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This concerned a pair of semi detached houses that were not touching. They had both extended over their garage areas so as to be almost touching. One of them trying to alter the boundary so as to be able to access the gap between them. The available conveyance plan was unhelpful as it was very vague. Fortunately there was an almost complete set of ancient boundary posts in the rear garden and the conveyance plan was clear as to responsibility for the original wall separating the front driveways.
Click image for larger plan
A rather sketchy conveyance plan of the properties trying to move the boundary. Only useful for identifying ownership of the boundary. The open area at the side of the property has now been extended over right to the boundary preventing them accessing the side.
Click image for larger plan
Front of the two properties. 47 on the left. 49 on the right. Both have been extended so as to almost touch
Other houses have similar walls suggesting that the drive dividing wall is original.
General view of the rear garden. The house over the fence wanted to move the boundary from its existing position to the edge of the lawn. The bank had been occupied by a hedge which 49 claimed to be theirs.
Note the covered store of the property on the right between the fence and single storey extension.
Base of post and some lying on the ground. The corrosion suggests they are ancient if not original.
Markers showing the location of each post for measurement by the laser. It can be seen that they approximate to the existing mesh and timber fences.
Top of old metal post between the covered store and extension of the neighbour wanting to expand the boundary.
The post looking from within the gap between the houses.
Brick pier supporting the extension of the defendant sitting in the wall that is likely to belong the property beyond the wall.
23rd July 2021
Mr S
47 Rowley Lane
Dear Sir
47 and 49 Rowley Lane
Conveyance 27th September 1938 of 47 Rowley Lane. Not able to purchase from the Land Registry.
Conveyance 26th June 1939 of 47 Rowley Lane.
Not able to purchase from the Land Registry.
Conveyance Plan only of 49 from a 1964 conveyance. Appendix 3.
Survey Hub plan of 49 and notes. Appendices 4 and 5.
1:100 and 1:200 plans of 47 drawn by Steve Butler. Appendices 6 and 7.
Mr Justice Barker summarized much of the boundary law that had gone before in the case of and Severn in 2011. I shall follow his guidelines for determining a boundary as I do in preparing any reports on boundaries. I can see no reason why his guidelines should not be extended to the consideration of express rights of way and the acquisition of rights of way or by prescription, just as he says that boundaries can be expanded by adverse possession at Point (i) of his comments which are set out below.
Comments of Mr Justice Barker:
a. ‘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:
b. 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.”
c. 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.
d. 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.
e. 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.
f. Admissible extrinsic evidence may also include evidence of subsequent conduct where of probative value in showing what the original parties intended.
g. 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.
h. 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).
i. 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.
j. 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.
k. 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.
l. 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.
Statement of Truth
This report is prepared in accordance with the Royal Institution of Chartered Surveyors Expert Witness Practice Statement.
I Steven JM Butler DECLARE THAT:
1. I understand that my duty in providing written reports and giving evidence is to help the Court, and that this duty overrides any obligation to the party by whom I am engaged or the person who has paid or is liable to pay me. I confirm that I have complied and will continue to comply with my duty.
2. I confirm that I have not entered into any arrangement where the amount or payment of my fees is in any way dependent on the outcome of the case.
3. I know of no conflict of interest of any kind, other than any which I have disclosed in my report.
4. I do not consider that any interest which I have disclosed affects my suitability as an expert witness on any issues on which I have given evidence.
5. I will advise the party by whom I am instructed if, between the date of my report and the trial, there is any change in circumstances which affects my answers to points 3 and 4 above.
6. I have shown the sources of all information I have used.
7. I have exercised reasonable care and skill in order to be accurate and complete in preparing this report.
8. I have endeavored to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion.
9. I have not, without forming an independent view, included or excluded anything which has been suggested to me by others, including my instructing lawyers.
10. I will notify those instructing me immediately and confirm in writing if, for any reason, my existing report requires any correction or qualification.
11. I understand that –
a. my report will form the evidence to be given under oath or affirmation;
b. questions may be put to me in writing for the purposes of clarifying my report and that my answers shall be treated as part of my report and covered by my statement of truth;
c. the Court may at any stage direct a discussion to take place between experts for the purpose of identifying and discussing the expert issues in the proceedings, where possible reaching an agreed opinion on those issues and identifying what action, if any, may be taken to resolve any of the outstanding issues between the parties;
d. the Court may direct that following a discussion between the experts that a statement should be prepared showing those issues which are agreed, and those issues which are not agreed, together with a summary of the reasons for disagreeing;
e. I may be required to attend Court to be cross-examined on my report; and
f. I am likely to be the subject of public adverse criticism by the judge if the Court concludes that I have not taken reasonable care in trying to meet the standards set out above.
STATEMENT OF TRUTH I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
Signature Date
SJM Butler 23/07/2021
14th March 2022