Enable the joint development by the participants of a bespoke practical framework to be used as a road-map for the amicable and practical resolution of the dispute:
(i) What are each participant’s conclusions about the facts on the ground following inspection & investigation – Draft a chronology.
(ii) What legal remedies/defences are claimed – i.e. what is each participant’s postion about the applicable legal principles?
(iii) What are the litigation risks?
(iv) What do you want? – i.e what are each participant’s primary concerns, needs & priorities?
(v) Is there a practical solution?
(vi) What do you need? – i.e. what needs to be done e.g. an application to HM Land Registry following settlement to regulate the situation and avoid a future dispute.
(vii) Are the participants ready and willing to collaborate as ‘neighbours’ in the development of a ‘road-map’ for settlement, by isolating and agreeing the ‘key issues’ and ‘principles’ which need to be aired, discussed, and agreed, in order to unlock the dispute, and thereby establish/create ‘building-blocks’ for an overall settlement that works, because it is practical, and sustainable?
General principles
What follows is a summary of general principles in an ‘Adverse Possession’ / ‘Prescription’ claim.
Rules of prescription perform the important function of preventing ‘the disturbance of long-established de facto enjoyment.’ (R v. Oxfordshire CC Ex P. Sunningwell PC [2000] 1 A.C. 335 at 349 per Lord Hoffman).
Prescription and limitation are in many ways similar principles, but as the law has developed they have become quite distinct.
Whereas prescription is acquisitive, limitation is prescriptive, i.e. adverse possession of land for 12 years extinguishes the previous owner’s title, leaving the adverse possessor with a title based on his or her own actual possession.
Adverse possession arises from the law of limitation of actions.
Limitation is a rule of litigation that prevents the recovery of land from a trespasser after a certain period of time has elapsed.
By limitation a person [‘P’] may acquire the land of another by adverse possession for a period of 12 years.
A person who has been adverse possession of unregistered land for the limitation period does not just bar the right of action for its recovery. He or she extinguishes the landowner’s title.
Land Registry Practice Guide 4 states:
‘Adverse possession requires factual possession of the land, with the necessary intention to possess and without the owner’s consent. You must show … adverse possession for at least 10 years … ending on the date of the application (Schedule 6, paragraph 1(1) of the Land Registration Act 2002).’
The LRA 2002 came into force on 13 October 2003.
As a result of LRA 2002 Schedule 12, paragraph 18(1), the rights of a claimant who has completed 12 years of adverse possession (so that the section 75(1) trust had come into existence) on or before 12 October 2003 are preserved. The trust is removed by the repeal of section 75 of the 1925 Act, and the adverse possessor retains the right (originally conferred by section 75(2)) to be registered as proprietor. The entitlement to be registered as proprietor ‘of the estate’ confirms that a statutory transfer takes place.
In other words, where title to land is registered, and P is able to demonstrate that as at 13 October 2003, i.e. the date when the Land Registration Act 2002 came into force, he/she had been in adverse possession for 12 years or more, then P is entitled to be registered as the proprietor of the land.
This right of registration subsists indefinitely against the registered proprietor who is holding on trust.
The right of registration also operates as an overriding interest, and will bind a purchaser for value provided P was in actual occupation of the land, but not if the occupation ‘would not have been obvious on a reasonably careful inspection of the land at the time of the disposition ’and the purchaser ‘does not have actual knowledge’ of that person’s interest (LRA 2002, schedule 3, paragraph 2).
The register can be altered to correct a mistake arising from pre-registration adverse possession.
In relation to boundary disputes, LRA 20002, Schedule 6, paragraph 5(4) provides:
‘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.’
Prescription acts or operates positively, so as to create a new title. This is brought about by presuming a grant, as ‘all prescription presupposes a grant.’ (Gardner v. Hodgson’s Kingston Brewery Co Ltd [1903] A.C. 229 at 239 per Lord Lindley).
