Boundary Question

sheramber

When we were buying our last house our solicitor advised us that the boundary fence on two sides were different on the  OS map and the Land Registry, to our disadvantage. 

 

We were surrounded by fields and the  original owner of the fields and plot had put the fences up many years before when he decrofted  the plot and built the house.
 

As our seller still owned the fields he willingly agreed to the fences being moved to agree with the registered boundaries. 

WIAWSNB

RR, can you think of - or see - any reason why the farmer would have placed his fence there, rather in the correct place? Just 'easier', for example?

RunnerRower

silvercar said:

When you bought your solicitor should have asked you to check that the boundaries shown on the deeds match what you expect.

The fence is a 6 foot solid wooden fence that goes right across the garden in the same place as a previous old rusty barbed wire fence and leaves no access points where anyone including the farmer could access my garden. The garden has clear boundary features in the form of solid wooden fences that Google Earth shows have been in place for more than ten years. It isn't just a bare strip of land that looks like part of the field. It has lots of trees and plants including some that I have planted just inside the rear fence with no complaint from anyone over the past six years. The relatively small tree I was cutting down was completely rotten and is much further away from the fence than the ones I have planted with no complaints from anyone. The solicitor told me that the general boundaries rule would apply and that title plans are often not very accurate. Interested to know from @Land_Registry whether the general boundaries rule gives me any protection here or should my solicitor have advised me to get the plot measured against the title plan/OS map? 

Land_Registry

I don't think it's a Q of 'protection' from the general boundaries rule (see PG 40 section 5 - HM Land Registry plans: boundaries (PG40s3) - GOV.UK) but rather what's the current position re you/the neighbour over whose land it is and how to resolve/reach an agreement and formalise it.
It reads as if you completed the tree work and nothing more was said so there's no issue currently so no Q of protection.
Where the issue may arise is when for example you/the neighbour looks to sell and any new buyer Qs the state of play re that specific boundary. And of course if you look to do more work on that part of the land and the neighbour again raises it.
Best bet is to confirm the legal position and what options you have re either doing nothing or doing something to try and resolve the issue. Whether that then leads to an application to update the two registered titles or not comes separately/after such decisions are made

MobileSaver

RunnerRower said:

silvercar said:

When you bought your solicitor should have asked you to check that the boundaries shown on the deeds match what you expect.

whether the general boundaries rule gives me any protection here 

The Land Registry guidance says there are two ways to get the boundary changed and "The first option always requires the agreement of adjoining owners and the second almost invariably will also require this." The obvious way to do this is to incentivise the farmer to agree to the formal change,  i.e. you pay him for the bit of his land that you want.

As @Land_Registry intimates, a lot depends on your future plans. The biggest risk is possibly when/if you try to sell and a potential buyer notices the title plan/boundary discrepancy. At that point the farmer will have the upper hand and at best could demand a premium to agree to any change or at worst completely scupper your potential sale. 

RunnerRower said:

The solicitor told me that the general boundaries rule would apply and that title plans are often not very accurate. 

This makes it sound like you knew before you bought it that the title plan didn't match the boundaries actually on the ground but decided to go ahead anyway?

Depending on exactly what your solicitor said you may have grounds for complaint against them and possibly achieve a contribution towards your legal fees but probably not towards the actual purchase of the land as you knew wasn't yours.

RunnerRower

MobileSaver said:

This makes it sound like you knew before you bought it that the title plan didn't match the boundaries actually on the ground but decided to go ahead anyway?

Depending on exactly what your solicitor said you may have grounds for complaint against them and possibly achieve a contribution towards your legal fees but probably not towards the actual purchase of the land as you knew wasn't yours.

Thanks. No, I didn't mean to imply that there was a noticeable discrepancy. There were clear boundary lines shown on the title plan and the garden of my house has clear boundary fences so, having been told about the general boundary rule, I had no reason to think that the size of the plot was in question. The solicitor confirmed that the fences were the boundaries. It's only since I have lived there and measured the plot on the OS map that I can see that the dimensions don't stack up. As I mentioned before the solicitor implied the dimensions on the OS map were not significant by just telling me to check the general shape and boundaries looked right, which it did, and it all looked fine. Now I have the benefit of better knowledge of surrounding land etc you can see a difference in alignment of various features that I would never have thought was significant given what I was told to check, and someone who didn't live here would not notice.

