 17 of that Act (extinction of title on expiry of time limit) does not operate to extinguish the title of any person where, by virtue of this section, a period of limitation does not run against him.

97     Registration of adverse possessor

Schedule 6 (which makes provision about the registration of an adverse possessor of an estate in land or rentcharge) has effect.

Note: Schedule 6 may be viewed at
http://www.opsi.gov.uk/acts/acts2002/ukpga_20020009_en_15#sch6
.

98     Defences

(1)   A person has a defence to an action for possession of land if —

   (a)   on the day immediately preceding that on which the action was brought he was entitled to make an application under paragraph 1 of Schedule 6 to be registered as the proprietor of an estate in the land, and

   (b)   had he made such an application on that day, the condition in paragraph 5(4) of that Schedule would have been satisfied.

(2)   A judgment for possession of land ceases to be enforceable at the end of the period of two years beginning with the date of the judgment if the proceedings in which the judgment is given were commenced against a person who was at that time entitled to make an application under paragraph 1 of Schedule 6.

(3)   A person has a defence to an action for possession of land if on the day immediately preceding that on which the action was brought he was entitled to make an application under paragraph 6 of Schedule 6 to be registered as the proprietor of an estate in the land.

(4)   A judgment for possession of land ceases to be enforceable at the end of the period of two years beginning with the date of the judgment if, at the end of that period, the person against whom the judgment was given is entitled to make an application under paragraph 6 of Schedule 6 to be registered as the proprietor of an estate in the land.

(5)   Where in any proceedings a court determines that —

   (a)   a person is entitled to a defence under this section, or

   (b)   a judgment for possession has ceased to be enforceable against a person by virtue of subsection (4),

the court must order the registrar to register him as the proprietor of the estate in relation to which he is entitled to make an application under Schedule 6.

(6)   The defences under this section are additional to any other defences a person may have.

(7)   Rules may make provision to prohibit the recovery of rent due under a rentcharge from a person who has been in adverse possession of the rentcharge.

The full text of this Act may be found at http://www.opsi.gov.uk/acts/acts2002/ukpga_20020009_en_1.

 

    Return to Top of Page

 

Anti-social Behaviour Act 2003

This may at first glance appear to be a strange Act to cite on a web site about boundaries and other neighbour disputes. However, Part 8 of the Act (Sections 65 to 84) deals with High Hedges).

Part 8
High Hedges
Introductory

65     Complaints to which this Part applies

(1)   This Part applies to a complaint which —

   (a)   is made for the purposes of this Part by an owner or occupier of a domestic property; and

   (b)   alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person.

(2)   This Part also applies to a complaint which —

   (a)   is made for the purposes of this Part by an owner of a domestic property that is for the time being unoccupied, and

   (b)   alleges that the reasonable enjoyment of that property by a prospective occupier of that property would be adversely affected by the height of a high hedge situated on land owned or occupied by another person,

      as it applies to a complaint falling within subsection (1).

 

(4)   This Part does not apply to complaints about the effect of the roots of a high hedge.

The full text of the Act may be found at http://www.opsi.gov.uk/acts/acts2003/ukpga_20030038_en_1.

 

    Return to Top of Page

 

LEGAL PRECEDENT

Statute law should be viewed as a framework within which society is expected to behave. Statute law (i.e. the law laid down in Acts of Parliament) cannot be expected to predict the fine detail of every potential future infraction of the law. As a result, a considerable body of law has resulted from the decisions, or judgments, that judges have made as they have deliberated during individual cases. This body of law is referred to either as "case law" or as "legal precedent".

When a barrister is preparing a new case for court he or she will consider whether a previous case exhibits sufficient similarity to the present case for it to be used as a precedent. Such a "legal precedent" from case law will be referred to by the names of the two parties to the litigation, such as "Smith v Jones".

All of the text books (see Reading List) will cite the relevant case law. However, case law is being added to and a serious student will want to subscribe to a legal updating service.

The layperson should be cautious about using case law. The circumstances of his or her case may be subtly different from the case that established the legal precedent and it would be wise to seek legal advice on the matter.

 

Civil Procedure Rules, Part 35: Experts and Assessors

If you choose to settle your dispute by taking the matter to court (as opposed to using mediation, arbitration, adjudication) then you may wish to know that your Expert's conduct will be governed by the rules found at http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part35.htm.

 

    Return to Top of Page