Boundary Disputes

In one sense any dispute between adjoining landowners over land is a boundary dispute but the term tends to be applied to cases where only a narrow strip of land on the boundary is in dispute.

Boundary disputes are a specialist area within English land law and tend to be more complicated, and more costly to try to resolve, than land disputes involving larger areas of land. One reason for this is that small-scale plans, the kind of plans used in conveyance deeds, typically do not show the precise limits of the land being conveyed. They are often roughly drawn and not to scale, but even if they are to scale and carefully drawn, the width of a line on a small-scale plan will itself represent a few feet on the ground.

Because of these practical difficulties the legislation providing for registration of land in England in fact provides for the registration of approximate boundaries, or general boundaries, as they are referred to in the Land Registration Act 2002. A Title Plan issued by the Land Registry will contain a note saying This title plan shows the general position, not the exact line, of the boundaries.

One notable logical consequence of the general boundaries rule is that if the registered title consists solely of a thin strip of land, it is possible that that registered title contains no land at all. So counter-intuitive is this consequence that it was thought necessary to spell it out in the original Land Registration Rules 1925. Rule 278 of the old rules provides that:

278.— General boundaries.

(1) Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan... shall be deemed to indicate the general boundaries only.

(2) In such cases the exact line of the boundary will be left undetermined—as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream...

(4) This rule shall apply notwithstanding that a part or the whole of a ditch, wall, fence, road, stream... forms the whole of the land comprised in the title. (emphasis added).

Of course even though the registered title only shows the approximate position of a boundary, the boundary must objectively be in some precise position. It is just that the courts and tribunals only pronounce on its exact position if some dispute has arisen (which cannot be settled by agreement - always the first thing to consider) and in that case additional evidence - beyond the usual evidence of title - will need to be considered including evidence of historical boundary features. Invariably a land survey will need to be carried out by an expert surveyor.

There can be a risk that litigation over a boundary dispute becomes a runaway train where, after significant legal costs have been incurred, the parties feel that they must see it though to the bitter end, rather than withdraw, because of the costs consequences of withdrawing. Generally the losing party in litigation is ordered to pay the legal costs of the winning party. If the dispute is over an acre of land and party A, which claims title, is awarded title to the whole one acre, then party B, which has lost, will typically be ordered to pay A's costs. If A is awarded most of the one acre except for a small strip of land on the boundary then again, A having won the overwhelming majority of the land claimed, B will normally be ordered to pay A's costs. But if, instead of one acre being in dispute, it is only the thin strip of land on the boundary which is disputed - a typical boundary dispute - then who is ordered to pay whose costs hinges on who is found to own that small strip of land. This is what makes the decision about whether to commence boundary dispute litigation particularly difficult.

Boundary dispute litigation can involve making an application to the Land Registry (which, if objected to, will then be referred to the First-tier Tribunal - Property Chamber, Land Registration) or, alternatively, making a civil court claim. The pros and cons of each will vary, to a degree, depending on the particular case, but generally:-

  • The judges of the First-tier Tribunal (Property Chamber - Land Registration) are specialist land law judges whereas judges in the County Court who deal with boundary disputes are not usually specialists.

  • You can only apply to the Land Registry to register a "determined" (exact) boundary if the land is already registered land (registered in the normal way with "general" boundaries).

  • A court claim, if pursued to the end, will invariably result in the court deciding exactly where the boundary line is. If the court decides that the boundary is not where the Claimant claims it to be, the court will do the best it can, even if the evidence is somewhat sparce, and declare where the boundary is: the court will not leave the boundary "fuzzy". If the First-tier Tribunal decides that the boundary is not where the Applicant claims it is, it will also attempt to decide exactly where it is but the Tribunal, unlike the court, has the option, if the evidence is sparce, of simply dismissing the Application and leaving the boundary "fuzzy" - i.e. leaving it registered as just a "general" (approximate) boundary. Sometimes the Tribunal may decide the exact position of part of a boundary and leave another part, about which the evidence is less clear, as a "general" boundary.

  • The Tribunal has no power to grant an injunction - e.g. to prevent trespass. Usually once a boundary has been definitively declared it is respected: it is the uncertainty which causes neighbours to encroach and once an authoritative decision has been made usually there is no further encroachment. If, following a decision by the Tribunal, there is further or continued encroachment then a court claim for an injunction can be made, and a court claim can, in appropriate cases, also be made for damages (compensation) for the encroachment which occurred both before and after the Tribunal's decision.

  • However sometimes an urgent injunction is needed before a final decision on the position of the boundary can be made. For example if a neighbour is threatening to demolish a historical wall, a temporary injunction will be necessary to prevent that happening while the process of having the position of the boundary authoritatively decided proceeds. In that case court proceedings would be issued. Once the urgent matter of an interim injunction has been decided the proceedings to decide, finally, the position of the boundary, can then proceed in court or, if the land is registered, it might be appropriate for court proceedings to be stayed (suspended) whilst an application for a determined boundary is made to the Land Registry.

Disclaimer

The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but contact a lawyer (barrister or solicitor) specialising in boundary disputes.

This page was lasted updated in March 2021 Disclaimer