The court may presume, on proof of the fact of long enjoyment, that there once was an actual grant of the right, even though it is impossible to produce any direct evidence of such a grant. It is then ‘the habit, and in my view, the duty of the court, so far as it lawfully can do, to clothe the fact with a right.’ (Moody v. Streggles [1879] 12 Ch. D 261 at 265 per Fry J). Please also note reversal of the burden of proof in a claim based upon prescription, see paragraph 4-119 of ‘Gale on Easements’, 21st Edition, by Jonathan Gaunt QC and The Honourable Mr Justice Morgan (who is a High Court Judge) (2020), Sweet & Maxwell.
By prescription one person may acquire rights such as easements over the land of another.
‘Prescription is another way in which an easement … can come into existence even though there has been no express grant. If the landowner makes use of a neighbour’s land for a long period without permission, openly and peaceably, in a way that could amount to an easement, the law of prescription may create an easement, appurtenant to the user’s freehold estate in land. … The fiction of grant determines the quality of use required in order to found a claim to a prescriptive easement. The claimant’s use of the neighbouring land must have been “as of right” or, more helpfully, “as if of right”, in other words, the claimant must have used the land as if he or she was entitled to do so by virtue of an easement already granted to him or her. [“That is to say, openly and in the manner that a person rightfully entitled would have used it.” (R (Lewis) v. Redcar and Cleveland Borough Council (No.2) [2010] UKSC 11, [2010] 2 AC 70 at [67] by Lord Hope]. The English courts have taken the definition of use as of right from Roman law and so have taken it to mean that the use must not be by force, nor by stealth, nor by permission.’ (The Law Commission Report – Making Land Work: Easements, Covenants And Profits A Prendre’, 07 June 2011 (Law Com No.327), paragraphs 3.71 and 3.89).
Paragraph 1-01 of ‘Gale on Easements’ states, ‘An easement is a right over the land of another. … it is a proprietary, not a personal, right and will therefore bind successors to the servient land [i.e. the land which is subject to the easement] and enure for the benefit of successors to the dominant land.’
While the right must be within the general nature of rights capable of being created as an easement, there is no precise definition, and the list is not closed.
Paragraph 4-01 of ‘Gale on Easements’, states:
‘Prescription may be defined as: a title acquired by use or enjoyment had during the time and in the manner fixed by law.’ Land Registry Practice Guide 52 states:
‘There is no requirement for register entries to be made in respect of prescriptive easements. The benefit of all interests subsisting for the benefit of an estate vests in the registered proprietor on first registration (sections 11(3) and 12(3) of the Land Registration Act 2002) and will then pass on a transfer of the registered estate. Easements arising by common law prescription or the doctrine of lost modern grant will be legal interests. The purchaser of unregistered burdened land is bound by legal interests. Following first registration of the burdened land most legal easements are overriding interests (section 29 and Schedule 3 of the Land Registration Act 2002) and so capable of binding successive registered proprietors of the burdened land. The use must be without force, without secrecy and without permission (nec vi, nec clam, nec precario). Use while the same person is in possession of the benefitting and the burdened land cannot be use as of right. A registered proprietor may apply to be registered as proprietor of a legal easement appurtenant to their registered estate. In other words, they may apply to register the benefit of the easement. If the application is in order and, from the evidence we have seen, we consider it to be more likely than not that the claimant is entitled to apply to be so registered, we serve notice of the application on the registered proprietor of the burdened land and on other persons, such as registered charges, who appear from the register to be interested in the land. Provided we receive no objection to the notice or notices, we make an entry in the property register for the benefitting land to the effect that this land has the benefit of the easement. If the benefitting land is only part of the land in the title, the entry specifies the part of the registered title that has the benefit of the easement. Such an entry guarantees the existence of the right for the purpose of the indemnity provisions of the Land Registration Act 2002. At the same time, we enter a notice in the charges register for the burdened land. If the burdened land is only part of the land in the title, the entry specifies the part of the registered title that is subject to the easement.’
Interference with an easement, gives rise to an action in the tort of nuisance.
