Boundary Question

RunnerRower

WIAWSNB said:

Hi RR.
How important is this strip of land to you?

Hi @WIAWSNB The piece of land is quite important in that it forms the rear border of my garden which has a very clear "boundary' in the form of solid fences. The challenge about the tree was a weird, left-field moment as I've maintained many other trees much nearer to the fence and planted new plants in the borders with no challenge.

Section62

RunnerRower said:

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.
...

He's a farmer.  He put the fence up.  No matter how big and solid it is he could - if he wished - remove it in order to access the land on the other side of it.

The size and solidity of the fence have next to no bearing on ownership of the land if you are thinking of going down the AP route.

How old is your and the neighbour's houses?  Is the land they are built on likely to have once been part of the field and/or in the same ownership as the field?  Have you looked on old OS mapping from before the houses were built to see what the boundaries looked like then?  If you haven't , the NLS site is a good resource for old OS mapping.

RunnerRower

Section62 said:

RunnerRower said:

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.
...

He's a farmer.  He put the fence up.  No matter how big and solid it is he could - if he wished - remove it in order to access the land on the other side of it.

The size and solidity of the fence have next to no bearing on ownership of the land if you are thinking of going down the AP route.

How old is your and the neighbour's houses?  Is the land they are built on likely to have once been part of the field and/or in the same ownership as the field?  Have you looked on old OS mapping from before the houses were built to see what the boundaries looked like then?  If you haven't , the NLS site is a good resource for old OS mapping.

Thanks @Section62. I guess what I was trying to convey is that he hasn't had possession of the land for a lot more than ten years so I wondered if that would strengthen a claim for AP as myself and previous owners have been using it, planting borders in it and maintaining it in the belief that it was ours. In decades he's made no attempt to take possession of the land.

I think the houses are more than 60 years old. I don't know any more about the history of the land. As I said in another post, I think the boundary line has crept by a few metres over many decades to avoid cutting down larger trees. Does that have any bearing on the AP or legal ownership question?

WIAWSNB

RunnerRower said:

WIAWSNB said:

Hi RR.
How important is this strip of land to you?

Hi @WIAWSNB The piece of land is quite important in that it forms the rear border of my garden which has a very clear "boundary' in the form of solid fences. The challenge about the tree was a weird, left-field moment as I've maintained many other trees much nearer to the fence and planted new plants in the borders with no challenge.

I really meant in terms of how useful or desirable it is as a garden or extra space. If it isn't - and it seems as tho' not - then it isn't worth much to you in monetary value, or as a useful extra space; it's 'just' a boundary feature.

So that means you can approach the farmer - if you wish - and discuss its purchase. It doesn't make any difference to him - it isn't land that he uses, and seemingly doesn't wish to maintain either. It serves zero purpose for him. So you can be quite nonchalant about it, and obviously hang out for a low price.

That is, of course, you ain't going to try the AP route. I doubt that will be easy, but I don't really know. As said by others, the farmer positioned the fence as he was entitled to - on his own land. He's also made it clear to you he knows it's his. And, I understand that changes in AP rules mean that any attempt involves LR contacting the true owner to ask if it's ok! But possibly that ain't retrospective - I don't know.

I personally hate the idea of AP and squatter's rights and all that sort of stuff; if someone owns something, then they own it, and shouldn't have to look constantly over their shoulder to see if someone is trying to grab it off them.

So my personal approach would be the humble pie route mentioned earlier. If you try AP, then I'd suggest expect the guy to be peeved. And a peeved farmer, well... :-)

RunnerRower

Section62 said:

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.

Thanks @Section62. I keep reading that OS plans aren't a reliable indicator of the legal boundary and neither is the actual garden fence but my title plan is based on the OS map. Can anyone tell me how the actual legal boundary is determined if it's not necessarily the line on the OS map (title plan)  or the actual fence? @Land_Registry If there were to be a formal dispute who would determine where the actual legal boundary is if it's neither of the above?

lincroft1710

As the farmer has clearly stated the land is his, I cannot see any AP claim succeeding

RunnerRower

lincroft1710 said:

As the farmer has clearly stated the land is his, I cannot see any AP claim succeeding

Thanks @lincroft1710. Are you able to explain this view further please? For decades others have had possession of the land and believed it is theirs. Isn't that why the AP laws are there? Or am I missing something? What would be a similar example where an AP claim might succeed?

