By Rob French, Senior Partner, Party Walls & Neighbourly Matters, Delva Patman Redler
There is a regular cliché which is drawn out in many a high-profile article or in public forums which suggests that most boundary disputes are actually a result of neighbours’ dislike for each other, rather than the product of a genuine concern about an incorrectly positioned fence line. Having worked on many boundary disputes I can, however, confirm that this cliché is in fact often a true reflection of the realities of such matters.
This said, however, what is also true is that “money talks” and if you can make a convincing case for the realities of any boundary dispute matter and explain the likely costs of litigation – win or lose – to an owner, it is possible to make most owners see sense.
In my view the role of a boundary expert is therefore, on the one hand, to make as accurate a boundary assessment as is possible with the evidence available, but on the other hand to manage egos and expectations to try to encourage a boundary agreement which best serves all parties. This agreement may not be, and is often not, represented by the determined boundary line.
In covering the topic of boundary determination, one could dwell on the sensationalism of the recent contentious cases – such as Lofthouse Vs Hartley – and delve into the psychology behind such cases, or cover the detailed analysis of aerial photo interpretation and a snapshot of Ordnance Survey mapping etc. All such articles have been very interesting and factual in their own right, but what we really need to know is what actually resolves such disputes and what are the practicalities for boundary determination. So here is a real-world insight into the holistic approach surveyors should take towards resolving boundary disputes, along with some real examples of the key information and exercises which have been used to successfully resolve such cases.
If neighbourly counselling is not going to work, first and foremost the absolute most important process for resolving boundary disputes is a full 3D laser scanner survey.
I have seen many surveyors attempt to resolve boundary disputes with either single or multiple point-to-point measurements using disto’s or tapes to measure existing features on site and to attempt then to compare these to historic photographs, land registry plans or measured deeds. This, quintessentially, outlines the all-too-common limited approach to boundary survey analysis. It is the focus on the sites and boundaries in the holistic view that is usually the key to resolution. When I say ‘holistic’, I am referring not only to the site’s abutting the boundary in dispute but also the other properties/plots in the near vicinity.
Without a highly accurate scan of preferably both sites which adjoin a boundary in dispute, it is very difficult to build an entire picture of the relationship between the two sites and therefore interpret the boundary in dispute. Without understanding the sites and the boundary in their entirety it is impossible to understand any individual section of the boundary in isolation.
On every boundary dispute a full 3D laser scan of the boundary in question, and the adjoining sites, should be taken from the outset. From these scans, a highly accurate existing topographic survey should be produced. This then forms the real existing world basis of the current site arrangements against which all legal documentation and any other documentation can be compared.
Limited point-to-point measurement has many shortcomings. Firstly, by their very nature, they are restricted to only two points on any site and so impossible to relate to any other point on site without additional measurements being taken. In addition, the measurer may inadvertently not record an entirely horizontal measurement or, unbeknown to them, not record an entirely parallel set of measurements across the length of the site. In contrast, the 3D laser can effectively produce a 360° real world 3D image of the whole site, both horizontally and vertically.
As the laser scanner spins 360° horizontally, it also spins on a vertical basis throwing out millions of point-to-point lasers, recording millions of points in a cloud of data for every scan. Therefore, a simple scan of a boundary at regular intervals is not particularly time intensive but allows a hugely accurate picture of the plots in question to be developed with almost photo like 3D quality. The 3D scan data can then be used to produce highly accurate topographical surveys. The scan data can also be saved for later use to take additional dimensions or add additional detail to drawings and the misinterpretation of measurements is almost impossible when an experienced CAD technician interprets the data.
The other advantage of 3D laser scanning is its ability to interact with GPS co-ordinates. At Delva Patman Redler, we use a military grade GPS system to pinpoint any point on site within an accuracy of + or – 30mm. This then allows us to overlay the topographical survey produced onto an ordinance survey map to as high a degree of accuracy as is possible in reality. Whilst we all accept that OS data has limitations, it is very helpful to know that your overlay starting point is as accurate as can be.
3D Scanning, GPS Co-ordinating and Overlay Exercises
On larger boundary disputes, GPS tracking is also very useful to allow a series of separate scans to be stitched together and their inter-relation double checked. In one of my recent cases a very large car park was being developed and the neighbouring owners insisted that the developer’s interpretation of the boundary, which ran against an access way to the rear of the neighbouring residents’ gardens, encroached into their legal right of way. In this case, the entire length of the boundary was scanned using 3D scanning, from within the carpark and also through the existing boundary metal palisade fence, to capture all measurements including to the rear elevations of the neighbouring properties. Scans were then continued around the block and up the street elevation to the front of the neighbouring residents’ properties. Using GPS coordinates we double checked that the extensive series of scans had correctly correlated with each other so that we could very accurately plot not just the boundary in question, but also the entire size of the neighbouring residential plots. We then managed to find an originating transfer deed for one of the residential properties in question relating to when the plot was originally transferred from the estate developer to the first owner in the 1930s. Usefully this originating transfer deed included a measurement for the depth of the plot.