A land obligation is an interest in land. Therefore, the primary remedy for breach is an injunction, as confirmed by the Court of Appeal in Watson v. Croft Promo-Sport Ltd [2009] EWCA Civ 15, where Sir Andrew Morritt VC reiterated that an injunction should be refused only in exceptional cases.
Evidence
‘Although the register is conclusive as to title, it is not normally conclusive as to boundaries, because, except in the rare cases where the boundary has been determined, the register does not determine the exact line of the boundary. In relation to boundaries, therefore, acquisition of title by adverse possession can be justified for much the same reasons as it can in relation to unregistered land, and, in particular, it quiets title. The Land Registration Act 2002 permits a person to acquire title solely on the ground of adverse possession where [P] can establish the following:
(i) The land to which the application relates is adjacent to land belonging to the applicant. This requirement restricts the condition to boundary disputes. [LRA 2002, Schedule 6, paragraph 5(4)(a)].
(ii) The exact line of the boundary between the two properties has not been determined under the procedure provided for In the Act And the Rules. [LRA 2002, Schedule 6, paragraph 5(4)(b)]. In other words, the condition applies only to a general boundary. Once a boundary has been determined in accordance with the statutory procedure [under LRA 2002 s.60(3), (4) LRR 2003 rr. 118-122], The register is conclusive and the justification for the third condition no longer exists.
(iii) That [P] or a predecessor in title has not only been in adverse possession for at least 10 years ending on the date of the application, but for at least 10 years of that period, [P] or her predecessor in title reasonably believed that the land to which the application related belonged to her. This mental element is the most important requirement of this condition and it means that the period of adverse possession necessary to support the condition will in fact have to be longer than 10 years. The period of reasonable belief as to ownership must last for 10 years. That period of reasonable belief will come to an end once [P] becomes aware that she does not own the land. Only then will [P] realise that an application for registration must be made, and she must remain in adverse possession until she makes an application, unless she is evicted by the registered proprietor otherwise than pursuant to a judgement for possession, and on the day before the eviction [P] satisfied this mental element.
(iv) The estate to which the application relates must have been registered more than one year prior to the date of the application. This requirement is intended to meet the situation which would arise where title to unregistered land was first registered at a time when [P] had been in adverse possession of that land for more than 10 years but less than 12 years. But for this provision, [P] could apply to be registered as proprietor as soon as the title was registered even though she had not extinguished the unregistered title by adverse possession prior to 1st registration. In that situation, by reason of this requirement, the registered proprietor has a period of one year after first registration to terminate [P‘s] adverse possession, whether by seeking possession or by granting [P] a lease or licence. … The third condition will commonly apply in cases where the legal and physical boundaries of land do not coincide. Sometimes this happens because, e.g. on the construction of new housing, the fences or walls between the different lots are constructed in the wrong place. It can also happen, where the legal boundary does not follow the natural features of the land.’ (‘Megarry & Wade – The Law of Property’, 9th edition, by Stuart Bridge, Elizabeth Cooke and Martin Dixon, Sweet & Maxwell (2019), paragrpah 7-097).
Practical principles to be agreed in relattion to the land in dispute
The following are examples:
- In a dispute about adverse possession and prescription, that the age of a line of trees located along/within the line of the disputed boundary, is evidence of the the length of time that they have been planted in the ground, and possibly of maintenance, as logically, they would be higher unless they had been maintained.
- In a dispute about the ownership and preservation of a tree, because of the need for there to be a minimum distance between the tree and the erection of a boundary fence in order to protect the roots, and prevent the tree from becoming unstable, that a sufficient space needs to be left and agreed e.g. of 1-10 feet.
‘The General Boundary Rule.’
Even where land is shown on the file plan, this is subject to the General Boundaries Rule in s.60 of the 2002 Act.
S.60 provides as follows:
“(1) 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. (2) a general boundary does not determine the exact line of the boundary”.
‘Boundary agreements’
‘Registration with general
boundaries is sufficient for the majority of titles. However, there are
occasions where an owner might require something more precise. There are 2 main
ways to achieve this: entering into a boundary agreement or having a determined
boundary.
