Investigating Boundaries

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

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Investigating Boundaries

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Investigating boundaries
A property barrister's view
Believe nothing
Assemble the evidence
Evaluate the evidence
Draw conclusions
  FREQUENTLY ASKED QUESTION
How accurate are the dimensions that are stated in title deeds?

Investigating boundaries

To properly investigate a boundary requires the kind of skills displayed by a detective. There are several guiding principles that must be followed:

  • Keep an open mind: take no preconceived ideas into the investigation;
  • Believe nothing: do not take at face value anything that you are told or that you may read in a document;
  • Assemble the evidence: find all of the documents that may assist in ascertaining the true position of the boundary - if necessary, make or commission a detailed, measured land survey;
  • Evaluate the evidence: work out what each piece of evidence is telling you about the boundary;
  • Draw conclusions: identify the evidence that points to a common position for the boundary, and find good reasons before dismissing any evidence that points to a different position.

 

A property barrister's view

In a series of short articles, Nicholas Isaacs of Tanfield Chambers advises:

  • Land Registry plans do not show where the boundary is.

  • Find the originating conveyance, which is the conveyance (of unregistered land) or the transfer of part (of registered land) that created the boundary by division of a larger parcel of land.

  • Construe the "parcels clause" of the originating conveyance by imagining yourself walking around the plot of land at the date of the originating conveyance, with the conveyance in your hand and taking into account what is known about what existed on the ground at the date of the originating conveyance.

  • Make, or commission a land surveyor to make, a good, detailed large scale survey (preferably at 1:200 scale or larger) of the site, covering the full extent of both properties affectedd by the boundary dispute. This survey will be the objective evidence against which all other evidence is measured .

The articles in which these points are made are:
Resolving boundary disputes - Lesson 1: Boundaries and Land Registry plans
Resolving boundary disputes - Lesson 2: Originating conveyances
Resolving boundary disputes - Lesson 3: Construing the parcels clause
Resolving boundary disputes - Lesson 4: The measured site survey

 

Believe nothing

Never take a conveyance plan or a transfer plan at face value. Refer back to the Deed plans section on the 'Conveyance Deeds and Plans' page. Take note of the example of a developer's plan shown there. Then take note of the frequently asked question, below, which deals with the veracity - or otherwise - of dimensions quoted in deeds.

 

  FREQUENTLY ASKED QUESTION  
    
How accurate are the dimensions that are stated in title deeds?
As the conveyance and conveyance plan (see extract on the right) are a legal document, and an official copy of it is held by Land Registry, which is a government appointed official archive, surely the dimensions it shows must be correct?
Barristers are prone to argue, and judges are prone to accept, that any dimensions stated in the conveyance deed or on a conveyance plan must be accurate, or at least true to within whatever tolerance they ascribe to the term "or thereabouts". The argument they propose is that because land is a valuable commodity then the vendor must have gone to the trouble of accurately measuring it out. However, this is an utterly fallacious argument.

If land is valuable then the vendor will seek to maximise his net receipts, or profit, from the sale of the land. As any economist or entrepreneur will point out, minimising costs is one sure way of helping to maximise returns. Given that the vendor will most likely have paid an estate agent to market the land and a solicitor to deal with the conveyancing, why would he go to the "unnecessary" additional expense of employing a land surveyor to measure it? If the purchaser is concerned as to the dimensions of the land he is about to purchase, then - caveat emptor (let the buyer beware) - it falls to the purchaser to go to the expense of accurately measuring the land he is about to buy.

If the conveyance dates from before 1950 then modern land surveying accuracies were not available: modern standards of land surveying productivity arrived much later. Accurate land surveying would have been far more expensive then than now, taking into account inflation. It was certainly not common practice for a vendor to instruct a land surveyor to measure the dimensions of a piece of land prior to its being offered for sale. The dimensions would have been supplied by the vendor, his estate agent or possibly his solicitor, none of whom would have had the relevant land survey training, all of whom were probably inadequately equipped for the task. Perhaps the dimensions were measured by no more accurate a method than pacing out the distance.
In the above example, part of the same land was sold on ten years later. The new conveyance plan (extract at right) repeats the dimensions from the earlier conveyance plan and adds some new dimensions. The new 90'0" dimension is apparently parallel to the 95'0" dimension. The 85'0" dimension is clearly not parallel to the other two, but if it is rotated about its bottom end to make it parallel with the 95'0" and 90'0" lines then it becomes only 82'1" long.
 
Consider the drawing at right, which is a more accurate version of the second conveyance plan. Now, using proportions: if the 82'1" line increases to 90'0" by moving it 155'6" to the left, then it increases to 102'0" by the time it is moved by 395'6" to the left. So we must conclude that the 95'0" dimension must actually have been 102'0". This suggests that the 95'0" dimension was not accurately measured at the time the first deed plan was drawn.
 
