Layout 1NIAMH O’REILLY and PATRICK SHINE explain how Chartered Surveyors can have a crucial role in resolving boundary disputes.

Boundary disputes between neighbours are wretched affairs, fought with a passion that can be way out of proportion to the issue concerned. They can cause misery, hostility and stress between neighbours, which can go on for generations, and often lead to costs that are grossly disproportionate to the value being fought over.

Situations whereby householders wish to extend, develop or improve their property can result in neighbours feeling that their rights are being impinged upon. Improvements to the property may require the reconstruction of the existing boundary wall to support a new extension, which may encroach into the neighbours’ garden, causing grievance and animosity. Boundary disputes can arise over many different issues and can be related to shared access ways, rights to light, drainage rights, overhanging tree, air rights, sub strata rights and squatters’ rights, to name a few. Irrespective of the reason for the dispute, they have the potential to last for years and have a terrible impact on the lives of all those involved.

From a commercial perspective boundary issues can arise where a lessee wishes to exercise their rights under landlord and tenant legislation to acquire the fee simple interest in the lands they have leased. Legacy boundary issues may exist in the deeds maps that have previously been left unresolved when successive short-term leases were assigned. This will inevitably result in delays in the acquisition or disposal of the interest.

Establishing who is in the right requires the true position of the legal boundary to be established. This is where the skills and expertise of the Chartered Surveyor come into play, as establishing where the legal boundary is, as opposed to where the physical boundary is, requires an examination of all deed documents and then requires the surveyor to relate this information back to the ground.

Boundary types
When considering boundary disputes, it must be emphasised that the issue is frequently a matter of interpretation between the boundary of the  respective legal titles to the properties concerned, and the actual physical boundary as represented by a wall, hedge or fence on the ground. If there is a difference between these two ‘boundaries’ there is potential for a dispute.

When working with a boundary dispute it is important to be able to distinguish between these two types of boundaries. The legal boundary consists of an ‘invisible line’ that divides the two properties and is based on its description in the title deed and/or deed map, and as such has no width. The earliest conveyance deed and plan that describe the parcel of land whose boundary is being investigated is accepted as the source of the legal boundary. The deed map must be used to define the position of the legal boundary on site. If this legal boundary is set out on a site that already has a physical boundary, such as a wall, hedge or fence, differences in alignment frequently become apparent.

The physical boundary of a property refers to the actual physical boundary on the ground, which includes fences, walls or hedges, or any other features that can be used to show physical boundaries on a map.

Ordnance Survey Ireland (OSi) is the national mapping agency of Ireland and is responsible for the official, definitive topographic mapping in the Republic. Maps produced by OSi represent physical features on the ground at the time of survey, and are shown within specification for the survey scales and within agreed accuracy tolerances. It is imperative to appreciate that these maps do not indicate legal property boundaries, nor do they indicate ownership of physical features on the ground.

The type of accuracies that can be expected from an OSi map are indicated in Table 1 and are taken from an OSi positional accuracy quality assessment programme, which was carried out between 2004 and 2011 to assess the positional accuracy of OSi large-scale mapping.

All boundary features on OSi maps are shown using the same line symbol. It is worth noting that given the constraints imposed by map scale, features that are in close proximity to one another, such as a fence and hedge, cannot be individually represented on the map and are shown only as one line.

Ordnance survey maps may be used, under licence, by surveyors in the preparation of deed maps. They are also used by the Land Registry in the preparation of Land Registry maps.

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Table 1. Results from OSi positional accuracy quality assessment 2004 to 2011.

Recording land ownership information
In Ireland there are two systems for recording land ownership information, which sit side by side – namely the Registry of Deeds and the Land Registry. Both systems are controlled and managed by the Property Registration Authority (PRA), whose responsibilities also include promoting and extending registration of ownership of land in Ireland.

The Registry of Deeds provides a system of voluntary registration for deeds and conveyances including indentures and transfers affecting land. Priority is given to registered deeds over unregistered registerable deeds. The Registry of Deeds retains a Memorial, or summary, of the deeds. This Memorial contains the essential elements of the deed. It does not contain a map and occasionally contains some dimensions, which may be of use to the surveyor in resolving boundary issues. The deeds, with their attached deed maps, are returned to the solicitor when registration is completed.

The deed records and describes the legal ownership of a property and can be accompanied by a deed map. Deed maps are prepared specifically to define the extent and boundaries of land that is the subject of a legal agreement or transaction, such as a conveyance or assignment, and are prepared for attachment to the deed concerned. Surveyors preparing deed maps frequently use an OSi map as the base or background map. This is very useful as it provides geographic context and facilitates comparison with other maps prepared on the same base map. While the full map is generally referred to as the ‘deed map’, it should be emphasised that only the boundaries of the specific property that is the subject of the deed, and has been dimensioned and delineated accordingly by the surveyor, can be considered as accurate and used to define and set out a legal boundary. The surveyor is responsible for this map irrespective of the use of OSi information. Deed maps generally provide dimensions of the property in question and indicate where it is positioned in relation to other physical features on the ground.