Two or more sets of owners may come to an agreement about the
boundary between their properties. The agreement can deal with the position of
the legal boundary, or the maintenance of a boundary feature (such as a hedge),
or both. This supplement is concerned only with boundary agreements in so far
as they deal with the position of the legal boundary.
For example, neighbours may agree that the legal boundary
between their properties is the middle of a hedge (and that each will keep
their side of the hedge below a certain height). Or there may be a post and
rail fence and a brick wall running close together between 2 properties and the
owners agree which of the 2 possible boundary features marks the legal
boundary.
It is for legal advisers to advise their clients, in the
particular circumstances, as to (i) whether or not a boundary agreement is
appropriate for them, (ii) the form the agreement should take and (iii) whether
or not to apply to have it recorded in the register. However, you may find the
following comments helpful.
There is a rebuttable presumption that a
boundary agreement does not involve the transfer of any land, and that the
agreed position coincides with the true position of the legal boundary. The
presumption will not be rebutted merely because of “circumstances of doubt or
uncertainty” as to whether or not the transfer of any land is actually
involved. See Neilson v Poole (1969) 20 P&CR 909 at 918 and 919. However,
it must be the case that where the agreed position differs from what is shown in
a title plan, the agreement can only have identified the current position of
the legal boundary if the agreed position is within the scope of the general
boundaries rule: see practice guide 77: altering the register by removing land
from a title plan.
Where, on the other hand, it is established
that there is in fact a transfer of land involved then, subject to the possible
requirement to be in writing (see A simple boundary agreement), the boundary
agreement gives rise to an obligation on a party to transfer any of their land
falling on the other party’s side of the agreed boundary, if called upon to do
so: Neilson v Poole (1969) 20 P&CR 909 at 918 and 919.
In circumstances where there is clearly a
transfer of land involved, the neighbours may wish instead (or following the
boundary agreement) to ‘formally’ transfer or convey the land. Only then, on
registration, will the transfer be effective at law – and this is so even if
only a small or trivial amount of land is involved. This approach may be most
appropriate where there has been a dispute between the neighbours and there is
a desire to resolve the matter once and for all. It is almost certainly
appropriate, whatever the relationship, where the agreed boundary involves the
transfer of a substantial amount of land.
It seems settled that an “agreement to
demarcate an unclear boundary is binding on the parties and binds successors”:
Haycock v Neville [2007] EWCA Civ 78 at [25] and Neilson v Poole (1969) 20
P&CR 909. But whether a boundary agreement will bind successors in title in
all circumstances (in particular, in the absence of their knowledge of the
agreement) does not appear to have yet been established.
A boundary agreement which does not involve
the conscious transfer of land, or in other words does not have a “disposing
purpose”, falls outside the scope of section 2(1) of the Law of Property
(Miscellaneous Provisions) Act 1989 – which is concerned with “a contract for
the sale or other disposition of an interest in land”. As a result, such a
boundary agreement does not need to be in writing in order to be enforceable:
Haycock v Neville [2007] EWCA Civ 78 at [25]; Yeates v Line [2012] EWHC 3085
(Ch) at [29]. This is also the case where only “trivial transfers of land [are]
consciously involved” and the de minimis principle applies: Joyce v Rigolli
[2004] EWCA Civ 79 at [32]; [45]; Yeates v Line [2012] EWHC 3085 (Ch) at [30].
But it is obviously sensible to put the agreement into writing and for the
parties to sign the document. The registrar is unlikely to proceed with an
application to alter the register by recording a boundary agreement (see Recording a boundary agreement in the register)
unless the applicant produces a copy of a signed agreement.
Where neighbours agree on the position of the
legal boundary, there is no particular reason to doubt that this was the
position of the legal boundary, and they want to try to stop any going-back on
the agreement, particularly when one of the properties is sold, then it might
be appropriate to have the agreement put into writing and recorded in the
individual registers.
There is no prescribed form for a written
boundary agreement, even where the land concerned is registered. The following
shows the form that a simple boundary agreement might take where the properties
concerned are both registered.
