Land Registry Practice Guide 40 – Land Registry plans – Supplement 4 – Boundary agreements and determined boundaries

Issued: June 2012

Scope of this guide

This supplement describes boundary agreements, determined boundaries and the application process.

1 Abbreviations used

In this guide:

‘LRA 2002 means the Land Registration Act 2002

‘LRR 2003’ means the Land Registration Rules 2003.

2 Boundary agreements

A boundary agreement may be appropriate where two owners have come to an agreement regarding the boundary between their respective properties. This may relate to the position of the legal boundary and/or boundary maintenance. This supplement is concerned only with those boundary agreements that deal with the position of the legal boundary.

For example, the owners may agree that the boundary dividing their properties is the root of a hedge (and that each will keep the hedge trimmed). Another example might be where a post and rail fence and a post and wire fence run close together between two properties and the owners agree on which of them marks the boundary.

It is generally best to record the boundary agreement formally by setting it down in a document, particularly if the agreement is to be recorded in the register of title. See section 3 How to get a boundary agreement recorded in the register.

The boundaries of property shown for the purposes of the register do not cease to be general boundaries just because the boundaries concerned are the subject of a boundary agreement. However, the boundary agreement is likely to be treated by the court, in the event of a dispute, as evidence of where, more exactly, the boundaries lie.

It seems from case law that a boundary agreement is capable of binding successors in title (although the legal basis for this has yet to be clarified). See, for example, Haycocks v Neville [2007] EWCA Civ 78.

Where two owners have agreed a new boundary line, maybe to improve access to one or both properties, and there is to be a transfer of land involved, a boundary agreement on its own is not appropriate. A conveyance (if the land is unregistered) or transfer (if the land is registered) is required, followed by registration. However, this may not be required where there is only a ‘trivial’ transfer of land involved: Joyce v Rigolli [2004] EWCA Civ 79.

3 How to get a boundary agreement recorded in the register

The registrar has power to amend the register of title for a number of purposes, one of which is ‘bringing the register up to date’. As a result, if the position of the boundary of a registered estate is identified more precisely in a boundary agreement than in the register, the agreement can be noted in the register in the property register section of the individual register concerned. The registered proprietor of the estate needs to make an application in form AP1 for the register to be amended. They will need to lodge a copy of the boundary agreement and pay a fee.

4 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 s.60, LRA 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’.

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 by the registered proprietor and (ideally) their neighbour, Land Registry will then show the boundary, in the register, as being a determined boundary and provide details.

It is not always possible for the owner to apply for a boundary to be shown in the register as determined. For example, in remote areas the location and nature of the boundary may make it prohibitively expensive for a surveyor to identify its exact line on a plan. This is because of the lack of suitable permanent physical features to relate it to or the applicant may not have the co-operation of the adjoining owner and be unable to produce the necessary evidence to establish the exact line of the boundary.

It should be noted that the process of agreeing the boundary line with a neighbour could itself generate forceful differences of opinion, perhaps where none had previously existed. In some circumstances this could lead to the boundary becoming disputed.

Please note: Land Registry is currently conducting a review of determined boundaries.

5 How to apply for a boundary to be shown in the register as determined

The first step is for the exact line of the boundary to be identified from whatever evidence is available. It must be identified by way of a plan or a plan and a verbal description and the plan must show sufficient surrounding physical features to allow the general position of the boundary to be identified on the Ordnance Survey map. See section 7 Determined boundary plan requirements.

All the owners of the land adjoining the boundary must also be identified, together with an address at which each of them may be given notice. ‘Owners’ mean those with a legal estate in land (freehold or leasehold) or a registered charge.

Where the adjoining land is not registered the applicant will need to provide evidence of the adjoining owner’s documentary title. We need this to verify that this is indeed the owner of the adjoining owner. We also need to check that the deeds contain no evidence showing the boundary in a different position. (Ideally the adjoining owner should lodge the original deeds under cover of a form FR1 and apply for voluntary first registration).

Because of the general boundaries rule mentioned in section 4 Determined boundaries, it is possible that a third party may own a drain or other land between two properties, even though the red edging on the two title plans is adjoining. Applicants should note this possibility.

Once a registered proprietor has done all this, he or she is then in a position to make an application to the registrar for the boundary to shown in the register as determined.
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 refer to the current fee order.

On receipt of the application, the registrar must decide whether he/she is satisfied that: (i) the plan, or plan and verbal description, identifies 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) he/she can identify all the owners of the land adjoining the boundary and has an address at which each owner may be given notice. If he/she is so satisfied, he must give the adjoining owners notice of the application, unless the evidence relied on and lodged with the application includes an agreement in writing with that 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 from the adjoining owner(s). If the registrar is not satisfied as to (i), (ii) and (iii), he/she must cancel the application.

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 and survey reports.

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 Adjudicator to HM Land Registry unless the parties can reach agreement.

The Adjudicator is an independent judicial office established by the Land Registration Act 2002 to determine disputed Land Registry applications either by way of a hearing before the Adjudicator, one of his deputies or by directing one of the parties to issue proceedings in court. The Adjudicator may still reject a DB application but lack the power to determine that the boundary lies in a different position. In such cases the boundary will remain a general boundary.

6 The determined boundary plan

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 the plan should be prepared by such a professional.

A surveyor will normally survey the boundary to be determined in one of two ways:

• by the use of measurements from permanent features, or
• by the use of Ordnance Survey National Grid co-ordinates.

