By Sarah Sherlock and Ruth Cannon BL
What is the one thing that you, unquestionably, have in common with your neighbour? Your mutual boundary. Therefore, it is important to note that any unilateral changes may result in an entirely unexpected but avoidable dispute.
In unsettling times such as those we presently find ourselves trying to navigate, with COVID not going away any time soon, some will seek the solitude of their garden to unwind. Understandably so. Others will seek to use the time to catch up on some domestic matters. None too surprisingly, others will go all out and launch into replacing the odd fence with a new wall to “spruce-up” the previously neglected patch at the end of the garden that has not been attended to for years.
Before embarking on any “boundary work” it is wise to consider who owns what and what are the likely outcomes of doing anything to the boundary without engaging with your neighbour first!
A boundary is something that shows where an area ends, and another area begins, or indeed the limit of an area where two things become different.
When referring to real property, things are further complicated because there are, of course, two boundaries to consider. The legal, which is an imaginary line of no thickness separating two properties. The other is the physical and, must have some degree of thickness e.g. block wall, fence, etc.…
Just as there are two boundaries to consider, there are of course, two separate but inextricably linked requirements to establish certain specifics that many often trivialise and/or forget to consider.
1. What exactly is the legal boundary?
2. What exactly is the physical boundary?
Both questions are in-fact best investigated by different professionals, the legal by your legal adviser and the physical boundary by a land or geomatics surveyor.
Legal boundaries …
Many boundary disputes are based on the mistaken premise that the boundary is as defined on Land Registry Folio maps. Although most land in Ireland is registered land, and the Land Register kept by the Property Registration Authority (PRA) provides great assistance in establishing ownership of, and rights over, registered land, it is of little assistance in relation to determining exact boundaries. This is because the Registration of Title Act 1964, governing registered land, specifically states that boundaries as shown on Land Registry maps should not be treated as conclusive. In practice, there is little knowledge of this statement, or understanding of its implications.
What it means in practice is that Land Registry boundaries are of little or no help in resolving boundary disputes, the legal issues in relation to which are exactly the same, irrespective of whether the property is registered or unregistered.
What needs to be looked at instead are two things:
(i) the legal or paper title boundary, as set out in title documents other than the Land Registry Folio
(ii) the physical boundary.
The documents which need to be looked at in determining boundaries are prior title deeds relating to the land. In the case of unregistered land, proof of title is always by reference to such deeds. With luck, the deeds will contain a proper map setting out clear dimensions. This is regrettably not always the case. As regards registered land, where transfer is usually by reference to a Folio number, what needs to be looked at are the title documents.
Often, because of poor mapping, it is not possible to identify a clear paper title boundary. Furthermore, even where a clear paper title boundary can be identified in earlier title deeds, it cannot be assumed that this represents the current boundary. This is because of Section 13 of the Statute of Limitations 1957, which provides that paper title to land is extinguished where a third party has been in adverse possession of that land for 12 years or more (30 years or more where the paper title owner is the state). The consequence of this provision in the context of boundary disputes is a significant one. It effectively means that, if a physical boundary has been in place for the previous 12 years, this will supersede any previous paper title boundary. There are exceptions to this e.g. where permission has been granted by the paper title owner to temporarily vary the boundary or where the physical boundary variation has been effected as a result of a fraud, but they are few and far between.
If the biggest error giving rise to boundary disputes is the belief that Land Registry boundaries have legal effect, the second-biggest error is the belief that boundaries as shown on title deeds permanently remain conclusive. Although initially determinative of boundaries (assuming of course that they are sufficiently clearly defined in the title deeds) there is no guarantee that they will remain so.
Any court dealing with a boundary dispute will want to know two things. Firstly, to the extent that it is ascertainable, what is the paper title boundary? Secondly, what is the current physical boundary, and how long has it been in place? If the current physical boundary has been in place for more than 12 years, any finding a court makes on the paper title boundary will most probably be moot, made only for the purpose of pointing out that this boundary, while operative at one point, no longer applies. Nonetheless, it is important, even where there has been a clear physical boundary in place for over 12 years, that efforts be made to identify the preceding paper title boundary, so that a court can reach a determination in full knowledge of all relevant information. If this is not done, a court may quite possibly adjourn the case to obtain further information about the paper title, with a resulting increase in costs for the client. It is therefore important to be prepared on this matter in advance.