There is a further fault in these two conveyance plans. The two lines labelled 240'0" cannot be parallel to each other. Assuming the 90'0" and 102'0" lines are both perpendicular to the lower 240'0" line then, by Pythagoras, the upper line must be 3.5 inches longer than the lower 240'0" line.

This explanation relies on mathematics that should be fully understood by every 13 year old school child. Neither is it rocket science, nor is it arcane knowledge to which only land surveyors are privy. But it is basic mathematics that was not adhered to by whoever was responsible for each of these two conveyance plans.

It should be remembered that the quality of a dimension stated in a deed is determined by the measurement technology and measurement methods used. The quality of a badly measured dimension is not magically improved by its appearance in a legal document. Nor does its quality magically improve simply because Land Registry has seen fit to make and retain a copy of that legal document. It must also be remembered that Land Registry's role is simply to compile a register based on information supplied to it by applicants and that historically, at least until the advent of Determined Boundaries, Land Registry has exercised little or no quality control over the information it has received and placed on the register.

The fact of the matter, and it is generally applicable to the vast majority of conveyances, is that dimensions were poorly measured and that no thought was given to providing sufficient measurements so that the dimensions could be mathematically checked to confirm their veracity. Dimensions given in conveyances should always be treated as being unreliable unless they are corroborated by some other evidence.

Believe nothing (continued)

Never take an Ordnance Survey map at face value. Make sure that you understand all that is written on the Using Ordnance Survey maps page. Do also follow up on the joint statement by Land Registry and Ordnance Survey and take particular note of this quote from it:

"Ordnance Survey maps never show legal property boundaries, nor do they show ownership of physical features. Although some property boundaries may be coincident with surveyed map features, no assumptions should be made in these instances and consequently it is not possible to be sure of the position of a legal property boundary from an Ordnance Survey map."

Never believe that the physical feature that you now see marking the boundary is necessarily the original physical feature referred to in the conveyance deed or the transfer deed. Walls may be re-built, fences may be replaced when they have rotted away, hedges may be replanted — and any non-original features may be located in different places from the original features that they have replaced. If a feature has been replaced then this may be the reason why you are unable to match the dimensions in the title deeds to the physical features at present on the ground.

On residential land never believe that it is possible to work out the exact position of a boundary in relation to a hedge.

If you are given witness statements, then (in the quiet of your own office) test the information they give you against the title deeds, against any old photographs or aerial photographs, and particularly against an accurate land survey of what is on the ground, in order to assess their truthfulness or otherwise.

 

Assemble the evidence

Refer to the Documentary evidence: boundaries page.

Measured land surveys. If you are a landowner then you will probably need to contract a land surveyor, preferably a chartered land surveyor, to do this for you. But if you are going to that expense then you will probably want a chartered land surveyor who is also a 'boundary demarcation and disputes' specialist to do the boundary investigation for you.

If you are a 'boundary demarcation and disputes' specialist who is not a land surveyor then you will be well advised to sub-contract the measured land survey to a land surveyor.

The measured land survey should include:

  • obvious physical features near to the boundary, such as walls, fences, hedges;
  • old artefacts that may once have marked the boundary, such as old posts, strands of wire, staples where wire was attached to trees, footings of old walls;
  • 'enduring hard detail' which includes brick buildings, walls, road edges — basically anything built of stone, brick, concrete or steel that looks like it will still be there in a couple of decades time;
  • any other physical features depicted on the conveyance plan or transfer plan.

The title register and title plan for any registered title in England and Wales can be obtained from Land Registry. They can be purchased online from https://www.landregistry.gov.uk/wps/portal/Property_Search. Don't be shy about getting the 'register and plan' for any neighbouring property with which you are in dispute.

The title deeds for your own property are held, if you own unregistered land and have a mortgage, by your mortgage lender. your mortgage lender will provide you with a copy in return for a fee. If you own registered land then there is a danger that someone may have seen fit to destroy the title deeds on the grounds that they are no longer needed now that your title to the land is registered and guaranteed by the state.

If your title deeds have been destroyed, or if you are trying to obtain a copy of the relevant pre-registration deeds to a neighbour's land, then you have to first obtain a copy of the title register for the property concerned, check through it for references to old deeds and/or plans, and contact Land Registry to ask for an official copy of the material deed or plan. If the reference on the title register to the deed or plan is followed by:

NOTE: copy in certificate

or by:

NOTE: copy filed

then (whether it is implied by silence that the document is filed under the same title or whether it is explicitly stated to be filed under another title) you can be confident that Land Registry are in a position to supply a copy. If there is no such note then they will probably be unable to do so.

Local searches are usually of more interest to a conveyancing solicitor than to someone who is investigating boundaries. If they exist, they will be kept with the other title deeds. You are unlikely to see the local searches relating to a neighbour's property unless there is something particularly useful to his case that is disclosed in evidence prior to trial.

