Anyone who has heard me speak about boundaries will know that one of my particular bugbears is the widespread ignorance about the effect of the general boundaries rule in section 60 of the Land Registration Act 2002 – for those who have not heard me speak, the message is that “Land Registry plans do not show boundary lines”.
Like all the best legal rules, though, the general boundaries rule is only the general rule, and section 60(1) also makes provision for what are called “determined boundaries”, as follows: “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.”
In other words, and in contrast to the general boundaries, if you have a determined boundary registered at the Land Registry, it really does show the boundary line between properties.
For those who have not come across such a determined boundary previously – a fairly likely scenario given that, as at 2016, there were only about 1900 determined boundaries registered in England and Wales, representing a rather modest 0.001% of all boundaries in the jurisdiction – they are recorded at the Land Registry as follows, namely: “The exact line of the boundaries of the land in this title between the points lettered A-B on the title plan is determined under section 60 of the Land Registration Act 2002 as shown on the plan lodged with the application to determine the boundaries dated [date]”.
Boundary dispute litigants and solicitors alike are generally fond of determined boundaries, and I have seen quite a few settlement agreements which require an agreed boundary line to be registered as a determined boundary. So why do I think that determined boundaries are a bad idea?
Although there are advantages to a determined boundary, these are limited. A determined boundary really is very accurate – the rules require any measurement shown on the boundary plan to be accurate to +/- 10mm – but how often does that degree of accuracy really matter? A determined boundary also effectively removes any possibility of future adverse possession claims – see Schedule 6, paragraph 5(4) of the 2002 Act – but how much more protection than a simple boundary agreement does this really provide?
However, obtaining a determined boundary is neither simple, quick, nor cheap. The very specific requirements for it are helpfully set out in the Land Registry’ s Practice Guide 40, which also discusses boundary agreements, and I would direct readers to that practice guide for a more in-depth discussion than this article permits. The basic requirements, though, are a completed form DB, a suitably detailed and scaled plan, evidence in support of the boundary line claimed, and the fee. The one point I would like to emphasise above all others, however, is that a determined boundary application is likely to be a frustrating and expensive waste of time if it is not a joint application made by both owners of land adjoining the boundary in question – such an application will almost inevitably end up becoming a litigated dispute before the tribunal.
What then is a boundary agreement, and why is it preferable to a determined boundary?
A boundary agreement is simply a written agreement between the owners of land adjoining a particular boundary, as to the boundary line between the properties.
What many surveyors and litigators do not seem to understand, however, is that such an agreement can nonetheless be registered at HM Land Registry, so that its details are readily available to prospective purchasers or future owners of either property. And unlike the very prescriptive requirements which apply to determined boundary applications, the requirements for an application to register a boundary agreement are much more relaxed.
A boundary agreement will be recorded on the property register of each of the properties affected by it in the following terms: “An agreement dated [date] made between [the parties to the agreement] relates to [the boundary concerned, e.g. the eastern boundary] of the land in this title. NOTE: copy filed”.
Although a plan will generally be part of a boundary agreement, a plan is not necessarily required. For example, a boundary agreement to the effect that “the boundary runs down the centre of the garden wall” would be a sufficient description to satisfy the Land Registry.
The requirements for a plan attached to a boundary agreement are not as painfully prescriptive as for determined boundary applications – indeed the only real requirement is that the plan must be referable to the Ordnance Survey map (so that the Land Registry can plot it). No particular scale or level of accuracy is required, and whilst the Land Registry prefers it if the parties have signed and dated the plan, this too is not a strict requirement.
And although registration of a boundary agreement does not definitively rule out future adverse possession claims in quite the same way as a determined boundary, its practical effect is much the same, since adverse possession of land in such circumstances effectively requires – by Schedule 6, paragraph 5(4) of the 2002 Act – the adverse possession applicant to “reasonably [believe] that the land to which the application relates belong[s] to him” something rather difficult to do when a registered boundary agreement on that title shows otherwise.
The application to register a boundary agreement is also much more straightforward. One must complete an AP1, identify the two (or more) titles affected by the agreement, enclose the agreement and pay the fee. In contrast with determined boundary applications, the likelihood of requisitions – questions or demands for information from the Land Registry – is relatively low. Consequently, the process of registering a boundary agreement tends to be quicker, less trouble, and therefore cheaper than a determined boundary application.
So, in answer to the question I pose in the title to this article, there is nothing wrong with a determined boundary as such, but a simple boundary agreement will do much the same job more quickly, cheaply and with less hassle.
(My thanks to Lindsay Kirk and Sean Lane of HM Land Registry for inspiring this article)