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Boundary Disputes

Independent Expert Reports

5^th September 2020

Dear Sir and Mesdames

Derbyshire

1. Instruction

2. To prepare a joint expert report in respect of the boundary.

3. Qualifications

4. Steve Butler is a Chartered Surveyors with some years’ experience of preparing boundary reports.

5. Law

6. Mr Justice Barker (at Birmingham High Court) summarised much of the boundary law that had gone before in the case of Acco and Severn in 2011. I shall follow his guidelines for determining a boundary as I do in preparing any reports on boundaries:

1. Where the property in question is registered land, the file plans show only general boundaries and not the exact line of the boundaries unless the property is said to be “more particularly described in the plan.”

2. Similarly, Ordnance Survey plans, if not forming part of the registered title as filed plans, are no more than a general guide to a boundary feature, and they should not be scaled up to delineate an exact boundary.  This is because the lines marking the boundaries become so thick on being scaled up as to render them useless for detailed definition.

3. In order to determine the exact line of a boundary, the starting point is the language of the conveyance aided, where the verbal description does not suffice, by the representation of the boundaries on any plan, or guided by the plan if that is intended to be definitive.

4. If that does not bring clarity, or the clarity necessary to define a boundary, recourse may then be had to extrinsic evidence - such as topographical features on the land that existed, or maybe supposed to have existed, when the dividing conveyance was executed.

5. Admissible extrinsic evidence may also include evidence of subsequent conduct where of probative value in showing what the original parties intended.

6. Evidence of later features - that is, later than the earliest dividing conveyance - may or may not be of relevance.  The probative significance of such evidence depends upon the extent to which, if at all, the dividing conveyance, or evidence of its terms, exists.

7. Where a boundary is in dispute, it is important to bring certainty to the determination by proclaiming the boundary and not leaving the plot “fuzzy at the edges” (Neilson v Poole (1969) 20 P&CR 909, Megarry J).

8. Even where a boundary line may be determined by reference to a conveyance, other evidence may be admitted and probative in establishing a different boundary obtained by adverse possession, showing enclosure of the land in denial of the title of the true owner.  As the phrase implies, title is established by intentionally taking exclusive possession of land without the consent of, and adverse to the interests of, the true owner, and maintaining such possession continuously for the limitation period.

1. As to informal boundary agreements, the statutory requirement that contracts for the sale or other disposition of land be in writing does not apply.  That is because the purpose of such agreements is to demarcate an unclear boundary referred to in title documents and not to transfer an interest in land.

10. Such agreements are usually oral and the result of neighbours meeting to avoid or resolve a potential or actual dispute.  However, there is scope for a boundary agreement to be implied or inferred - that is, to be the logical conclusion to be drawn from primary facts.

11. When bearing these principles in mind as the platform on which to place and examine the facts, a judge should have regard to three further important yardsticks or rules of thumb.  These are:  (1) when considering any acquisition of property, it is vital to consider what a reasonable layman would think he was buying; (2) every case turns on its own facts; and (3) the task of the court is to assess all available and admissible material in arriving at its answer, and then to achieve the correct answer.

7. Documents

8. The following documents may also be relevant to the matter:

Conveyance of 20 dated 22^nd November 1976

Conveyance of 22 is not available

OS Sheets from 1938 onwards. See www.old-maps.co.uk

Photographs supplied by

Survey Three site plan

9. Facts

10. The properties are semi-detached houses, not attached, on the east side of

11. The OS sheets suggest that the properties were constructed in the late 1930’s and their design is typical of properties of that era.

12. Inspection suggests that the properties 9 to 25 and 10 to 24 were identical semi-detached houses constructed by the same developer.

13. Inspection and the OS sheets suggest that the properties appear to have been set out with great precision.

14. The subject properties are set approximately 13’0 or 3.96m apart and any track in relation to each other is nominal.

15. The OS sheets imply that garages were not an original feature. They appear in various rear gardens of properties in the road over time. It is not entirely clear to what time that appeared in the rear gardens of 20 and 22. Various OS plans in fact contradict each other. They are shown on a 1957 plan but not a 1968 plan.