Land_Registry

Neither an OS plan or HMLR plan will define the precise position of a legal boundary. The only time the latter might is if adjoining landowners had formalised the position, for example through a Determined Boundary application - such DMs are still rare.
An OS plan is to define the physical features in place on the ground at the time of their survey. Nothing more than that and they don't define land ownership
An HMLR title plan shows the general boundaries of a specific registered extent thus confirming what the title holder owns within that extent. The actual legal position of that extent is not defined
Old deed plans/maps are simply a representation of what is/was there when the person who drew the map/plan. Even if they added measurements then where did they measure from and how?
See PG 40 supplements for wider guidance and understanding - Land registration: Practice guides - GOV.UK 
The PG sup re boundaries also includes some 'legal presumptions' re trees for example
Who decides where a legal boundary is? That's really down to the neighbouring landowners to agree upon - if they can't there is the legal route and most actions are now mediated upon and don't make it to court. We've all read/heard about expensive court cases re boundaries and trees etc but those days are largely gone as the courts don't want to 'waste' their valuable time on such matters when the solution really lies with the landowners themselves
Ultimately OS, HMLR, a surveyor and anyone else inc both landowners can offer a view, professional or otherwise, but that doesn't make it so unless the neighbouring landowners agree that it does. 
And how long a fence has been in position does matter but it really comes down to who put it there, why and for what reason(s), with or without consent of the neighbour and so on. If you didn't put it there then you need to consider on what basis would your claim as to ownership be made - the law re adverse possession is a vary complex one so always seek legal advice re your very specific circumstances. The experiences of others are always helpful but every boundary, land issue and actual landowners are always unique so you need specific legal advice to consider the actual legal position and how that changes depending on you/the farmer's actions/options also
PGs 4 and 5 offer registration guidance on adverse possession - Land registration: Practice guides - GOV.UK

Section62

RunnerRower said:

Section62 said:

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.

Thanks Section62. I keep reading that OS plans aren't a reliable indicator of the legal boundary and neither is the actual garden fence but my title plan is based on the OS map.

This is why boundaries are usually described as 'general boundaries'... i.e. somewhere close to where the line is drawn on the OS plan, but not necessarily exactly on that line.

Which is fine in 99.9% of the cases where there is a fence or wall on the boundary and neither party is particularly bothered about the exact position of the boundary.

RunnerRower said:

Can anyone tell me how the actual legal boundary is determined if it's not necessarily the line on the OS map (title plan)  or the actual fence?

You'd use a boundary surveyor.  They would survey the physical features of the plots and then look at all the evidence - OS maps, any old deeds and title plans, photographs etc, along with statements made by the owners and others.

They would then give an opinion on where they believe the correct boundary to be.  The other party could agree, or engage their own boundary surveyor.

This is why I asked whether the tree appeared to form part of a line or a hedge - because the tree itself might be evidence of where the boundary was, or even used as a boundary marker.  This might be why the farmer got upset about you cutting down this specific tree, but wasn't so bothered about other work you've done.

RunnerRower said:

If there were to be a formal dispute who would determine where the actual legal boundary is if it's neither of the above?

Ultimately, if there is no agreement after using boundary surveyors, it would be for a judge to make a decision.  But typically going to court over a boundary dispute is a very expensive pastime, likely far more than the land in question is actually worth to either party.

vic_sf49

RunnerRower said:

lincroft1710 said:

As the farmer has clearly stated the land is his, I cannot see any AP claim succeeding

Thanks @lincroft1710. Are you able to explain this view further please? For decades others have had possession of the land and believed it is theirs. Isn't that why the AP laws are there? Or am I missing something? What would be a similar example where an AP claim might succeed?

The AP laws changed. Not sure when though. 

Something along these lines, although more knowledgeable folk might be along with a more precise explanation... 

You used to just claim the land after so many years of sole use, but now the registered owner is contacted, and can reject/refuse the AP claim.