BOUNDARY RIGHT OF WAY DISPUTES NOTTINGHAM LOGO

steve@buildingsurvey.co.uk

0330 133 1111

34 Queen Street Derby DE1 3DS

8.30am to 6.30pm Monday to Friday  

 
 
 

 

Home

RICS Expert Witness Reports

Boundary Disputes

 Experience

Contact

 

INDEPENDENT EXPERT SURVEYORS REPORT FOR A FOR BOUDARY AND RIGHTS OF WAY DISPUTE

The new neighbour wanted to cut down a long standing privet hedge between two terrace houses. The case did not look good given the position of the hedge in relation to the neighbours property. See next to last photograph. What saved the client was an absence of a conveyance document and rapid up take of the law of adverse possession and remembering that her father had planted the hedge in the 1950's and that the family had maintained it since. Easy win as nobody to argue with her evidence. Adverse possession was obtained under the common law. A win would be more difficult if the hedge had been plated after October 1991 due to the Land Registration Act 2002 much more difficult to claim where properties are Registered.

However Schedule 6 (5) may save an applicant in some circumstances

5(1)  If an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the

        following conditions is met.

  (2)  The first condition is that—

         (a)  it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and

         (b)  the circumstances are such that the applicant ought to be registered as the proprietor.

         (3)  The second condition is that the applicant is for some other reason entitled to be registered as the proprietor of the estate.

 (4)    The third condition is that—

         (a)   the land to which the application relates is adjacent to land belonging to the applicant,

         (b)   the exact line of the boundary between the two has not been determined under rules under section 60,

         (c)   for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to

                which the application relates belonged to him, and

         (d)   the estate to which the application relates was registered more than one year prior to the date of the application.

 

In this particualr case if the hedge had been planted after 1991 but before 2012 Section 4 would appear to apply.

 

 

 

 

5th April 2022

 

Nottingham

 

 

Dear Madam

 

Road

 

  1. Instruction

 

  1. To prepare a Part 35 CPR report in respect of the boundary between    and  Heathrow Road.

 

  1. I have not acted for either party before.

 

  1. Qualifications

 

  1. I am Steven John Macgregor Butler, a Member of the Royal Institution of Chartered Surveyor trading as a sole practitioner. I qualified in 1992 and have in excess of ten years’ experience of preparing reports on boundaries and rights of way. CV attached as Appendix 1.

 

  1. Law

 

  1. Mr Justice Barker 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. Comments of Mr Justice Barker:

 

  1. ‘Before turning to the facts and expert opinion evidence, I should briefly remind myself of the principles relevant to determination of boundary disputes, at least insofar as they are potentially applicable to this case:

 

  1. Where, as in this case, 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.”

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

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

 

  1. 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.

 

  1. 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).

 

  1. 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.

 

  1. 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.

 

 

  1. Photographs

 

  1. Annotated photographs follow the report at Appendix 2 and prior reference to them may enable a reader to follow the report more easily.

 

  1. An historic photograph is shown at Appendix 3.

 

  1. A plan showing the currently layout of the site is attached at Appendix 4.

 

  1. Documents

 

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

 

Conveyances of 30 and 32 dated 16/06/1894.

 

Conveyance of 16th May 1947.  Noted on the Land Registry site but not available to purchase.

 

Conveyance of 17th June 1959 of Number 30. In the possession of Mrs C but the document contains no information that helps define the boundaries.

 

  1. Inspection

 

  1. The properties are end terraced houses on the north side of   Road separated by a path believed to belong to Number    that is shared with  and but not Number . Number   is to the west of  and has an entry path shared with.

 

  1. Beyond the path that separates the actual houses at 30 and 32 and a small section of the rear garden of 32 the boundary on casual inspection appears to be a hedge that is box for about 7.5m and privet for the remainder.

 

  1. Immediately to the east the hedge a concrete path runs for most of the length of Number 30s rear garden stopping about 5.0m short of the rear boundary of the properties.

 

  1. Casual inspection suggests that the box and privet hedge are a long established boundary feature.

 

  1. The box and privet hedge runs for about 35 metres along the rear garden after which a section has been removed. Toward the very end of the garden and approximately in alignment with the privet hedge are the remains of some stumps that appear to have formed part of a substantial hedge.

 

  1. The box part of the hedge also runs across the full width of 30’s garden to separate it from the shared entry path bar a gap to enter the garden.

 

  1. The Dispute

 

  1. Number 32 wish to remove the privet/ box hedge and replace it with a fence. Surveyors acting for them have suggested that the boundary line between the two properties should be a straight-line projection of the flank eastern flank wall of the house at 32. The surveyors have marked what is in their opinion the projection of the flank wall with two pegs which I have marked on the plan with red crosses.

 

  1. If a fence was to be erected along that line it would enclose the privet hedge and occupy land that is currently part of Number 30’s path.

 

  1. Background

 

  1. Number 30 is known to have been conveyed 16th June 1894 but the document is not available to purchase form the Land Registry.

 

  1. Number 32 is known to have been conveyed 16th June 1894

 

  1. Number 30 is known to have been conveyed 16th May 1947 but the document is not available to purchase form the Land Registry.