The Property Sellers Information Form, if it is retained at all, will be kept with the title deeds. In the absence of more authoritative information the PSIF may give useful information on easements, on past disputes with neighbour's, and on the vendor's understanding as to the boundaries for which he is responsible (although I have come across a case of a PSIF being contradicted by the conveyance as to responsibility for the boundaries).

Sales plans. Occasionally, and more often in the case of a sale by auction, there is a sales plan included in the marketing material for the property. Such a plan might contain additional information not found in the conveyance plan, but it should be used with caution as it is usually based either on an architect's design plan or on an adaptation of an Ordnance Survey map (i.e. a map not drawn as a property map but as a map of physical features that may not represent property boundaries). In any case, a sales plan would normally be superseded by the conveyance plan.

Planning drawings can be purchased from the archives of the Planning Department of the District, Borough, or City Council in which the land in the registered title is located. The elements of the drawing that record pre-existing ground features are of interest. The elements that show what was intended to be built on the then existing landscape can be misleading: how do you know that construction work adhered precisely to the design plan?

Ordnance Survey maps can be viewed at most County Records Offices and at some public libraries. Copies of older maps can be purchased online at http://www.old-maps.co.uk/index.htm.

Aerial photographs come from a number of suppliers. See the Links page.

Archived photographs may require some imagination to source. County records offices, local newspapers and local museums are obvious starting places. Books describing the history of a town, if lavishly illustrated with old photographs, are another potential source.

 

Evaluate the evidence

Dimensions found in old conveyances very rarely contain enough information to allow a mathematical check of their correctness. See the discussion of dimensions on the Causes of boundary disputes page of this web site.

Dimensions found in old conveyances are always open to question (see the frequently asked question, above). Questions that should be considered include:

  • Do the the dimensions describe a parcel of land whose demarcation on the ground was the responsibility of the purchaser?
  • Were the dimensions measured on the ground or were they scaled from a plan (in which case they will be less accurate than ground measured dimensions)?
  • Do the dimensions relate to physical boundary features in place at the date of the conveyance?
  • Are the physical features now present on the ground the same features as were present at the date of the conveyance?
  • Is the plan on which the dimensions are shown a design plan or a measured survey of what was actually built on the ground?

Of one thing you can be almost certain, but never absolutely sure, and that is that the dimensions do not result from the work of a competent land surveyor and are therefore of dubious quality.

Constructing a perimeter to a parcel of land using the dimensions alone (i.e. there are no angles given at the corner points) is technically impossible unless that parcel of land is a triangle. It is therefore necessary to evaluate the dimensions by attempting to match them to the physical features that exist upon the ground. Even when dealing with a quadrilateral (remember, the parcel of land is not guaranteed to be a square, a rectangle, or even of parallelogram) this can be difficult. The more sides to the polygon that is the parcel of land, the more difficult the task.

Dimensions given on a conveyance plan that is clearly distorted Author's accurate survey (blue) supplemented by Ordnance Survey mapping (grey) Author's interpretation of dimensions onto current fence line (the current fence was known to be a replacement for the fence that had stood at the date of conveyance)

In the above example the boundary has ten sides. The owner of the field claimed that he had lost several metres of his field when the fence on its north side was replaced. By a repetitive process involving trial and error, a decagon constructed from the dimensions was found to fit sufficiently well to the current fence and prove that it followed the original fence that stood at the time the dimensions were measured.

The above explanation is something of a simplification. The parcel boundary that was derived from the dimensions was also compared to old editions of Ordnance Survey maps and to old aerial photographs in order to evaluate the evidence of the dimensions or, if you prefer, to corroborate the evidence, by comparison with other factual evidence (the impartial record of the old maps and aerial photographs).

Only put your trust in a set of dimensions once you have found enough other evidence with which to corroborate them.

 

Draw conclusions

First, test each item of evidence in isolation to see whether there are reasons to accept its truthfulness or to reject it.

Next, evaluate a position for the boundary based on each isolated piece of evidence.

Then see whether a number of pieces of evidence all point to the same position for the boundary. Are there other pieces of evidence pointing to alternative positions for the boundary? If so then consider all of the alternatives. Check whether there is a weight of evidence pointing to one position that has greater credibility than the alternatives.

Never make assumptions. Never jump to conclusions. Always ensure that there is good evidence to support your conclusions - or else conclude that there is insufficient evidence to establish the true position of the boundary.

When the evidence fails to provide an answer then the courts have one more technique for identifying the position of the boundary. This technique recognises that a boundary is defined by a vendor who sells off a small portion of a larger piece of land. Using this technique the court attempts to decide what it was the vendor intended by the words of the deed, or by the information contained in the plan to the deed, that was used to create the parcel of land whose boundary is under investigation.

 

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