With the help of a magnifying glass, two further adjoining plot lengths were also found on the original development plot plan, also from the 1930s, along with a measurement for the width of the right of way. These plot length measurements matched the depth of the single property transfer deed. It was therefore possible to establish that the plots were all generally of a consistent length and that there was clearly a 24ft right of way running across the rear of each garden. From the accurate 3D scans, it was established that the street elevations of both the properties and the front garden walls/drives were generally consistent and in line, however, the rear garden fences of the properties were generally staggered and not consistent. We considered that it was not possible for the front boundaries of the properties to have moved and so considered if the rear fences of the neighbouring gardens had encroached into the right of way over the years.
When the lengths of these plots were taken by way of the accurate scans and overlayed onto the topographical survey it was found that the plot lengths were in fact in the most part considerably longer than the original transfer dimensions. We therefore concluded that rather than the developer pushing the boundaries into the right of way, in fact it was the residents who had, over the previous 90 years, gradually encroached into their own right of way.
As can be seen, this is an example where stitching together a series of scans can help position the boundary, not only accurately in the confines of the area adjacent only to the boundary in dispute, but also to the much wider extent of the entire estates within which disputed boundaries and associated transfers relate. Without 3D scanning it is unlikely that this dispute could have been concluded with such a high level of certainty.
Unfortunately, the neighbouring owners were not willing to accept this compelling evidence as to the true boundary line between the right of way and the development site and so the example does not have a happy ending, but it remains a good example of how 3D scanning and GPS tracking could have assisted in resolving the dispute.
Originating Transfer Plans and Estate Plans
The above example also demonstrates just how important originating transfer and estate plans are in boundary disputes. If you are in possession of the original estate plan you can look at this as a whole to understand, generally, how plots were developed, split and ultimately transferred.
Originating transfer plans should always be the first port of call for a boundary expert as, in essence, this should show the paper legal boundary for the full perimeter of a plot, which can only the be changed by agreement or by way of adverse possession.
A transfer plan will supersede an estate plan as generally the estate plan will indicate what was intended to be transferred to each owner, but the transfer plan will show what was transferred. If the two accurately correlate, then they combine to produce very strong evidence indeed.
Whilst superseded by transfer plans, estate plans can be helpful where originating transfer plans are not available. For instance, you may be looking into a boundary dispute on a single property and not able to obtain a copy of the original transfer document, but if you have the entire estate plan you may see that, for example, along a terrace of properties the estate plan indicates that every property was to be a certain plot size. You can then potentially reasonably conclude that these plot sizes are likely to be relevant to the property in question. From the estate plan you can also establish if, generally, the plots were parallel and square and, most usefully, whether the distance between properties was generally always intended to be equal. Estate developers often split plots up by using general rules and if these rules can be established then this can give strong clues as to the boundaries for each property within the estate.
At this stage it is worth noting that assumptions are never wise in boundary analysis matters but, in my view, where limited evidence is available, they can help build a picture of the likely boundaries which can then be tested.
As an example of the usefulness of estate plans, I worked on a boundary dispute between two semi-detached properties which related to the ownership of the access way which ran between the two properties. Over the years it appeared that access ways between many of the properties on the estate had been altered due to the use of these sections of land more so by one neighbour than the other. For example, fences being erected creating access ways for cars for one owner but only pedestrian access for the opposing neighbour or a front garden wall being reconstructed to an alternative boundary line than the wall it replaced. In this case I undertook a full review of the estate plans available, which showed that the original intention of the estate was for all access ways between properties to be split equally between the neighbouring owners. With unreliable evidence as to a consistent use of the accessway by one side more than the other to prove any adverse possession considerations, this was enough to convince the judge that the boundary line equally split the access way.
Why Did You Throw Your Deeds Away?
Perhaps one of the greatest and widespread errors made by property owners was the large scale discarding of property deeds when Land Registry started to keep electronic titles and plans on its website from circa 2003. More often than not, boundary disputes therefore need to be investigated without the benefit of any historic legal documentation. This is not ideal but it is reality and so we must therefore now explore the well covered and numerous problems associated with Land Registry plan accuracy and reliability.
Land Registry digital titles mark the boundary line with a thick red line usually around the latest available Ordnance Survey map at the time of registry. As we know, Ordnance Survey, in the first instance, can be very inaccurate itself due to the fact that it is mostly based on aerial photography and also because it merely plots existing features and does not in any way claim these to represent true boundaries.
Given the angles from which aerial photography is taken and the difficulties in interpreting perspectives from photographs, Ordnance Survey itself states that the accuracy of its surveys is limited to 1m in urban areas. As most boundary disputes fall well below this tolerance, Ordnance Survey should only be used to gather a general idea of boundaries (as per the general boundaries rule) and should never be relied on to accurately determine the boundary’s location.
