Boundary disputes
Resolving Boundary Disputes in Cornwall and Devon
A boundary dispute is rarely about the land alone. It is about a hedge that has always been there, a fence that has moved, a plan that does not match the ground — and a neighbour you will go on living beside.
A boundary dispute is a disagreement about where the legal boundary between two properties lies, or about who owns a boundary feature such as a hedge, bank, wall or ditch. Land Registry plans usually show only general boundaries, so the answer normally comes from the deeds that first divided the land, the features on the ground, and legal presumptions such as the hedge and ditch rule. Laurence Gray acts for landowners in boundary disputes across Cornwall and Devon, from first advice through mediation to court.
What the plan does — and does not — show
Many owners are surprised to learn that the red line on their Land Registry title plan is not a precise record of their boundary. Most registered boundaries are “general boundaries”: the plan shows roughly where the boundary runs, not its exact position on the ground. On a plan drawn at 1:2,500 — the usual scale for rural land — a line half a millimetre wide covers more than a metre of ground.
The legal boundary is normally found in the conveyance or transfer that first divided the land, sometimes a century or more ago. Its words and its plan are read together, in the light of what was on the ground at the time. Where the plan is marked “for identification purposes only”, or the words and the plan point in different directions, the physical features that existed when the land was divided can be decisive — which is why old photographs, historic maps and aerial images matter so much.
It is possible to apply to HM Land Registry for a determined boundary, which fixes the exact line using an accurate surveyed plan. Your neighbour is notified, and if they object and the objection cannot be resolved, the application is referred to the First-tier Tribunal (Property Chamber) to decide.
Hedges, banks and ditches
In Cornwall and Devon, boundaries are more often hedges and banks than fences. A Cornish hedge — a bank of earth faced with stone and topped with shrubs or trees — can be well over a metre wide at its base, and Devon’s hedgebanks are much the same. When the boundary feature is that wide, the question of which side of it the boundary runs becomes a question about a strip of land along the whole length of a field.
Where the deeds do not settle the point, the courts apply a presumption more than two hundred years old. A landowner digging a boundary ditch was assumed to dig it at the very edge of his own land and throw the soil up on his own side to form a bank, often planting a hedge on top. So where a hedge or bank stands beside a ditch, the boundary is presumed to lie along the far edge of the ditch, and the owner of the hedge owns the ditch too. In 1999 the House of Lords held that the presumption can survive even where the conveyance plan is based on the Ordnance Survey map, because the Ordnance Survey draws its lines along the middle of physical features and does not set out to show legal boundaries.
The presumption is only a starting point. It can be displaced by the wording of the deeds or by other evidence, and it does not apply to a natural stream or to a ditch that was never dug as a boundary. Nor is it a licence for self-help: most countryside hedgerows are protected under the Hedgerows Regulations 1997, and removing one can require formal notice to the council.
Fences, walls and encroachment
A fence rebuilt a foot over, a wall moved when a new drive was laid, an extension whose footings creep across the line: encroachment is the most common way a boundary dispute begins. The court can declare where the boundary lies, order an encroachment to be removed, and award damages. Where an encroachment is small and removing it would be out of all proportion to the harm, damages are sometimes awarded instead of an order to take it down.
Evidence is key and can require research into the historic position going back many decades before. Photographs showing where fences stood, measurements from fixed points, and the recollections of people who have known the land are all to be considered. Direct action by, for example, pulling down a neighbour’s fence yourself, however, can put you in the wrong.
Trespass
Many boundary disputes are, at heart, trespass claims. One neighbour says the boundary lies in a particular place because the other has crossed it — by putting up a fence, building a wall or an extension, laying a drive, or taking over a strip of land that is not theirs. Placing a structure on a neighbour’s land without their consent is a trespass, and while it remains there the trespass continues.
The court cannot decide whether there has been a trespass until it has decided where the boundary lies, so the two questions are usually argued together. If the line is found in the claimant’s favour, the court can order the fence or building to be removed, grant an injunction to prevent further trespass, and award damages. Trespass does not depend on proving loss, so even a narrow strip can be worth defending, although the cost of doing so should always be weighed against what is at stake.
Adverse possession
Where a fence or hedge has stood in the wrong place for many years, the dispute is often not only about where the deeds put the line, but about whether the neighbour who has had the use of the land can now claim it. A person who occupies land as if it were their own, without the owner’s permission, can in time acquire title to it: after twelve years for unregistered land, while for registered land a squatter can apply after ten years but the registered owner can usually defeat the application by objecting. In boundary cases the exception that matters is where the squatter reasonably believed, for at least ten years, that the land was theirs, and the land adjoins their own.
Laurence acts both for owners resisting claims and for those making them. See adverse possession for how claims work, what to do if you receive a notice from the Land Registry, and how to protect your land.
How boundary disputes are resolved
“Boundary disputes are a particularly painful form of litigation.”
Lord Hoffmann went on to observe how high feelings run in these cases, and how often the money spent on them is out of all proportion to the land at stake. A quarter of a century later, both remain true. Laurence will work towards resolving your dispute whilst keeping the costs being incurred firmly in mind. Resolution can include:
- Agreement. A clear letter, a site meeting or a meeting of surveyors resolves more disputes than people expect. The result should be recorded in a boundary agreement with a proper plan and, where appropriate, registered at HM Land Registry.
- Expert determination. The parties can agree to appoint an independent surveyor to decide where the boundary lies, and to be bound by the answer — usually far quicker and cheaper than a trial.
- Mediation. A mediator helps the parties reach their own settlement, which can include things no court could order: an agreed line, a shared maintenance arrangement, a new fence at shared cost, or a payment. Laurence represents clients at mediation — see representation at mediation.
- Tribunal or court. Where a Land Registry application is disputed, the case goes to the First-tier Tribunal (Property Chamber). Otherwise, boundary claims are brought in the County Court, which can declare where the boundary lies, grant injunctions and award damages.
How Laurence can help
- Reading the title, including old unregistered deeds and conveyance plans, and tracing how the land was first divided
- Instructing the right surveyor, and gathering historic maps, aerial photographs and witness evidence
- Setting out your case to the other side under the pre-action rules
- Negotiating and drafting boundary agreements, and making applications to HM Land Registry
- Representing you at mediation
- Bringing or defending claims in the County Court and the First-tier Tribunal