ISSUE 7 JANUARY 2009
TITLE NEWS
5 1 O a k w oo d A v e n u e , B o r e h a m w oo d WD 6 1 S S
Boundary
disputes
The law reports are littered with examples of disputes
between adjacent owners relating to the precise
location of a boundary. Boundary disputes give rise
not just to disputes between neighbours, but also a
possible accompanying claim for adverse possession,
where one owner has occupied land on the mistaken
belief that the land belonged to them.
Title & Covenant
Brokers Limited
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deeds with any precision, and the physical boundary
– e.g. fences, walls, hedges and other boundary
features on the site. The difficulty for a client is that it
is often difficult to determine whether or not the two
are in precisely the same place. In cases of doubt, a full
legal enquiry will be necessary, including:
• An inspection of the property.
• A comprehensive inspection of all title deeds. This
includes all pre-registration title deeds, which may
assist in clarifying inaccuracies at the Land Registry.
• An analysis of all title plans – both Land Registry
In one of the latest disputes to be reported (the case
plans, and old transfer plans – and any available
of Piper v Wakeford [2008] EWCA
Ordnance Survey maps, and
Civ 1378), the Court of Appeal
old photographs. The case of
commented that “the dispute
“Boundary disputes give rise
Wiggington and Milner Ltd v
has all too many features that are
Winster Engineering Ltd [1978]
not just to disputes between
usual and familiar: on the one
1 WLR 1463 establishes that
hand the need for the parties
neighbours, but also a
an old unregistered deed plan,
to have their disputes resolved
possible accompanying claim
stated to be “for the purposes
by the court, rather than by any
of identification only”, is not
for adverse possession, where
process of sensible discussion,
irrelevant. It can still be used as
accommodation or mediation
one owner has occupied land
an aid to construction.
(though such processes were
on the mistaken belief that
at least attempted) and, on the
• Looking for “T” marks on
other hand, the fact that the
the land belonged to them.”
a conveyance plan (even if
issue turns on the interpretation
stated to be for the purposes of
of a conveyance and its plan,
identification
only).
These are normally expected to
executed 100 years ago this year, in relation to which
indicate ownership of the boundary feature. So if, at
there is very little information available as regards
the time of the conveyance, the boundary feature in
the relevant surrounding circumstances, and where
existence was a hedge, the whole of it is presumed
the information given by the document itself is
to be included with the property conveyed. See
inadequately detailed.” The interesting feature of
Seeckts v Derwent [2004] NPC 51.
this case, dealt with below, is the application of the
modern tendency of a court, in its search for an
• Enquiries as to past treatment of boundary features.
answer, to admit, rather than to exclude, extraneous
evidence of a boundary location.
The exact position of a boundary will often be very
hard to pinpoint. The Land Registry Practice Guide
(no. 40 - Land Registry Plans) provides a degree of
assistance, but points out that the term “boundary” has
no special meaning in law. It has two aspects to it - the
legal boundary, which is rarely identified in the title
If you require advice on insuring freehold covenants
or other types of title issues for example village
green and prescriptive rights to light please contact
David Turschwell, (Solicitor), Director on:
T: 020 8953 8233
M: 07720401916
E: david.turschwell@titleandcovenant.co.uk
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It is this latter point that arose in the case Piper v
erected some time after the 1908 conveyance by one
Wakeford. The boundary in question had been
of the parties to it. The court therefore felt that it was
created, unclearly, by a conveyance of 1908. The
permissible to infer from this that the erection of the
conveyance plan was of poor quality, and was, in
fence demonstrated an intention to clarify the precise
any event, incorporated in a confusing way to show
location of the unclear boundary. Whilst, in the normal
property conveyed “for the purposes of identification
interpretation of contracts, subsequent conduct is
only but not of restriction or enlargement more
inadmissibile as evidence to establish the intentions
particularly delineated in the said plan”. The boundary
of the contracting parties, when seeking to ascertain a
was incapable of being established from the 1908
boundary, an exception applies.
conveyance itself. In such a case, however, the court
needs to find an answer. It cannot
Where disputes as to a boundary
simply leave the matter undecided.
location arise, a lawyer would do
“The court therefore felt well to follow the sound advice of
Therefore, evidence as to how
adjacent owners subsequently
that it was permissible Lord Justice Carnwath in the Liaquat
treated the ownership and
to infer from this that Ali case: “It is sadly a commonplace
location of boundary features
that boundary disputes can be
t h e e r e c t i o n o f t h e fought with a passion which
may be indicative of ownership
fence demonstrated an seems out of all proportion to the
and location itself. According
to the Court of Appeal (in the
intention to clarify the importance of what is involved
case of Liaquat Ali v Robert
in practical terms. In such cases,
precise location of the professional advisors should regard
Lane [2006] EWCA Civ 1532):
unclear boundary.”
“In the context of a conveyance
themselves as under a duty to
of land, where the information
ensure that their clients are aware
contained in the conveyance
of the potentially catastrophic
is unclear or ambiguous, it is permissible to have
consequences of litigation of this kind and of the
regard to extraneous evidence, including evidence of
possibilities of alternative dispute procedures.”
subsequent conduct, subject always to that evidence
being of probative value in determining what the
parties intended.” In the Piper case, sufficient evidence
Written by Alan Riley - Property Law Consultant
www.propertypsl.co.uk
existed to show that a fence had most probably been
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