It would be sensible for both parties, and any
witnesses, to sign and date the plan attached to the agreement. Generally
speaking, the better the quality of the plan – and, in particular, the more
precisely it shows the position of the legal boundary – the more helpful the
agreement is likely to be to the parties and their successors in title. You
may, therefore, wish to ensure that the plan complies with the guidelines
in practice guide 40 supplement 2: guidance for preparing
plans for HM Land Registry applications. But there will be cases
where the particular circumstances mean that a more basic plan is sufficient.
This is not to suggest that a plan of some
sort will always be necessary. In some cases it may be thought enough to
identify the boundary in words alone. For example, the agreement might include
a clause along the following lines:
“The parties agree that the legal boundary
between the land within their respective registered titles is the centre line
of the wall running between their properties.”
It would seem that a mortgagee will not
generally need to be a party to a boundary agreement. Assuming that the
presumption mentioned earlier in this section is not rebutted, then the agreed
boundary will be taken to be the legal boundary of the mortgagor’s estate from
the start – and so at the time the estate was charged. But the mortgagee’s
involvement is a matter that you would need to advise your clients on, bearing
in mind the clients’ particular circumstances.
Where neighbours agree on the position of the
legal boundary, they want to try to stop any going back on the agreement
(particularly when one of the properties is sold) and there is no particular
reason to doubt that the agreed position is the position of the legal boundary,
then it might be appropriate to have the agreement put into writing and
recorded in the individual registers.
Where the position is the same but there is
thought to be a transfer of a small piece of land involved, then the neighbours
may again simply want to apply for the boundary agreement to be recorded in the
register. They would be relying on their ability to enforce, if necessary, the
obligation to transfer created by the boundary agreement.
The registrar has power to alter the register
of title for a number of purposes, one of which is ‘bringing the register up to
date’: paragraph 5 of Schedule 4 to the Land Registration Act 2002. So, unless
all the property concerned is unregistered, a boundary agreement can be noted
in the register. An application must be made in form AP1 for the register(s) of the
relevant title(s) to be altered. Applicants should lodge a copy of the boundary
agreement. The prescribed fee for applying to alter the register must be paid.
If the application is in order, an entry along
the following lines will be made in the property registers of the registered
titles involved:
“An agreement dated
[date]
made between [the parties to the agreement] relates to [the boundary
concerned – eg the south western boundary] of the land in this title.
NOTE: Copy filed.”
If a registered chargee is not a party to a
boundary agreement and its consent to the alteration is not lodged, we shall
serve on the chargee notice that the entry has been made.
Unless determined under section 60 of the Land Registration Act 2002, the boundary of a registered estate as shown for the purposes of the register is a general boundary. Note that this is so even if there is a boundary agreement and it has been recorded in the register. The registrar is not in any way guaranteeing that the legal boundary is where the parties have identified it as being in the boundary agreement. If the parties want to ensure that the exact line of the legal boundary is shown for the purposes of the register, they should apply for a determined boundary.’
(HM Land Registry Practice Guide 40 – HM Land Registry Plans, Supplement 4 boundary agreements and determined boundaries). Practice guide 40: HM Land Registry plans, supplement 4, boundary agreements and determined boundaries – GOV.UK (www.gov.uk)
Determined boundaries
‘The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under section 60 of the Land Registration Act 2002. Unlike a general boundary, a determined boundary shows “the exact line of the boundary of a registered estate”. The Act does not define “exact”.
HM Land Registry does not determine a boundary in the sense of
resolving a disagreement as to where the exact line of the boundary is located.
Instead, with the exact line having been identified, HM Land Registry will then
make it apparent from the register that the boundary has been determined.
Reference to the boundary concerned being a determined boundary is made in the
property register of each affected title. The general position of the boundary
will be marked on the title plan of each affected registered title, often with
lettered points showing the extent of the boundary which is determined. A filed
copy of the determined boundary plan (see below) is retained and can be
referred to in order to identify the exact line.
It is not always possible for the owner to apply for a boundary
to be shown in the register as determined. In particular, the applicant may be
unable to produce the necessary evidence to establish the exact line of the
boundary.
