Can you assist us with a general enquiry regarding property boundaries. The boundary between our property and that of our neighbours has long been lost amidst a growth of shrubbery, but we have recently located located a line of old concrete fencing posts and strands of wire which probably indicate the exact boundary. As the adjoining property is up for re-development, we to want avoid any encroachment on to our property.
Our local land registry office (in Weymouth, Dorset) is only able to provide us with a general lay-out plan, not a defining boundary between the two properties. Apparently there are no title deeds on record for the neighbouring property and these will be created when the property is sold.
Is there any authority we can approach in order to define the position of the boundary? Is there anything we can do ourselves to assist in the process ?
Thank you, as always, for your valued assistance.
The FPRA replies:
I can understand your concern at the position, but would assure you that your situation is far from unusual. It sounds from what you say that the freehold of the land belonging to your block has been registered, but that the freehold of the adjoining plot has not been registered, retaining its traditional title deeds. This would be because compulsory registration of title has applied in Poole only since 1975, and the land has not changed hands since that date. There is widespread misunderstanding as to the effect of registration. Even when the adjacent properties are registered, the boundaries will not be guaranteed by the Land Registry. This is because only an infinitesimal proportion of properties are registered with ‘fixed boundaries’. In almost all cases, the Land Registry registers the ‘general boundaries’ only. This means that the plan gives an indication of where the boundary is, but its exact line is to be determined by the same indicators that are relied upon with unregistered land: the location of boundary structures, and various legal presumptions.
With unregistered land it is perfectly possible, by mistake, for the plans attached to the conveyances of two adjoining properties both to show a strip of land as belonging to that property. With registered land, this cannot happen, because the Land Registry will check this. If, for example, the unregistered deeds of the adjacent property suggested that the adjacent property owned land that was already registered to you, the Land Registry would not register that strip of land: they would advise the applicants that it was already shown in the register as belonging to you. In most cases the applicant would accept this. This does not, however, mean that a registered title is necessarily ‘better’ than an unregistered title. If the applicant persisted, there would be a boundary dispute, and the position would have to be sorted out. I would agree that the line of the concrete posts and wires would almost certainly mark the true boundary. The Land Registry plan very probably follows this, but if necessary the Land Registry would almost certainly adjust your boundary so that it followed this line, allowing the remainder of the land to be registered to the applicants. To that extent the position ‘on the ground’ is likely to be more important than trying to ‘scale off’ the boundary line from the Land Registry plan.
It would certainly do no harm if you were to write to the sellers of the adjoining land, or their Agents, saying that, within the bank of shrubs there are the remains of a post and wire fence, and asking them to confirm that they agreed that this marked the legal boundary between the two properties. If there is any real doubt as to whether this is the case, it is better that it should be resolved now, when the fence can still be traced, rather than after it has been lost through an excavator grubbing up the other side of the shrubbery. I would be surprised if you did not receive a reply to the effect that they agreed that this was the line of the legal boundary. If they did confirm this, then the Agents would be well advised to draw the correspondence to the attention of any purchaser of the adjacent property.
If the adjacent property claimed some boundary line that was more favourable to them, then the matter would have to be resolved in court, or by the Adjudicator to the Land Registry; but the circumstances would have to be unusual for the legal boundary to be held to be different from the line of the fence, even if either the current Land Registry plan for your freehold, or any plans attached to the existing unregistered deeds of the adjacent property suggested something different.
If the owners or agents of the adjacent property refused to respond at all, this might be worrying. You could approach the Land Registry to have your title amended so that it had fixed boundaries. This would not, however, be cheap. If you were seriously worried that a developer purchasing the adjacent property might seek to acquire the shrubbery on your side of the fence then you might alternatively instruct a surveyor to draw up a plan for you; the surveyor could then draw up a plan showing the boundary line, and tying it by measurements to your building and/or other fixed features; photographs would also be taken of the remains of the fence. It is better if this is done jointly by surveyors instructed by each neighbour; but even if it were done by a surveyor acting for you, would be extremely difficult for a neighbour to dispute these findings if subsequently the fence got destroyed, by accident or design, in groundworks done before any redevelopment.
There is some useful further information about boundaries to be found on the Land Registry website.
Finally, I should add that FPRA only advises member associations – we cannot and do not act for them. Opinions and statements offered orally and in writing are given free of charge and in good faith and as such are offered without legal responsibility on the part either of the maker or of FPRA Ltd.
Nicholas T M Roberts, BA, LLM, PhD
Legal Adviser, FPRA Ltd.