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Steve Butler RICS Chartered SurveyorsThe Apex, 2 Sheriffs Orchard, Coventry CV1 3PP
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Extract from ACCO PROPERTIES LIMITED - and - SEVERN 2011 - Comments of HONOUR JUDGE SIMON BARKER QC 2011
‘Before turning to the facts and expert opinion evidence, I should briefly remind myself of the principles relevant to determination of boundary disputes, at least insofar as they are potentially applicable to this case:
1 Where, as in this case, the property in question is registered land, the file plans show only general boundaries and not the exact line of the boundaries unless the property is said to be “more particularly described in the plan.”
2 Similarly, Ordnance Survey plans, if not forming part of the registered title as filed plans, are no more than a general guide to a boundary feature, and they should not be scaled up to delineate an exact boundary. This is because the lines marking the boundaries become so thick on being scaled up as to render them useless for detailed definition.
3 In order to determine the exact line of a boundary, the starting point is the language of the conveyance aided, where the verbal description does not suffice, by the representation of the boundaries on any plan, or guided by the plan if that is intended to be definitive.
4 If that does not bring clarity, or the clarity necessary to define a boundary, recourse may then be had to extrinsic evidence - such as topographical features on the land that existed, or maybe supposed to have existed, when the dividing conveyance was executed.
5 Admissible extrinsic evidence may also include evidence of subsequent conduct where of probative value in showing what the original parties intended.
6 Evidence of later features - that is, later than the earliest dividing conveyance - may or may not be of relevance. The probative significance of such evidence depends upon the extent to which, if at all, the dividing conveyance, or evidence of its terms, exists.
7 Where a boundary is in dispute, it is important to bring certainty to the determination by proclaiming the boundary and not leaving the plot “fuzzy at the edges” (Neilson v Poole (1969) 20 P&CR 909, Megarry J).
8 Even where a boundary line may be determined by reference to a conveyance, other evidence may be admitted and probative in establishing a different boundary obtained by adverse possession, showing enclosure of the land in denial of the title of the true owner. As the phrase implies, title is established by intentionally taking exclusive possession of land without the consent of, and adverse to the interests of, the true owner, and maintaining such possession continuously for the limitation period.
9 As to informal boundary agreements, the statutory requirement that contracts for the sale or other disposition of land be in writing does not apply. That is because the purpose of such agreements is to demarcate an unclear boundary referred to in title documents and not to transfer an interest in land.
10 Such agreements are usually oral and the result of neighbours meeting to avoid or resolve a potential or actual dispute. However, there is scope for a boundary agreement to be implied or inferred - that is, to be the logical conclusion to be drawn from primary facts.
11 When bearing these principles in mind as the platform on which to place and examine the facts, a judge should have regard to three further important yardsticks or rules of thumb. These are: (1) when considering any acquisition of property, it is vital to consider what a reasonable layman would think he was buying; (2) every case turns on its own facts; and (3) the task of the court is to assess all available and admissible material in arriving at its answer, and then to achieve the correct answer.
Right of Way Law
Recent and important cases are:
West v Sharp (1999)
Not every interference with an easement, such as a right of way, is actionable. There must be a substantial interference with the enjoyment of it. There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction. Thus, the grant of a right of way in law in respect of every part of a defined area does not involve the proposition that the grantee can in fact object to anything done on any part of the area which would obstruct passage over that part. He can only object to such activities, including obstruction, as substantially interfere with the exercise of the defined right as for the time being is reasonably required by him.”
B&Q v Liverpool and Lancashire Properties 
Emmett v Sisson 
Here a right of way ran along the front of the grantees property. The owners of the land containing the right of way tried to construct a wall along the side of the right of way just leaving an opening for access to the grantees property.
Held under the interpretation of the conveyance document that the grantee was entitled to the benefit of their luxurious bargain and could access the right of way at any point at which it touched their property.
RICS Right of Way Dispute Surveyors in Coventry
RICS Expert Witness Boundary Reports.
Right of Way Dispute Surveys and Reports for Court
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