This considered, along with the fact that the red line itself can actually be scaled to circa 500mm-1000mm on the ground, gives some idea as to just how limited these boundaries really are; especially when neighbours are arguing 50mm either way and expecting a determination to an accuracy of the thickness of some DIY garden string.
Aside from the inaccuracy of Land Registry title plans, the red lines drawn on Land Registry title plans can often be misinterpreted by homeowners. I have seen these red lines drawn either astride the boundary line or entirely inside the boundary line and so it is important to establish which method of marking has been used, before attempting to use this as a general boundary guideline.
All the above said, with the absence of any other legal evidence as to a boundary location, Land Registry title plans may be the only general guide available to indicate the general boundary location. Accurate or not they may therefore be essential evidence.
Use of historic surveys
Another very important and practical way in which many boundary disputes are resolved, is to ensure that both owners are asked for any historic surveys that have been undertaken of the site. Neighbours sometimes wrongly assume that such surveys won’t be of use and that a fresh review of the boundary in question is needed. However, we have seen boundary determinations where even a limited and dated measured survey has been the key to resolving the dispute.
In one such dispute over a boundary wall, I established that the rowing neighbours agreed that the old boundary wall, which had been demolished, was the correct boundary but disputed that the new wall had been built in the same location. I discovered an old measured survey for a refurbishment project which precisely plotted the original boundary wall in question. The neighbours agreed that this survey was accurate and by overlaying this onto our existing topographical survey we were able to prove that the new wall was, within tolerances, in the same location as the old and this helped resolve the dispute.
A Boundary Line Must Run Through the Centre of a Party Wall, Mustn’t It?
In a case where the owners are not in possession of any plans or records and the disputed boundary is between attached properties, there is very useful practice of resolving disputes by extending out the lines of the party wall between two semi-detached properties. Numerous boundary disputes have been resolved by the very simple process of scanning a property both internally and externally and then, if the Land Registry indicates generally that the boundaries are parallel with party walls, one can merely extend the central party wall line of junction to the front and rear extremes of the properties in question. This then creates a boundary line which is very, very difficult to argue against logically. Judges tend to hate boundary disputes and therefore like simplicity.
Google Earth and Google Street View
Whilst it seems too obvious to say, the development of satellite and street view websites has added an invaluable additional means of checking for historic changes to boundary features. I have used Google Street View’s “back in time” function on many occasions to assist in building up supporting evidence for boundary determinations.
One size doesn’t fit all
Ultimately, each boundary dispute is entirely unique. So in every case it is very important to collect all relevant data from the site and all relevant documentation and legal paperwork, then undertake a comprehensive review and approach with an open mind as to what pieces of information could be the key to resolving the dispute. Ask the ‘obvious’ questions to the owners. They may have additional information which they may not have thought would be useful but could be key to resolving the dispute.
Surveyors – don’t get involved in the legal matters
In my view, surveyors should not get involved in legal matters with regard to disputes. A surveyor’s responsibility is to interpret where they believe the paper legal boundary lies between two properties and then leave it to specialist solicitors to then identify if this paper boundary represents the legal boundary today or if any other legal principles have led to this paper legal boundary being altered. I suggest always making clear that an assessment of the boundary has not taken into consideration any matters such as adverse possession, implied boundaries, agreed boundaries or any other legal principles. I regularly mark/hatch on plans areas in dispute where adverse possession could be a matter for further consideration and may even highlight the principles that may contribute towards such a claim, but ultimately the surveyors should always make clear that matters of law should be dealt with by those who are trained, and more importantly insured, to deal with matters of law.
Lastly, and probably most importantly, the best way to increase the chances of resolving a boundary dispute between two owners is to represent your analysis of the boundary in a very clear plan.
Represent each stage of any boundary analysis with clearly marked overlay drawings, indicating the original topographical drawing with the overlays in different colours so that neighbours can clearly see the build-up of a picture of the boundaries and understand how conclusions have been made.
Ensure that you include a clear key and make clear the source of each separate overlay drawing. It is then important to issue a final drawing showing the boundary interpretation with a clear boundary line related to their properties, highlighting physical features on the ground which they can clearly relate to and physically see on site.
The clearer the conclusion the more chance the owners have of relating to this and accepting the determination. Confusion amongst the owners usually leads to a more entrenched dispute.
Your interpretation of the boundary could be correct, accurate and based on perfect evidence, but unless you can accurately relay this to the owners in a manner which they can relate to and understand, they are highly unlikely to be able to resolve the dispute between themselves.
Yes, it is often difficult to convince neighbours in dispute over boundaries to adopt an amicable approach to resolving disputes, but the best way us surveyors can help is to provide clear, accurate and reasoned technical advice to help them understand the realities of their dispute and hopefully encourage them to avoid litigation.