Boundaries, Natural Water Boundaries and Foreshore

General

The term boundary has no special meaning in law. In the context of property ownership, however, it can be considered to have several meanings.

The term boundary may be used to describe an imaginary or invisible line which divides one person's title from that of another. Such a line, by definition, has no width and can therefore only be an abstract concept which in practice can rarely be precisely reflected in any form of boundary demarcation on the Ordnance Survey (OS) map. However in Scotland deeds do attempt to define boundaries with a great deal of accuracy and, while the line of boundary may be described as being imaginary and invisible when it is stated to be 'the centre line of a wall' or 'the centre line of a hedge', it is certainly not imaginary or invisible when it is described as the inner or outer face of an existing wall.

Although the Keeper is not obliged under the 2012 Act to include this type of information in the title sheet, it has been decided that, where appropriate, the Keeper may clarify the legal extent of the property by including details, or boundary references, taken from the deed for extent of the actual position of a boundary in relation to a physical boundary feature (for example, where a boundary follows the centre line or inner face of a boundary feature). This type of reference is known as a boundary reference, and is normally included in a boundary note table in the property section of a title sheet. A second option is to include them by means of a boundary note that advises the reader of the title sheet that further information on the boundaries of the plot is narrated in a recorded or registered deed.

The term boundary may also be used to simply describe a physical feature (wall, fence, hedge, etc.) as being the title boundary and by not stating "centre line", "outer face" or "inner face", the deed so defining the boundary is really giving an imprecise definition of that boundary. So although a physical feature is referred to which can be identified on the plan, we are given no indication of whether none, half or all, of the feature falls within the title. Many deeds contain plans but in referring to these plans the deeds themselves may be imprecise referring only to 'the areas of land coloured red on the plan annexed hereto'.

A further point to be borne in mind when dealing with boundaries is their position when related to adjoining properties. Many deeds in Scotland do attempt to define boundaries with great accuracy but, although the boundaries are described in great detail and at great length in the deed, the plot shown on the deed plan or described in the deed itself is a 'floating shape' and the deed fails to relate the property's position to surrounding detail. If the plan or description does not allow the accurate identification of the location of the plot, the application does not meet the general conditions of registration and should be considered for rejection.

Whilst the precise position of physical features which demarcate boundaries may be determined by inspection on the ground, the extent to which their precise position on the ground may be recorded on a plan (for example, for land registration purposes) will largely depend on the accuracy of the survey and the criteria for accuracy laid down for the base scale of the particular OS map on which the property is shown. Even the most meticulous surveys with the most modern and highly accurate survey instruments are carried out within certain defined tolerances of error, and the large scale OS maps used as the basis for registration of title are no exception.

So, the main practical difficulties of establishing the precise position of the boundaries of a property for the purpose of registration of title can be summarised as follows:

• The OS maps used as the base map for the cadastral map have specified accuracy tolerances.
• Although many deeds in Scotland attempt to define boundaries with a very high degree of accuracy both by description and by plan, some of these descriptions and plans are 'floating shapes' not related accurately to surrounding detail on the OS map.
• The nature of physical boundaries is such that, unless the description in the deeds or the plans somehow draws particular attention to the precise position of the boundary in relation to those features (inner face, centre line etc), the relationship between the line of title boundaries and physical boundaries remains obscure and may never be definitively determined, either on the ground or in the conveyancing documents.

The need for accuracy when mapping a boundary

The many practical difficulties in portraying the line of the precise position of a title boundary do not remove the responsibility of the Keeper's staff to map a cadastral unit on the cadastral map as accurately as possible.

Decisions by plans officers on matters relating to boundaries are mainly concerned with assessing the degree of compatibility between the position of a boundary shown on a deed plan or described in a pre-registration deed, and a physical feature as it is shown on the OS map. Such consideration will determine whether or not the OS feature can be accepted for the purpose of indicating the registered title boundaries on the cadastral map. It should be noted that a similar decision has to be made even where the boundaries are not shown on the OS map, as it is still necessary to consider nearby map features so that the position of the cadastral unit can be established with sufficient certainty and accuracy.

The preparation of inaccurate cadastral units can be due to many different reasons, including the interpretation of deed plans or the OS map, the exercise of bad judgement, errors in scaling or failure to pay sufficient attention to such things as the age and nature of particular boundaries reported on a survey result. It is important that great care is taken when mapping a cadastral unit on the cadastral map as errors can cause considerable inconvenience and hardship to members of the public, and may also result in the Keeper having to pay compensation in the event of actual loss caused by the error. The need for care in the exercise of judgement on boundary decisions relates not merely to a need to keep compensation payments to a minimum, but above all, to the duty to provide a good and reliable service to the public and the legal profession. If a plans settler is in any doubt about how a particular boundary of a cadastral unit should be mapped, they should not hesitate to refer to a plans referral officer for guidance.

