Boundary disputes between residential neighbours are a common problem in property litigation. Due to their contentious nature, it is not uncommon for them to proceed to court for determination. It is crucial that the correct procedure is chosen if there is a real dispute about the position of the boundary, and an application to the Land Registry for boundary determination may not be appropriate.
Process of Boundary Determination
When someone wishes to have a boundary line determined, they can make an application to the Land Registry. The party applying will need to file a plan in support of the application which states accurately where they contend the boundary lies. The Land Registry will serve notice upon adjoining owners and will proceed to determine the boundary if it is not contested, or if any objection received is clearly groundless.
In the event that it becomes a contested issue, the matter will be referred to the First Tier Tribunal for determination.
Murdoch v Amesbury
In a recent case of Murdoch v Amesbury [2016] UKUT 3 (TCC), Murdoch made an application to the Land Registry for a boundary to be determined. The application contained a plan depicting the boundary that was sought. Amesbury objected to the application and it was referred to the First Tier Tribunal for determination.
At the hearing, the First Tier Tribunal judge directed that the application should be cancelled on the basis that Murdoch lacked evidence to support the boundary that was contended for. During the hearing, the judge went on to make findings about the position of the legal boundary.
Amesbury then made a separate application to register the boundary in line with the findings made by the judge at the First Tier Tribunal. Murdoch subsequently appealed and the matter was dealt with by the Upper Tribunal. The appeal was allowed on the basis that the First Tier Tribunal only had jurisdiction to direct that the registrar should either give effect to the application or cancel it outright. The Upper Tribunal ruled that if the applicant cannot adduce evidence to substantiate the accuracy of the plan submitted with the application then the application should be cancelled. The First Tier Tribunal does not have the jurisdiction to go on to consider where the boundary does lie.
The Upper Tribunal ruled that, as a creature of statute, the First Tier Tribunal only has the authority granted to it by statute and did not have the ability to use the procedure to determine where the boundary actually lay. It commented that the First Tier Tribunal could have used its discretion under s110 of the Land Registration Act 2002 to refer the issue to Court.
Conclusion
This case serves as a reminder that the procedure for the determination of a boundary is not the correct procedure to use where there is a boundary dispute. If there is an agreement of the boundary line or substantial evidence in deeds, then such an application would be correct. However if there is any dispute whatsoever, an alternative application will need to be made, such as an adverse possession or a rectification of title.