The importance of historical physical boundaries cannot be overestimated. It is extremely important that a surveyor retained in boundary disputes not merely examines the current boundary, but also makes efforts (insofar as possible) to identify the historical physical boundary. This may require recourse to physical evidence on the ground, old photographs, old OS maps, Valuation Office maps and aerial photographs, as well as title deed maps. If the current physical boundary can be shown to have been in place for more than 12 years, it is not usually necessary for the historical examination of the physical boundary to go back further. Exceptions might be if the adjoining property was held under a short-term lease, by a minor, or by someone of unsound mind, at any point during the 12-year period. If the current physical boundary has not been in place for more than 12 years, and maps on title deeds are inconclusive, it may be necessary to carry out a much more detailed historical investigation. This can be costly, time consuming, and ultimately fail to produce any definitive result. In such a case, mediation is the obvious solution. Unfortunately, convincing emotionally involved parties that their boundary dispute is not necessarily capable of a definitive resolution by a court, can be a difficult one!
Physical boundaries …
Unlike the legal and paper boundaries, save where none exist, physical boundaries tend to be tangible items on the ground and therefore, are capable of being measured and recorded. Settled boundaries is another name commonly used to describe the physical boundaries, although it is fair to say that some are more “settled” than others.
The surveyors who generally tend to measure and record boundaries are frequently referred to as land1 or geomatics surveyors. Many may feel that a quick “look” to confirm the boundaries are “okay” is the extent of a boundary survey – that is not so and do not fall foul in believing that it is, for it certainly is not.
To properly measure, record and confirm the boundaries pertaining to a property, you will require a ground truth survey (GTS). A GTS is a survey completed using specialist survey equipment, to a specified scale and usually in either a local or defined coordinate2 system. The SCSI/RICS have a detailed survey detail accuracy band table, which specifies a range of different scales depending on the type of survey. Boundaries tend to fall anywhere between 1:50 (Band D) for determined boundaries to c 1:500 (Band G) for more generalised work, with 1:100 (Band E) being a typical output for most. The OSi maps, commonly used in conveyancing, are typically 1:1000 urban and 1:2500 rural and devoid of the inner detail that the GTS will have captured, which is what is required when a boundary issue arises!
Assumptions around geo-spatial accuracy and or consistency must not be made – accuracies and scale must be stated, together with the date on which the measurement took place. For example, master planning drawings may be done at a scale (e.g. 1:2500 or Band I) that is inconsistent and incompatible with a survey for a conclusive boundary at (e.g. 1:50 or Band D), yet neither are wrong; they are both suitable but suitable for different purposes. If you have a topographical survey at a scale of 1:500, you will need the property remeasured at the appropriate scale if two neighbours wish to settle on a precise and accurate boundary to say, +/-25mm.
The features observed during a GTS can be a little invasive, yes, the hedgerow will be investigated to see if there is a wall situate behind it or perhaps the presence of a fence running throughout it. They all matter and are useful to the surveyor when trying to piece together the plot and how it evolved with the passage of time. It is unusual for a property to remain unchanged and sometimes these changes hold all the clues.
Of course, the surveyor’s job is significantly less complicated if the property owner can assist in answering any number of questions that the surveyor will have, which may seem very curious at times, e.g. “the wall looks different to the other three sides, why is that? Yes, that house was built first and when we purchased our plot, we didn’t need to build a wall on that side!”
After the GTS, the surveyor will then prepare a GTS Plan, which looks like a detailed map of the property, at the time of survey. Of course, this alone is of little use as it needs to consider the relevant Title information too. It may be necessary to examine the GTS Plan against other information too e.g. planning, neighbourly agreements, etc.… When examining it against the Folio File Plan, unless it is a conclusive registration it is entirely normal and indeed okay should it not “exactly” align3. Only when you have all the above done can you, or should you, consider informing your neighbour as to where the “exact” mutual boundary is situated!
1 In-fact, the PRA Mapping Guidelines recommend “Maps submitted for registration be prepared and certified by competent Land Surveyors”. Mapping Guidelines – Appendix 1- 2.2 (b).
2 ITM is the national coordinate system in use in Ireland. It is a GPS compatible mapping system and minimises distortions associate
3 https://www.osi.ie/about/key-documents/joint-statement-of-osi-and-pra/ Accessed 15.08.2020
https://www.osi.ie/about/osi-positional-accuracy/ Accessed 15.08.2020