In law, every property has a precise legal boundary – an invisible line separating the land owned by one person from that owned by another. Sometimes, the legal boundary coincides with the boundary feature (a fence, for example) and other times this is not the case.
We are sometimes asked to determine or mark on a plan who the owner is and who has responsibility for a legal boundary or a boundary feature. Most often this is because:
Unfortunately, Land Registry doesn’t always hold information that will help establish the precise position of a legal boundary. In such cases, legal presumptions relating to certain types of boundary feature may be helpful.
Think of a parade of terraced properties. Generally, each owner will own one fence, except one who will own two fences (usually the owner of an end property). However, no rule dictates which fence (left, right or both) belongs to which property. It is also tempting to assume that ‘the good side of the fence’ should always face away from the fence owner’s land, however, this has traditionally been done as a gesture of goodwill and is not an official rule.
The owner who breaks up the land would normally assign responsibility for the boundaries of the new land parcels that he creates. The conveyance or transfer deed will normally specify the boundaries for which the purchaser is responsible and may also outline the ownership and responsibility of the fences. Sometimes transfer plans show T marks against the boundary, within the land owned by the person responsible for the fence. An H mark (or mirrored T mark) is used for boundaries where the responsibility is shared between two owners. Once you determine the ownership of one fence it is easy to work out the ownership of the remainder.
The first thing to do is to check the documents your solicitor provided when you bought the property. If these do not contain any relevant information, see if your neighbours can check their documents. If no useful information can be found, it is recommended to reach an agreement with the neighbours or, worst-case scenario, seek legal advice.
Deeds may contain covenants to maintain a wall or fence, but on their own such covenants do not confer ownership. Where the ownership or responsibility for the maintenance of a boundary cannot be determined, it should be regarded as a party boundary and any alteration/replacement should only be done with the full agreement of the adjoining owners.
When a property is first registered, Land Registry also prepare a Title Plan, based on the Ordnance Survey map and showing the outline of the land in red. Although title plans are drawn to scale, this red border only gives a general indication of the boundary location as established on the General Boundary Rules.
When using a fence to mark a boundary, normal practice is to place the outer faces of the posts alongside the boundary, on the land of the fence’s owner. However, there are a large variety of fence styles and ways of positioning the fence relative to the boundary:
If the description of the boundaries in the conveyance deed or on the Land Registry/transfer plan is not clear and you have difficulty determining the boundary’s position on the ground, it is tempting to assume that the position of the fence indicates the position of the boundary. If the fence was in place at the time of the original conveyance or has been in place longer than twelve years, you could conclude that the outer face of the post follows the boundary, although this is not always the case.
Determining a boundary or the responsibility of a fence is not always a straightforward task and there isn’t a scientific approach; sometimes it is a matter of cross-checking old plans, deeds, old photographs and using a bit of common sense. If it is necessary to define the boundary more precisely, Land Registry offers a procedure known as “Determining the Boundary,” for which you will be asked to supply a detailed drawing, most often a topographical survey of the land. For more information, please visit GOV.UK.
*Information contained within this article is informally offered as general guidance and does not constitute legal advice.