The application must be made on form DB. Only one application form is
required, irrespective of the number of adjoining boundaries. A fixed fee is
payable. Please see HM Land Registry: Registration Services fees.
On receipt of the application or after further
enquiries under rule 17 of the Land Registration Rules 2003, the registrar must
decide whether they are satisfied that: (i) the plan identifies, or the plan
and verbal description identify, the exact line of the boundary claimed, (ii)
the applicant has shown an arguable case that the exact line of the boundary is
in the position shown, and (iii) they (the registrar) can identify all the
owners of the land adjoining the boundary and has an address at which each
owner may be given notice. If so satisfied, the registrar must give the
adjoining owner(s) notice of the application, unless the evidence relied on and
lodged with the application includes an agreement in writing with the adjoining
owner as to the line of the boundary or a court order determining the line of
the boundary. Panel 9 of form DB should be completed where there is agreement
by the adjoining owner. The registrar must cancel the application if not
satisfied as to (i), (ii) and (iii).
The evidence lodged to satisfy the registrar
that the exact line of the boundary is in the position shown might include
plans or provisions within pre-registration deeds, statutory declarations,
statements of truth or other signed statements. Where an applicant is relying
on an expert’s report, a copy of that report should be lodged. It should be
noted that an expert’s finding as to the position of the legal boundary is not
conclusive on the point, even though it may bind the parties instructing the
expert. The registrar still needs to be satisfied that an arguable case has
been shown for the exact line of the boundary being where the expert has
assessed it to be, hence the need for a copy of the expert’s report to be
lodged. If there is particular reason to think that the registrar might not be
satisfied about an arguable case being shown, it may be better to consider
taking the transfer approach explained in Transfers and determined boundaries without an
application.
If there is an objection to the application
and the objection is not found to be groundless, the matter will have to be
referred to the Land Registration division of the Property Chamber, First-tier
Tribunal, unless the parties can reach agreement.
It will be seen below that a chartered land
surveyor or other suitably qualified professional will normally have to endorse
a determined boundary plan with a certificate. But even where this is not
necessary, it is recommended that such a professional should prepare the plan.
A surveyor will normally survey the boundary
to be determined in one of 2 ways.
- By the use of
measurements from permanent features.
- By the use of Ordnance
Survey National Grid co-ordinates.
Using National Grid co-ordinates would only be
appropriate in areas where there is little in the way of suitable permanent
features or where taped measurements would be excessively long. Using
co-ordinates requires specialist surveying equipment and is likely to be the
more expensive option when determining the boundary or attempting to
reconstitute it.
The position of the boundary to be determined may be marked on the ground by a feature such as a fence or wall. However, this is not a requirement and may not always be possible. For example, some housing developments with open garden frontages contain covenants preventing the erection of fences. An alternative way of marking a boundary can be the use of “permanent ground markers”: see Use of permanent ground markers. Their position will need to be marked on any determined boundary plan lodged with the application.’
(HM Land Registry Practice Guide 40 – HM Land Registry Plans, Supplement 4 boundary agreements and determined boundaries). Practice guide 40: HM Land Registry plans, supplement 4, boundary agreements and determined boundaries – GOV.UK (www.gov.uk)
Application to alter or rectify the register
P may apply under Schedule 4 of the Land Registration Act 2002. The strict criteria for alteration include:
- the correction of a mistake;
- the bringing of the register up to date; or
- to give effect to any estate, legal right or interest that is not affected by registration (because the land has been registered with good leasehold, possessory or qualified title).
Rectification is defined by paragraph 1 of Scheduel 4 as being an alteration which involves the correction of a mistake, and prejudicially affects the title of a registered proprietor. Not every alteration will constitute a rectification. The fact that the rectification of the register may cause a person prejudice, e.g. because he has purchased land from someone who lacked good title or that is subject to an interest that he was unaware of, means a registered proprietor is generally entitled to an indemnity where he suffers loss as a result of the ‘rectification’.