The second system for recording information about land ownership is the Land Registry, which registers title and provides a comprehensive and secure system of land registration. When property title is registered in the Land Registry the deeds are filed in the Registry and all relevant particulars concerning the property and its ownership are entered on folios, which form the registers maintained in the Land Registry. In conjunction with folios, the Land Registry also maintains Land Registry maps, whose purpose is identification of properties and not of boundaries. The Land Registry identifies the location of all registered land by reference to OSi urban and rural large-scale topographic maps.

The boundary system adopted by the Land Registry under the Registration of Title Act, 1964, is a non-conclusive boundary system, occasionally referred to as a general boundary system. This dispenses with the need for determining the exact location of title boundaries when registering properties. The ownership of the physical features that mark the limits of a property are, therefore, left undetermined. Consequently, the Land Registry map will not indicate whether the title includes a hedge or a wall or ditch.

Furthermore, it will not indicate if the boundary runs along the inner or outer face of a wall or where it runs within it. In the case of boundaries located within buildings, the exact line or plane of the title boundary will also be left undetermined.

Resolving boundary disputes
Resolving boundary disputes requires the skills and expertise of both surveyors and lawyers, who work together as a team. The lawyer will provide all necessary deeds and documentation, and an interpretation of these as required by the surveyor for their investigation into determining the legal position of the boundary, while the surveyor will provide the lawyer with independent advice relating to the spatial aspects of the property.

The deed map must be used to define the position of the legal boundary on site. If this legal boundary is set out on a site that a already has a physical boundary such as a wall, hedge or fence, differences in alignment frequently become apparent. These are usually problematic unless the parties concerned understand the nature and significance of the respective ‘boundaries’. If the physical boundary was in place before the survey for preparation of the deed map was carried out, the deed map is then likely to state whether the legal boundary runs along the centre of the wall or fence or hedge, along one or other face of the wall or fence, or a defined distance from the centre of the hedge. If the physical boundary was subsequently removed and re-established along a different alignment, a carefully dimensioned deed map will reveal the extent of this shift. If, however, the physical boundary was put in place after the preparation of the deed map, it is possible that differences between the legal boundary as defined by the deed map and the actual position of the wall, fence, etc., will become apparent irrespective of the efforts of the builder to adhere to the precise line as defined by the deed map.

If the anomaly between the deed map boundary and the physical boundary on site exists, and remains unchallenged for a specific length of time – 12 years in some situations – a question of adverse possession may arise. This situation requires legal advice. It should be noted that if a property owner gains a strip of land through adverse possession, his/her title to their principal property will not extend to this strip. He/she will hold a possessory interest in the strip, which may be based on the interest the dispossessed party held.

Role of the Chartered Surveyor
Parties to a dispute are advised to engage the services of a professional such as a Chartered Geomatics Surveyor, who will survey and measure the land, check the relevant parts of the deeds and deed maps attached to them, and refer to historical documents and aerial photographs in order to resolve these boundary issues. The purpose of this is to collect evidence and present it on a map or series of maps, which most likely will have dimensions shown on them to enable a reasoned opinion to be given to resolve the issue. This may be accompanied by the surveyors’ report, which will highlight relevant spatial issues. The surveyor may also be required to provide a court with the necessary expert opinion.

Mediation
Most boundary disputes are well suited to mediation, which has become an increasingly popular alternative to the courts for resolving disputes. Mediation has the potential to preserve a civilised relationship between neighbours and prevent unnecessary costly litigation. The process provides the parties with an opportunity to address any underlying issues, which may have acted as a catalyst in the escalation of the boundary dispute.

Under the Draft Mediation Bill 2012, legislation is being considered to introduce an obligation on solicitors and barristers to advise any person wishing to commence court proceedings to consider mediation as a means of resolving a dispute before embarking on such proceedings. This would allow individuals to resolve disagreements with their neighbours more quickly and cost effectively than if they had to resort to the courts.

The proverb ‘good fences make good neighbours’ has stood the test of time, but if the fence starts to crumble it doesn’t always follow that neighbourly relations have to go the same way!

The Geomatics Professional Group has recently launched its second edition guidance note ‘Boundaries: Procedures for Boundary Identification, Demarcation and Dispute Resolution in Ireland’, which is available from www.scsi.ie.

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Niamh O’Reilly
Niamh is Chair of the Society’s Geomatics
Professional Group.

 

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Patrick Shine
Patrick is a Chartered Geomatics Surveyor and
Chartered Civil Engineer, and was formerly head of
Dublin City Council’s Engineering Department’s
Survey and Legal Mapping Division.