The use of measurements is the preferred and more practical method in areas with surrounding permanent features from which measurements can be taken.

Using National Grid co-ordinates would normally only be appropriate in remote areas where there is little in the way of suitable permanent features or where taped measurements would be excessively long. This method requires specialist surveying equipment and is likely to be the more expensive option.

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. 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 section 8 Use of permanent ground markers. Their position will need to be marked on the plan lodged with the application.

7 Determined boundary plan requirements

This section should be read in conjunction with Practice Guide 40 – Supplement 2 – Guidance for preparing plans for Land Registry applications, which describes general plan requirements applicable to all applications. A checklist of determined boundary plan requirements can be found at section 10 Appendix 1.

The plan supporting an application to determine a boundary:

• must clearly show the extent of the boundary to be determined by suitable reference such as colouring or edging
• must identify the start, end and any turning points of the determined boundary, preferably by way of lettered points
• must clearly show sufficient surrounding detail to allow the general position of the boundary to be identified on the Ordnance Survey map, and show its orientation, for example, a north point
• must be drawn to a stated scale - the preferred scale is no smaller than 1:200 and ideally no larger than A3 size (If necessary more than one plan can be used)
• must describe the relationship with physical features where the boundary coincides with them - for example, on which side of the physical feature the boundary runs, and/or through which point of the physical feature the boundary passes
• should describe those features used as points of reference in relation to the determined boundary, for example, “corner of the building” in the plan legend
• must only include information and detail that is relevant - any superfluous information that could clutter the plan or possibly contradict the relevant information should be left off, and any co-ordinates shown on the plan that are not National Grid co-ordinates must be removed
• must be signed by other owners where they have completed panel 9 of form DB, and
• must not bear any statement of disclaimer or endorsement which casts doubt on the accuracy of the plan such as ‘for identification purposes only’.

Further detailed plan requirements depend on whether the boundary is determined by measurements or National Grid Co-ordinates and are set out below.

7.1 Requirements for determined boundary plans where measurements are used

In addition to the requirements set out in section 7 Determined boundary plan requirements, any measurements shown on the plan must:

• be accurate to 10mm
• be taken horizontally – in other words, not along a slope
• be taken from at least two defined points on surrounding permanent physical features such as the corners of buildings.

Note: ‘Permanent features’ in this context are taken to be those which it is reasonable to assume will remain in position for at least 10 years. Measurements from features that are subject to natural growth or decay are not acceptable. See also section 8 Use of permanent ground markers.

Following consultations with the Royal Institution of Chartered Surveyors (RICS), The Survey Association (TSA) and Ordnance Survey, it was agreed as good practice for plans prepared by a chartered land surveyor or other suitably qualified professional to be endorsed with a certificate as to its accuracy as follows:

“I certify that the measurements shown on this plan are accurate to +/- 10mm”.

An example of a determined boundary plan using measurements is shown in section 11 Appendix 2 – Example of a determined boundary plan based on measurements.

7.2 Requirements for determined boundary plans where co-ordinates are used

In addition to the requirements set out in section 7 Determined boundary plan requirements, the following applies where the determined boundary plan is based on co-ordinates, or where co-ordinates are used as associated points of reference for measurements:

The only co-ordinates that will be accepted are National Grid co-ordinates. If they are used they must have an absolute (positional) accuracy of 300mm. The co-ordinates should be recorded as a set of two eight digit metric numbers with the eastings first, for example, Easting (m) 652,968.97, Northing (m) 303,713.39. If such co-ordinates appear on the plan we will require that Ordnance Survey, a chartered land surveyor or other suitably qualified professional endorses the plan with the following certificate:

“I certify that [the measurements shown on this plan are accurate to +/-10mm and that] the National Grid co-ordinates shown have an absolute (positional) accuracy of 300mm”.

8 Use of permanent ground markers

Permanent ground markers (PGMs) provide permanent reference locations for the placing of control points in surveying and are intended to be used for a long period of time. Where there is a lack of control from surrounding permanent physical features such as buildings, surveyors may use PGMs as control points.

The following are examples of PGMs:

• a bronze disc set in concrete
• an iron pipe filled with concrete
• a crosscut on an existing concrete structure or on a rock outcrop
• a hole drilled in concrete and filled with lead, or a metal rod driven into the ground with a centre-punched mark to designate the exact point.

Whilst wooden hubs or stakes may be used to mark out the boundary in a field, these are not PGMs as they can be more easily removed and can be subject to decay.

9 How the determined boundary is shown in the register

Reference to the determined boundary is made in the property register of each affected title. The general position of the determined boundary will be marked on the title plan of each affected registered title usually by way of lettered points. A filed copy of the determined boundary plan is retained and can be referred to in order to identify the exact line of the boundary.

10 Appendix 1 – Checklist of determined boundary plan requirements

Click here to view a printable version.

11 Appendix 2 – Example of a determined boundary plan based on measurements

12 Enquiries and comments

If you have a particular concern that is not covered by this guide, please contact Customer Support in advance of the transaction – see Contact details. If the transaction is particularly complex, it may be better if you make your enquiry in writing at the Land Registry office that will process your application. See Practice Guide 51 – Areas served by Land Registry offices.

If you have any comments or suggestions about our guides, please send them to:

Central Operations Group
Land Registry
Trafalgar House
1 Bedford Park
Croydon
CR0 2AQ

(DX 8888 Croydon 3)

You can obtain further copies of this and all our guides free from Customer Support or you can download them from our website in English and Welsh at www.landregistry.gov.uk