16. At some time, which is not clear, any fence that originally divided the properties was largely demolished and the then owners appear to have co-operated to allow vehicular access between the two properties.

17. The concrete strips on which the vehicles ran appear to have been laid by the same person.

18. Sectional garages that were constructed beyond the rear elevation of the two houses and close to an imaginary line running centrally between the two houses.

19. About ten years ago Number 20 constructed a side extension that occupied about 175cm of the then shared driveway with a further projection of about 25cm or so to the edge of the gutter.

20. At some time in recent years the garages were demolished. Their outlines remain. It seems from casual inspection that the garages were constructed with different floors and perhaps not by the same person. They appear to have been slightly askew to each other and not symmetrical about an imaginary centre line between the two houses. The garage of 20 almost abutted an imaginary centre line between the houses.

21. Approximately level with the rear elevation of the extension at 20 and slightly north of the centre line between the two original properties is the remainder of a post of some type. Ms B states that it was once occupied by a short timber post to secure the garage doors.

22. Close inspection shows that there is a piece of reinforcing steel in the ground consistent with their previously having been a vertical concrete post in that position.

23. At the rear of the garages there is a timber fence that has been constructed in relatively recent years, about 1991 I believe, by a previous owner of 20.

24. Ms B has recently erected a gate on her side of the driveway the post of which is constructed immediately adjacent to the wall of the extension at 20 and beneath the projecting roof edge and gutter.

25. Mr and Mrs F claim that the post is beyond the boundary.

26. Ms B claims that the flank wall off the extension is the boundary, and Mr and Mrs F claim that the boundary should follow a line running centrally between the two houses.

27. The situation immediately before the construction of the side extension at Number 20 and before the demolition of the garages is shown on a plan drawn by Survey Three. I can find no obvious fault in the plan at the given scale having taken a number of measurements on site.

28. Analysis

29. The conveyance documents.

30. There is only one available document and it is useless for this task as it does not describe the plot other than by address and the area of the site. To be able to use the area of the plot to estimate its width there would have to be absolute confidence in the depth of the plot which may have changed since marked out.

31. Extrinsic Evidence

32. Inspection of the OS sheets and casual inspection of the street suggest that the properties 9 to 25 and 10 to 24    were laid out symmetrically to     . Each property also appears to have laid out symmetrically to the centre of a line running perpendicular to          and dividing each property that was not attached.

33. This is typical of the unimaginative layouts of the era that can be seen on many 1930’s estates. The architect is likely to have taken the length of the street and divided it into equal plots excepting those at the end of the row where one of the boundaries is likely to have to accommodate features of properties in other ownership.

34. I was unable to identify any original boundary features except perhaps the remains of a concrete post with steel reinforcing. I can not think of any other purpose this might have other than to be a concrete fence post. The positioning of the steel in the post is immediately adjacent to the north side of a centre line between the properties and would be consistent with a boundary post. Ms B    suggested that there had been a timber post in this area used to secure the garage doors. Whilst such a post might have existed, I was not able to find any trace of it. I could not imagine that the reinforcing steel related to such a post.

35. I do not consider that the existing timber fence is a reliable feature from which to accurately determine a boundary. It is a modern fence constructed in recent years to replace a previous fence that location of which can not be determined.

36. The fence meanders several times so it is somewhat difficult to say in which direction it actually runs although it runs close to the imaginary centre line between the properties.

37. I understand that the fence was erected by a former owner of 20 and he may well have erected it marginally within what he considered to be his own garden.

38. The position of any earlier fence or the conifer trees referred to by Miss B      can not be determined.

39. It is unclear when the garages were erected and strangely buildings approximating to the position of the garages appear on the 1957 OS sheet but not the 1968 OS sheet.

