Common Law Boundary Presumptions
Published: 31-05-2018 | Updated: 03-09-2018
This article provides an explanation as to what the expression "Common Law Boundary Presumptions" means, and how this is applied to Boundary disputes. The article explains when common law presumptions can be relied upon and what information and other factors must first be considered.
Sources of Law in England & Wales
The law of England and Wales comes from two distinct sources:
1. The Legislature, i.e. Parliament, who introduce a Bill that passes through various stages in Parliament. When it is approved it becomes the type of law known as Statute, or an Act of Parliament.
2. Decided Cases, i.e. Common Law. The Common Law of England and Wales is made up of Decided Cases adjudicated in the High Courts, i.e. decisions of the House of Lords and of the Court of Appeal, the two highest courts governing the law in England and Wales.
The law relating to property boundaries revolves around land law, which is extremely complex. Statute has not been particularly helpful here, the most recent boundary law legislation being a small section of the Land Registration Act 2002 and the Land Registration Rules 2003.
Land Registration Act 2002
Section 60 states:
(1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section.
(2) A general boundary does not determine the exact line of a boundary.
(3) Rules may make provision enabling or requiring the exact line of the boundary of a registered estate to be determined and may, in particular, make provision about -
- the circumstances in which the exact line of a boundary may or must be determined
- how the exact line of a boundary may be determined
- procedure in relation to applications for determination, and
- the recording of the fact of determination in the register or the index maintained under section 68.
(4) Rules under this section must provide for applications for determination to be made to the registrar.
What the above means is that the Land Registry Title Plan shows the property boundaries in a general way only, i.e. not precisely, but merely as a inked line of red edging within the black line of edging on an Ordnance Survey map. The Title Plan contains no measurements, angles or dimensions, and rarely contains T or H marks. The boundaries shown on the Title Plan are not intended to be precise and therefore, other than a general guide, they are not overly helpful in resolving a boundary dispute that involves a long, thin, strip of land.
Many of our customers are disappointed to discover that Title Plans do not generally resolve boundary disputes. More helpful, however, is the combined information contained in the Title Register, Title Plan, Conveyancing Deeds, Deed Plans, Lease and Lease Plan (if the property is leasehold), and reference to legal boundary presumptions, all of which are contained within our Boundary Search.
Land Registration Rules 2003
The pertinent rules are found in Part 10. They deal with the procedure to have one or more of the property boundaries Determined, i.e. to appear on the Title Plan with precision. This is not helpful to resolve a boundary dispute, however, as the adjoining parties must first resolve the dispute and then apply to the Land Registry to record the agreed boundary positions, which the Land Registry will only do if they agree with the property owners' resolution.
Decided Cases (the Common Law)
Where Acts of Parliament do not sufficiently deal with aspects of the law, then recourse must be had to the Common Law, i.e. to Decided Cases of the High Courts. Only decisions of the High Courts have sufficient authority for other courts to follow their decisions when dealing with the law.
When a person is unable to resolve a boundary dispute by reference to the Land Registry documents or by a physical examination of the boundaries, on site, he must look to the Common Law. Fortunately, the high courts have made numerous decisions relating to boundaries, and unless the courts can sufficiently distinguish the circumstances of one case from another, then they will be bound to follow the earlier decisions of the High Courts. Thus, unless there is evidence to the contrary, the decisions of former legal cases will apply.
We charge £89.95 for a Boundary Search. The search includes all of the available registered documents for each of the adjoining properties, and full details of Common Law Boundary Presumptions that will be assumed to apply unless there is evidence to the contrary (usually from the documents we provide to you).
The documents included are:
- Title Register and Title Plan for each property.
- Conveyancing Deeds and Deed Plans for each property.
- Lease and Lease Plan for one of the properties (if either of the properties is leasehold).
- Detailed and illustrated Guidebook including chapters containing details of Common Law Presumptions, and scores of samples.
For more information please visit our detailed review of Boundary Searches.