RunnerRower

WIAWSNB said:

RR, can you think of - or see - any reason why the farmer would have placed his fence there, rather in the correct place? Just 'easier', for example?

Yes, there are lots of trees that are just inside the fence in question but the size of those trees suggests that they've been there for decades. So my best guess is that the boundary fences have been in the same position for many years (say 20) but may have crept over decades before that by virtue of the trees and shrubs spreading and creating new growth etc. The one-off comment about the tree was out of the blue and I've pruned and maintained all the other trees near the fence with no comment. My belief is that the previous owners all used all of the garden up to the current fence line too. So, yes, it wouldn't have been easy to put a fence up where the OS line seems to be as there are plants and trees there on parts of the area. Looks like the wooden fence replaced a barbed wire fence that was ancient but in the same position.  Does the OS boundary line position trump the longstanding fence line even after many decades in terms of legal ownership? @Land_Registry

RunnerRower

Land_Registry said:

You clearly have a reasonable understanding of options and others have given you a reasonable steer
Neighbours statements won't help you achieve the required time re adverse possession - it's all about you and your previous property owners - very complex law so do seek legal advice
Boundary agreement/Determined boundary - too much of a gap it seems between fence line and registered extent and/or farmer's agreement needed as you state
Acquire the land from the farmer might be the easiest option although it reads as if he's not likely to do that

Thanks @Land_Registry. I can show that the current fence line has not been moved in more than ten years (with Google Earth pictures) and the previous owners state that they used all the garden up to the fence as their own for the whole time they lived there, totalling more than ten years including my ownership. If I were to make an AP application, would HMLR allow an objection from the adjoining owner on the grounds that the fence is in the wrong place? The Practice Guide 4 Section 8.3 The third condition suggests that meeting that condition together with actual possession for more than ten years would entitle me to be registered. Or have I misunderstood?

Section62

RunnerRower said:

...

So, yes, it wouldn't have been easy to put a fence up where the OS line seems to be as there are plants and trees there on parts of the area. Looks like the wooden fence replaced a barbed wire fence that was ancient but in the same position.

As I said upthread, it is quite common for field fences to be put up some way inside the legal boundary for this (and other) reason(s).  Mechanically cutting a hedge with a fence in it is a pitb, and ususally results in the fence or hedgecutter getting damaged.  Likewise fences can be damaged by trees and hedges growing into them.

The farmer put the fence up, so could take it down again.  Therefore it represents no barrier to them using the strip of land 'outside' the fenceline if they wanted to.  Don't attach too much weight to the length of time the fence has been there as it really doesn't prove very much.

RunnerRower said:

Does the OS boundary line position trump the longstanding fence line even after many decades in terms of legal ownership?

Fences are sometimes on boundary lines, but aren't proof of where a legal boundary lies.  Not least because there is usually no requirement to put a fence up on a boundary.  OS plans also aren't very reliable, because the cartographer draws what physical features they see, they don't draw legal boundaries.  If the physical feature - like a fence - isn't on the legal boundary then the line on the OS plan isn't showing the legal boundary.

RunnerRower

Section62 said:

RunnerRower said:

....

I've also read about adverse possession and based on the testimonies of neighbours I know that the rear fence has been in place for more than ten years, and that the farmer himself erected it, so depriving himself of access to the land he now claims is his. So it sounds like I would potentially have a claim for adverse possession given that myself and the previous owners have used all the land up to the fence as our garden for more than ten years between us.
....

Putting up a fence within your own land doesn't deprive you of access to the other bit of land. It isn't uncommon for farmers to put up fences a metre or two inside their boundary - for example to contain stock and keep them away from a hedge/ditch/trees etc.

As both plots are registered I believe you'll have difficulty going down the AP route - particularly as it was the farmer who put the fence up, rather than a previous owner of your property trying to make a claim on the land.

Was the tree you cut down on its own, or is there anything resembling a line of trees or a hedge?

The fence is big enough and solid enough that he doesn't reasonably have access to my garden.

There are lots of trees in my garden but none resembling a line and lots that I have maintained regularly much nearer to the fence than the rotten one I took down as it was unsafe.