About boundaries

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Boundaries are unexpected. They are fascinating to work with and can be emotionally draining to live with. They both create and avoid conflict and can go from invisibility to blindingly obvious in an instant.

They are never a problem until they are, and when they are, they become the most important thing in your life and drive incredible emotions leading to irrational and often unbelievable behaviour from normally respectable and calm people.

This article is just a few rambling observations from my time over the past few years dealing with land boundary matters and disputes.

One thing stands out as a common theme in all cases I have dealt with. Boundaries are about relationships. The relationship between the land owners standing either side of a boundary is all that counts. A good relationship rarely leads to dispute, but a poor relationship inevitably does.

This is what interests me about this field of surveying – it’s great playing with advanced measurement technologies and all the clever stuff, but no amount of precision or accuracy or logic matters when agreement between owners can’t be reached. A surveyor with all their expertise and gadgets can do no more than give an opinion – the only people who can actually agree the position of the boundary are the respective land owners staring at each other over the fence. That is, unless the emergency ripcord is pulled and a judge in court steps in.  This is where it gets messy and unpleasant and expensive and damaging.

Avoiding deteriorating relationships is central to resolving boundary issues, and avoiding the expense of litigation must be seen as essential. The cost of legal proceedings usually far outweighs the value of the disputed land.

My advice is simple:

• Preserve goodwill and a positive relationship between parties at all costs. Do not let this deteriorate if at all possible. Once lost, it is almost never regained and the path will be set leading to a poor outcome;

• Work together with your neighbour to jointly resolve the disagreement – with or without professional help. Unilateral approaches are always more time consuming and expensive and undermine any goodwill remaining;

• Strive for an “amicable boundary agreement”. This is much less costly than entering full dispute with the threat of litigation and, although less formal, can be made robust if recorded and documented by a surveyor and solicitor.

Even with this positive foundation, boundaries and disputes are challenging to resolve due to the nature of the beast. In the UK, boundaries are rarely recorded precisely. Some parts of the world attempt to do this by installing physical monuments such as lumps of ferrous metal buried at key boundary corners to be found by surveyors. However, this works if used consistently and the integrity of the monuments can be managed – how hard can it be to dig one up and move it should someone be inclined to break the local laws?

Our boundaries have evolved over centuries from ancient feudal times, through land clearances, and through the rapid mass urbanisation of the industrial revolution. Even if a boundary could be defined precisely at the point of creation – ie by a nice shiny new fence – over time it will degrade, be replaced, and its location will wander from the original position unless it is very robust such as something like Hadrian’s Wall ( and even this is subject to movement over centuries).

Over long time periods maintaining preciseness of boundary information is a staggeringly difficult task and is unlikely to be wholly successful regardless of the methods used. Preciseness at the point of survey and mapping is simple, but maintaining preciseness over time is not. Even buried physical boundary monuments can be ploughed over, or excavated by mistake by a new development.

This is one of the many reasons that the UK has adopted an approach based on defining boundaries “in general” rather than precisely. A conveyance or title registration plan is intended to give an indication of the location of a boundary. These boundaries are termed General Boundaries and the act of agreeing exactly where they lie returns to the principles mentioned earlier – ie by agreement between the respective land owners based on a view of what is on the ground at the time of agreement.

The exception to this is where a boundary has previously been “determined” and recorded more precisely in His Majesty’s Land Registry documentation. Of all the boundaries recorded by HMLR, these only represent a small fraction.

Returning to the practical side of boundary work for a surveyor, it doesn’t take too long mulling this over to realise that every boundary is a potential dispute in the making. Most issues arise when a boundary is messed with, or where a new boundary is installed. This triggers action amongst landowners like nothing else. Ears prick up, eyebrows get raised, feathers get ruffled and tensions rise.  This can quickly degenerate into unpleasantness and relationships can go from bad to worse.  Unfortunately, it is often beyond this point that surveyors get involved and the ambition of agreeing amicably or even jointly appointing a surveyor is buried in the reality of a view from the trenches.  All too often have I seen reasonable, respectable and kind people reduced to tears and uncontrollable anger over a matter of inches!

