Discovering that the title plan for a property does not appear to match what is physically on the ground can be concerning, particularly if you are in the middle of buying or selling a house.
Perhaps a fence appears to be in a different position from the boundary shown on the plan. Part of a garden may appear to fall outside the registered title, or a driveway, garage or extension may not seem to correspond with the Land Registry records.
A discrepancy does not necessarily mean that someone has taken part of your land or that the title is defective. Most title plans registered with HM Land Registry show general boundaries only, rather than establishing the precise legal line separating one property from another.
However, some discrepancies do require investigation. If you are buying or selling a property and the title plan appears not to match what you can see, AFG Law’s Residential Property team can review the title and relevant documents and advise on the steps required.
What does a Land Registry title plan actually show?
When land is registered, HM Land Registry creates a title register and title plan. The Land Registry title plan provides a graphical representation of the general extent of the land included within the title.
The plan is generally based on Ordnance Survey mapping. The fact that the title plan shows land edged in red does not mean that the red edging identifies the precise position of the property’s legal boundary.
Under Section 60 of the Land Registration Act 2002, the boundary of a registered estate shown for the purposes of the register is a general boundary unless it has been recorded as a determined boundary.
The legislation expressly provides that a general boundary does not determine the exact line of the boundary. This is important because people sometimes try to use measurements from the title plan to establish exactly where a fence, wall or hedge should stand. That is generally not what the title plan is designed to do.
What is the difference between a legal and physical boundary?
The legal boundary is the invisible line separating one person’s land from another person’s land. A physical boundary is something that can actually be seen on the ground. It could be a wall, fence, hedge, ditch or another boundary feature. However, the two are not necessarily identical.
A fence could have been replaced in a slightly different position, for example. A hedge may have grown considerably since a property was first registered. Equally, the legal boundary might run through the centre of a wall or hedge rather than along one particular side.
This means the position of a physical feature on the ground cannot automatically be treated as definitive evidence of the legal boundary. Similarly, the title plan should not automatically be treated as showing that a fence is in the wrong position simply because the two do not appear to line up precisely.
Why might the title plan not match the property?
There are several possible explanations for why a title plan may not match the property. The first is simply the general boundaries rule. The title plan may accurately show the general extent of the property without identifying the exact position of every boundary.
Ordnance Survey mapping also has limitations of scale and accuracy. Title plans may have been prepared using the mapping available when the land was originally registered, while physical features can subsequently change. In other cases, however, there may be a genuine title issue.
For example:
- a fence or wall may have been moved;
- part of the garden may not be included within the registered title;
- land may be registered under a separate title;
- an extension, garage or driveway may extend into an area that requires further investigation;
- historic deeds may describe the land differently;
- an error may have occurred in the title plan; or
- neighbouring property owners may disagree about where the boundary lies.
The cause therefore needs to be established before deciding what should be done.
What should I do if I notice a discrepancy while buying a house?
If you notice a discrepancy, you should tell your conveyancer as soon as possible.
A buyer should compare the title information with the property they believe they are purchasing. If there is an obvious discrepancy, it is better to investigate it before exchange of contracts rather than discover the problem after completion.
Your conveyancer may review the title register, title plan, historic deeds and other documents referred to in the register. Enquiries may also need to be raised with the seller.
The important question is often not simply whether the red line looks slightly different from a fence. It is whether the legal title includes the house, garden, driveway, parking space and other land that you reasonably expect to acquire.
If there are significant boundary issues, further evidence or specialist advice may be required before the transaction proceeds.
What if I’m selling and my title plan doesn’t match my garden?
The same principle applies to sellers when title plans don’t match. If part of the garden or another area that you have been using does not appear to fall within your registered title, tell your conveyancer rather than waiting for the buyer’s solicitor to discover it.
Further investigation may establish that there is no problem because the discrepancy falls within the general boundaries rule.
Alternatively, it could reveal that part of the land is registered separately, remains unregistered or requires another form of legal action. Trying to resolve the issue early can reduce the risk of it delaying the transaction once a buyer has been found.
How is the exact position of a boundary established?