 

  1. Number 30 is known to have been conveyed 17th June 1959 but the document does not define the boundaries.

 

  1. Nothing is known about the properties before 1959.

 

  1. Miss C states that her mother has lived at the property since 1959 and continues to do so.

 

  1. Miss C states that a fence original extended across the width of the garden at the head of the entry path and that her father planted the Box type hedge within its parameters. A photograph provided by Miss Charlesworth show the fence and hedge in about 1966. Appendix 5.

 

  1. Miss C also states that her father planted the current privet hedge.

 

  1. The concrete path that abuts the hedge of 30’s side is clearly historic and pre-dates Miss C memory of the property.

 

  1. Analysis

 

  1. Intrinsic Evidence

 

  1. None available at present. Number 32 may be able assist if they have copy of the 1894 conveyance.

 

  1. Extrinsic Evidence

 

  1. The path and remaining hedge features are consistent with the boundary having been the hedge although on which side of the hedge any legal boundary ran is not clear.

 

  1. Adverse Possession/ Prescriptive Rights

 

  1. Miss C states that the hedge and path are known to have been in-situ for about sixty years and this is supported by the obvious age of the hedge and path.

 

  1. Miss C states that her father planted the box hedge in place of a timber fence, and that he replaced an existing hedge with the current privet hedge shorty after moving into the property.

 

  1. The photograph at Appendix 3 provided by Miss C is consistent with a timber fence having projected beyond the entrance path towards Number 32 and the box hedge having been planted within its parameters.

 

  1. Subject to legal tests the panting of the hedges is consistent with Mrs C having had opportunity to adversely possess any land occupied by the path and hedges that might be over the original legal boundary by adverse possession under both the common law and 2003 Land Registration Act.

 

  1. The position of the path and hedge in relation to any legal boundary appears to satisfy the requirements of Schedule 6 Section 5(4) of the 2003 act in respect of being adjacent to to Number 30.

 

  1. Boundary/ Right of Way Agreements.

 

  1. None known.

 

  1. What the parties might have thought that they were buying.

 

  1. In the absence of the 1894 conveyances, we can only judge the boundary by the currently available features.

 

 

  1. It is likely that any purchase of the land in modern times would consider that the boundary was the privet hedge but that ownership is not clear.

 

  1. The now removed fence that crossed the end of the shared entry path might indicate that the boundary was in fact on the west side of the box/ privet hedge in 1959.

 

  1. The other alternative in the absence of a rare party boundary would be the juncture of the path and hedge.

 

  1. In any event the boundary is likely to have been considered to be to the west of the concrete path when Mrs C purchased the property in 1959.

 

  1. Number 32’s surveyors reports.

 

  1. Both make an assumption without any supporting documents that the boundary is a straight-line projection of 32’s flank wall. The assumption is naive and the photograph at Appendix 3 cast doubt on this.

 

  1. The position of the path also casts doubt on this.

 

  1. The Total Station survey undertaken by myself suggests that the two pegs placed in the ground by one of 32’s surveyors to mark a projection of the flank wall of 32 may not be correct.

 

  1. Conclusion

 

  1. There is no available intrinsic evidence. There can therefore be no assumption that the boundary is a projection of the flank wall of 32 unless supported by evidence on the ground.

 

  1. A fence that crossed the rear garden of Number 30 as seen in the Appendix 3 photographs suggests that boundary may at that time have been to the west of the hedge.

 

  1. Otherwise, the juncture of the hedge and concrete might be an alternate boundary line.

 

  1. The obvious age of the slabs and hedge together with Mrs C’s evidence and photograph at Appendix 3 of the site are consistent with any part of the path and hedge that might be over the original legal boundary having been acquired by adverse possession.

 

Statement of Truth

 

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

 

I Steven JM Butler DECLARE THAT:

 

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

 

2. I confirm that I have not entered into any arrangement where the amount or payment of my fees is in any way dependent on the outcome of the case.

 

3. I know of no conflict of interest of any kind, other than any which I have disclosed in my report.

4. I do not consider that any interest which I have disclosed affects my suitability as an expert witness on any issues on which I have given evidence.

 

5. I will advise the party by whom I am instructed if, between the date of my report and the trial, there is any change in circumstances which affects my answers to points 3 and 4 above.

 

6. I have shown the sources of all information I have used.

 

7. I have exercised reasonable care and skill in order to be accurate and complete in preparing this report.

 

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

 

9. I have not, without forming an independent view, included or excluded anything which has been suggested to me by others, including my instructing lawyers.

 

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

 

11. I understand that –

 

a. my report will form the evidence to be given under oath or affirmation;

 

b. questions may be put to me in writing for the purposes of clarifying my report and that my answers shall be treated as part of my report and covered by my statement of truth;

 

c. the Court may at any stage direct a discussion to take place between experts for the purpose of identifying and discussing the expert issues in the proceedings, where possible reaching an agreed opinion on those issues and identifying what action, if any, may be taken to resolve any of the outstanding issues between the parties;

 

d. the Court may direct that following a discussion between the experts that a statement should be prepared showing those issues which are agreed, and those issues which are not agreed, together with a summary of the reasons for disagreeing;

 

e. I may be required to attend Court to be cross-examined on my report; and

 

f. I am likely to be the subject of public adverse criticism by the judge if the Court concludes that I have not taken reasonable care in trying to meet the standards set out above.

 

STATEMENT OF TRUTH 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 opinions on the matters to which they refer.

 

I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth

 

Signature                                                                               Date

SJM Butler                                                 5th April 2022

 

 

 

 

 

 

 

 

14th March 2022