PATRICK SHINE looks at the issues around defining boundaries.
Property boundaries, whether residential, commercial or agricultural, are frequently the subject of disagreement and litigation. Boundary issues often arise during a conveyancing or leasing process and lead to delays that can potentially result in the loss of the sale and/or a missed opportunity for investment or development.
The professional advisers involved are often powerless to move things on and what should be a fairly standard transaction becomes bogged down in a frustrating, drawn-out and inevitably contentious boundary problem. More often than not it centres on an apparently minor issue that defies timely resolution.
“Boundary issues often arise during a conveyancing or leasing process and lead to delays that can potentially result in the loss of a sale and/or a missed opportunity for investment or development.”
Deed maps: a surveyor’s best friend
When dealing with boundary issues, two aspects to be considered are:
(a) the technical or spatial issues that cause the problems; and,
(b) the means by which problems can be avoided.
The key document that professionals involved in determining both (a) and (b) are dependent on is the deed map, which shows the legal boundary to a property.
All boundary problems arising from issues including misaligned walls/fences, double fences/hedges, misunderstandings about party walls, encroachments, overhanging roofs, or physically undefined boundaries, are virtually impossible to assess and quantify without a good quality deed map. Resolution invariably involves negotiation and compromise. It can be protracted, contentious, and sometimes litigious and costly.
Professionals involved, principally geomatics surveyors (land surveyors), are at a significant disadvantage in advising or briefing solicitors. Solicitors in turn are put at a disadvantage in advising their clients if they cannot get definitive boundary information from surveyors. It follows that timely resolution to such boundary problems is dependent on the deed map.
Many practitioners rely on Ordnance Survey Ireland (OSi) maps or Land Registry/Property Registration Authority (PRA) maps for property identification and discussions leading to property transactions. However, despite professional advice, these maps are frequently used as deed maps. Their relatively small scale compounds the risk of legal boundaries based on them being misinterpreted. Hence the difficulties in quantifying and resolving subsequent boundary problems.
“A deed map should accurately represent the extent of the lands that are the subject of the deed. It should include surveyed details, dimensions and descriptive notes as appropriate. Such deed maps will enable timely resolution of boundary issues.”
OSi maps, while prepared to a high standard, are essentially maps showing physical features; they do not define legal boundaries to property. The Land Registry, which essentially provides a registration of title service, issues maps which are based on OSi maps and do not show definitive boundaries as the Land Registry/PRA operates a ‘non-conclusive’ boundary system.
Deed maps by definition show legal boundaries to properties, and address the related boundary questions as set out in a guidance note issued by the SCSI, entitled ‘Property and Land Boundaries – Checklist for Purchasers’. A deed is dependent on its attached deed
map to accurately define the extent of the title to the property, including the precise location of the legal boundary in relation to the physical boundary, e.g., hedge, fence or wall. OSi and PRA maps may occasionally be useful to geomatics surveyors in the preparation of deed maps.
However, a deed map should accurately represent the extent of the lands that are the subject of the deed. It should include surveyed detail, dimensions and descriptive notes as appropriate. Such deed maps will enable definitive assessment and timely resolution of boundary issues.
The boundary between sale and no sale
RONAN O’HARA describes two recent cases where disputes over boundaries led to huge problems.
Boundary disputes can be extremely contentious and often lead to a sale falling through. Having expert advice on hand can prove invaluable and, frankly, can be the difference between a sale or no sale.
Maps scupper €2m sale
In the first dispute, we had agreed a sale on a substantial house on approximately 0.5 acres. At some point, our vendor built an infill house in his garden, and his architect drew up a site map for the new house. His solicitor used this map to separate the title and produce a new map for the infill house next door.
When we agreed a sale, the buyers sent in their architects to do a survey and they formed the opinion that the map provided did not accurately reflect what was on the ground. On one side of the site, they believed we had slightly understated what was there in reality.
Despite several, rather heated, site meetings, with both sides and their architects present, they failed to reach any agreement and a €2m sale fell through.
We then advised our client to engage a professional firm of land surveyors to inspect the property and the maps, to ascertain whether they did or did not accurately reflect what was on the title. This firm came to the conclusion that the maps were broadly accurate and that the sale should not have fallen through.
We went back to the purchasers but they had moved their interest onto another property.
It was a very disappointing outcome, but at least now if we reach the sale agreed stage again, we have a definitive written report from a leading firm of land surveyors confirming that the title map is in order. This will ensure that the sale will not fall through again on the issue of boundaries.
Overhanging issue drags out sale
In another case, which was more involved and traumatic, the sale of a modest house had been agreed. When the buyer’s surveyor went in, he pointed out that the roof of the house was overhanging the roof of the neighbouring house.
We approached the neighbour to ask if he would sign a declaration confirming that he would not object to the overhang. The neighbour engaged his solicitor and was advised not to sign such a declaration until he was totally satisfied with the wording of it.
The neighbour wanted to know that if he ever wished to build an extension, this boundary wall would be able to support it. Our clients brought in an engineer who issued a report saying that the wall would support such an extension, but for him to comment on the foundations would require very costly and disruptive excavation to be carried out.
Finally, after much ado and with the vendors, buyers and ourselves at our wits’ end, it was decided to approach the engineer who had originally supervised the building of the offending extension. Thankfully, the company was still operating and had all the drawings and specifications of the job, which it provided to the surveyor.
The surveyor was then able to issue a new report confirming that the wall and foundations would support another extension if the neighbour ever wished to build one, and lo and behold a solution had been found. The neighbour signed the declaration and then the buyer of the house was happy to sign the contracts and proceed with the purchase.
The moral of the story is that if a client has an extension overhanging another property or if for any reason they have moved the boundary wall or fence, we strongly advise that they engage a professional firm of land or structural surveyors. They will be able to give a report confirming that the wall, fence or extension is in order and this will save an incredible amount of heartache, which we regularly see in the course of our work. Buying or selling a home can be a stressful enough experience so make sure all your client’s paperwork is in order and save them a world of pain!
Director of Sherry FitzGerald, and Chairman of the Residential Professional Group of the SCSI.
Chartered Geomatics Surveyor and Chartered Civil Engineer, and former Head of Surveying and Legal Mapping, Dublin City Council.