Where the position of a boundary genuinely needs to be established, the title plan is only one part of the evidence. Relevant evidence can include the original conveyance or transfer, historic deeds and plans, descriptions of the land and evidence of physical features that existed when the relevant documents were created.
In some cases, a specialist boundary surveyor may be needed to examine the site and documentary evidence. The correct approach depends on the nature of the discrepancy. A small apparent difference between a plan and a fence is very different from two neighbours each claiming ownership of a strip of land.
Can neighbours agree where the boundary is?
Yes. Where neighbours agree about the position of the boundary, they can potentially record their understanding through a boundary agreement.
A boundary agreement can describe the position of the boundary more precisely than the general title plan. For example, neighbouring owners might agree that the boundary runs through the centre of a particular hedge or follows a specified wall.
An agreement can also address responsibility for maintaining a boundary feature. Where at least one property is registered, an application can potentially be made for the agreement to be noted on the register.
Importantly, recording a boundary agreement does not itself turn a general boundary into a determined boundary. Boundary agreements and determined boundaries are separate mechanisms and should not be confused.
What is a determined boundary?
Most properties do not need an exact boundary formally recorded. However, the Land Registration Acts and associated rules provide a process through which the exact line can be recorded in appropriate circumstances.
A determined boundary application asks HM Land Registry to record the precise line of the boundary under Section 60 of the Land Registration Act 2002.
This requires considerably more precision than an ordinary title plan. The exact line must be identified on an appropriate plan and supported by evidence. In practice, HM Land Registry says the plan will almost always need to be prepared by a chartered land surveyor.
The adjoining owners must also be identified. If the application proceeds and the neighbour objects, the matter can ultimately be referred to the First-tier Tribunal if agreement cannot be reached.
A determined boundary application should therefore not be made casually simply because a fence appears slightly out of line with the red edging on a title plan.
Can HM Land Registry resolve a boundary dispute?
HM Land Registry cannot simply decide a boundary dispute between neighbours because one owner believes the boundary should be in a particular place. If neighbours disagree about the exact legal boundary, evidence may need to be considered and attempts made to resolve the disagreement.
Negotiation can sometimes result in an agreed solution. Mediation may also be appropriate. Where agreement cannot be reached, court or tribunal proceedings may ultimately be necessary to determine the parties’ rights.
Boundary disputes can become disproportionately expensive, particularly where disagreements about relatively small areas of land become entrenched. Obtaining legal advice before taking formal action can therefore be important.
Can the Land Registry title plan be corrected?
If there is an actual mistake in the title plan, rather than simply a difference caused by the general boundaries rule, it may be possible to have the position investigated by HM Land Registry.
Evidence will be required to explain why the plan is believed to be wrong. This could include historic deeds and other relevant documents.
If HM Land Registry accepts that an error has occurred, it can explain what is required to correct or alter the register.
It is therefore important to distinguish between an actual mistake and a title plan that is simply doing what most title plans do: showing the property’s general extent rather than the exact boundary.
Can a title plan problem stop a property sale?
Potentially, but not every discrepancy will prevent a sale. A buyer and their mortgage lender need to be satisfied that the seller has good title to the property being sold. A significant discrepancy involving access, a driveway, part of a building or a substantial section of garden can therefore require further investigation.
Depending on the circumstances, the solution could involve obtaining additional evidence, correcting the register, reaching an agreement with a neighbouring owner or dealing with another title. The important point is to investigate the problem rather than assume that the red line either proves or disproves ownership.
How can AFG Law help with property boundary and title issues?
Problems involving property boundaries can range from straightforward conveyancing queries to substantial disputes between neighbouring owners.
AFG Law’s Residential Property team can review the title register, title plan and supporting documents where a discrepancy arises during a sale or purchase and advise on what needs to happen before the transaction progresses.
Where the issue has developed into a disagreement between neighbouring property owners, AFG Law also has a Dispute Resolution team experienced in property and boundary disputes.
If your title plan does not appear to match your property, contact AFG Law for advice before moving a boundary feature, agreeing a sale or assuming that the Land Registry plan establishes the exact legal boundary.