40. I doubt that the garages are an original feature of the properties. There is no evidence that other properties in the development all had garages in 1957 or 1968. I have scoured the 1930 OS sheets of other suburbs in Derby and found little evidence of garages being popular at that time.

41. Vehicles were not widely available before the Second War. Casual search of the internet suggests that car ownership increased from 1.0million to 2.0 million in the 1930’s compared to 33.0 million in 2019.

42. I suspect from the positioning of the garages and the remains of the bases that they were not erected by the same person and that they have been casually set approximately parallel and close to an imaginary line running centrally between the two houses. Photograph 1 supplied by Ms B    supports this as the garages shown have different front doors.

43. The extension at Number 20 appears to have been constructed so that the edge of the gutter approximates to an imaginary centre line between the two houses.

44. A laser set against the side wall of the extension and projected towards the garage would have struck the garage of 20 about nine inches or 23cm from the front corner nearest to 22.

45. Ms B    objected to the construction of the extension to such an extent that she was prepared to stand the expense of apportioning Survey Three.

46. I find it inconsistent with Ms B     objection to the extension that she was prepared to accept the projecting roof edge and gutter crossing the boundary. If the flank wall of the extension is the boundary then pushing gutter back behind the boundary would have in turn moved the flank wall of the extension and helped maintain the width of her driveway.

47. Before demolition of the garages and construction of the extension a purchaser on casual inspection would consider that the boundary ran somewhere between the two garages and that this would approximate to the centre of the then driveway between the two properties.

48. I can not see that adverse possession is an issue particularly as it seems that a previous owner of 20 erected the fence between the rear gardens.

49. Conclusion

50. Whilst the boundary could in theory run anywhere done the hardstanding between to the two properties, I am unable to see why it would not follow the centre line as appears to be practice on other properties in the road and widely across other towns where there are similar properties.

51. The positioning of the roof edge extension at 20 which was not challenged on the basis of encroaching over the boundary at the time of its construction is consistent with the centre line being the boundary.

52. I can think of no purpose for the reinforcing steel in the hardstanding other than being part of a fence post

53. Almost any other potential boundary between the centre line of the properties and extension at 20 would have passed through the now demolished garage at 20 if set perpendicular to the road.

54. There are no features other than the flank wall of the recent extension that would suggest that anywhere other than the centre line is the boundary.

55. On the balance of probabilities, I consider that the centre line between the two properties approximately 198cm or six feet six inches from each property is the boundary.

Statement of Truth

This report is prepared in accordance with the Royal Institution of Chartered Surveyors Expert Witness Practice Statement.

Steven John MacGregor Butler declares that:

1. I understand that my duty in providing written reports and giving oral evidence is to help the Court, and that this duty overrides any obligation to the party who has engaged me, or the party who has paid or is liable to pay me. I confirm that I have complied with this duty and will continue to comply with this duty.

2. I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not.  Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinion on the matters to which they refer.

3. I have endeavoured to include in my report those matters which I have knowledge of or which I have been made aware that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion.

4. I confirm that I am aware of the requirements of Civil Procedures Rule 35 and Practice Direction, of the Civil Justice Protocol for the Instruction of Experts to Give Evidence in Civil Claims and the Practice Direction on Pre-Action Conduct.

5. I have indicated the sources of all information I have used.

6. I have not, without forming an independent view, included or excluded anything which has been suggested to me by others (in particular my instructing lawyers).

7. I will notify those instructing me immediately and confirm in writing if for any reason my existing report requires any correction of qualification.

8. I understand that:

1. my report, subject to any corrections before swearing as to its correctness, will form the evidence be given under oath or affirmation.
2. I may be cross-examined on my report by a cross-examiner assisted by an expert.
3. I am likely to be the subject of public adverse criticism by the Court if the Court concludes that I have not taken reasonable care in trying to meet the standards set out above.

9. I confirm that I have not entered into any arrangements where the amount or payment of my fees is in any way dependent upon the outcome of the case.

10. I confirm that I have no conflicts of interest.                           

Signed                                                                                   Dated

SJM Butler