The approach to resolving disputes is based on understanding the historic nature of our boundary system, and by recognising the principle and importance of land owner agreement in the resolution. More often than not no one really knows where the boundary lies precisely, the resolution is more about agreement based on sensible deductions, rather than precision of measurement.  The issue will not be resolved without agreement - the term agreement is central and not measurement.

Turning to how a surveyor resolves boundary issues, this is all about classic evidence-based investigation and reasoning. Diving straight into precision measurements rarely leads directly to an outcome. Balance is essential and this is one difficulty with the usual circumstances where an aggrieved party has contracted a surveyor beyond the point of no return and provides one side of the issue, precluding open discussion with the other side. Every single boundary without exception has two sides – and two views of where it should be.

Boundary investigations are about trying to ensure these two views end up in the same place with both parties in agreement. This means one of two things: someone is right or both are wrong, since the only way both can be right is if they agree on the location, hence no issue. 

Strangely it is the case when one party is right that is the hardest to reach agreement. Human nature being what it is, pride is a powerful motivator and it is very difficult for one party to step back and admit defeat even when it is clear as day where a boundary lies. The case where both parties are wrong is often an easier deal since both are sometimes more open to compromise. However, this is also dangerous territory for the surveyor in that care needs to be taken to be crystal clear regarding independence – it is very easy for the surveyor to be seen as partisan and very quickly become part of the problem. This is a good reason to encourage joint appointing between the respective owners.

There is some very good practical guidance regarding methods for boundary surveys such as the RICS Professional Standard: Boundaries: Procedures for boundary identification, demarcation and dispute resolution  based on real experiences of surveyors over decades. Note the reference to dispute resolution – again to be clear, no boundary investigation is worth doing if the outcome is not aimed at agreement between landowners.

All of this advice generally follows the following logic:

What is the origin of the original boundary agreement? 

What was the intention of the respective landowners when the boundary was agreed? This entails analysis of all sorts of historic information from legal titles, conveyance notes and maps, old photographs and letters and literally anything that can give a hint as to what was intended at the time;
 

Is there any evidence of change? 

If the boundary has changed over time, what evidence is there that this was either by agreement, or by natural wandering? Was land transferred legally between parties at some point, or did someone replace a boundary in a different location without agreement or anyone noticing?
 

What is on the ground now? 

What lies on the ground now – an accurate representation of the current locations of the boundary and its surroundings. This is classically what a surveyor is seen to do – ie observing, measuring things and drawing a map. This is a necessary step but insufficient in itself without the outputs of steps one and two. The physical investigation of what is on the ground is a key element in tying the present to the past and to the original intentions for the boundary. This is where attention to detail and preciseness pay dividends and where the surveyor often adds most value;
 

The analysis

What does the history tell us about the intended location of the boundary? How has the boundary changed over time, and is there any evidence of the legal agreement changing with it? What are we faced with on the ground now, and how does that compare with the intention of the original boundary plus any legal changes?

The outcome

Is there sufficient information to deduce a sensible opinion regarding the location of the boundary? If there is, do both parties agree? If not, the dispute continues its weary path towards litigation. If there is insufficient information for a deduction, is there the possibility of the parties agreeing to define anew and abide by a new agreement? If not, again, the dispute continues.

On the legal front, boundary disputes fall under civil law and decisions are based on the balance of probability, rather than beyond reasonable doubt as in criminal law. This is significant and landowners must understand the implications of this should they proceed to litigation. 

Most boundary cases will be inconclusive by the time they reach court – since a clear cut case is likely to be resolved much earlier – this means that the outcome can swing either way depending on minor evidence differences. It may be a 55:45 decision that determines who pays the enormous legal costs and who gets their own way.

This is one reason courts discourage boundary litigation in favour Alternative Dispute Resolution approaches.  Should an amicable agreement be elusive, there are a number of other options open to landowners before the terrors of litigation. Mediation is one approach where an independent third party facilitates agreement between the parties.

All of these latter stages are, however, expensive and damaging to relationships between neighbours. It is far better to avoid this in the first place and hold onto any goodwill at the beginning - and really really try to resolve amicably.

As for the surveyor,  understanding human relationships is just as important as handling a tape measure or total station - to resolve the issue it is essential not to become part of the problem.