Legal Considerations

Boundary law

Relatively little of the general law relating to property boundaries is derived from statute. The major part of this branch of the law derives from the decision of the Courts over many years. The Courts' decisions are based on long-standing and universal acceptance of certain legal presumptions. In a concise section of this nature it is not possible to provide details of all the relevant case law or statutes on which the following paragraphs are based, but it may be said that such statements are firmly based on judicial or statutory authority unless this is otherwise indicated in the text.

No textbook deals solely with boundaries but the best statement of the law in this context is contained in the fifth edition of Burn's Conveyancing Handbook. Parts of Burn's Conveyancing Handbook have been used in the following text to describe particular boundaries.

Land boundaries

In considering the problems which may arise relating to boundaries which divide land into portions, it is perhaps helpful to recall the definition of 'land' in the context of conveyancing. In the ordinary legal sense land includes not only any portion of the earth's crust and any buildings and fixtures standing on it or attached to it, but includes the airspace above and the ground beneath, theoretically 'from the centre of the earth to the sky'. Thus in the legal context land must be considered as a three dimensional entity, and it follows that the extent of the land may be limited by vertical or horizontal boundaries.

Section 113(1) of the Land Registration etc. (Scotland) Act 2012 gives an interpretation of the term 'land' as including buildings and other structures, the seabed of the territorial sea adjacent to Scotland, and other land covered by water. From this interpretation, it can be seen that a part of a building, (for example, a flat), which may have no physical contact with the ground is 'land' in terms of land registration but it should be borne in mind that the walls, etc. which form the physical boundaries of that flat are burdened with rights of support, etc under the Law of Common Interest. However, in the main, the division of 'land' is usually demarcated by vertical boundaries, such as fences, hedges, walls, seashore, water courses, etc and may be either man-made boundaries or natural. Horizontal boundaries are generally artificial and refer to parts of buildings, possibly airspace within or over a building, and underground strata.

Legal presumptions

The primary evidence relating to the position of a boundary is in the title deeds for the properties concerned. However, title deeds do not always contain sufficient descriptions to enable the precise position of a boundary to be determined. In such cases, legal presumptions relating to certain types of boundary feature may be helpful to determine the position of boundaries, although it should always be borne in mind that the presumptions may be rebutted by evidence to the contrary.

A brief description of the main presumptions with which plans staff may come into contact are as follows:

For water boundaries, see the section on Natural Water Boundaries below and the page on Udal Law and the Foreshore in Orkney & Shetland.

Plans Considerations

Deed plans and verbal descriptions

The only essential at Common Law is that the subjects are sufficiently described and the following quotation from "Menzies Lectures" shows what is considered sufficient - "There is no invariable rule as to the manner in which lands must be described. Only this is indispensable, that means be furnished for ascertaining with certainty the lands or other subjects conveyed". In practice, a variety of methods of describing property are used depending on the circumstances of the particular deed. A plan is not essential to supplement a written description, but, even in the simplest case, it is always desirable.

Plans staff in the main will be concerned with particular descriptions in deeds which define the limits of the subjects conveyed by reference to boundaries, or measurements of boundaries, and they are often supplemented by a plan. A description in which all the boundaries are described is known as a full bounding description. In some cases, the description relies totally on the plan (for example, "that piece of land in the Parish of X and County of Y edged red on the plan annexed and subscribed as relative hereto"). This method was held to be competent in the case of North British Railway Company v the Magistrates of Hawick 1862 1m 200 and it was held that the title was a bounding title.

It is inevitable that in a percentage of cases where both a verbal description and a plan are used, there will be discrepancy between the verbal description and the plan. There have been a number of decided cases where there has been conflict between a verbal description and the plan, and the Courts have taken the view that each case must be looked at on its own merits. However, a couple of general rules do emerge from these cases and are stated in McDonald's Conveyancing Manual as follows:

1. "If, in the deed, there are written boundaries with stated measurements, and these conflict with a plan annexed, the plan will normally be treated as demonstrative and the written boundaries rule.

2. If, in the deed, there are written boundaries without measurements, and these conflict with a plan containing measurements, the plan will normally be preferred. But the deed may declare expressly that the plan is "demonstrative only and not taxative"", in which case, the written boundaries may still hold the balance of power.

However the statement made earlier should always be borne in mind - "each case must be looked at on its own merits".

Occasionally deeds identify properties by reference to OS parcel numbers and areas shown on specific editions of OS maps. Such a description is no longer acceptable as the sole means of identifying the boundaries of a property, and the Keeper would require the applicant to submit a plan annexed to the deed inducing registration defining the property, otherwise the application for registration will fall to be rejected for failing to meet the conditions of registration. It should also be noted that because a measurement of area is, by its nature, not precise as it is susceptible to different methods of computation, an area of subjects described in a deed is not definitive. 

As a general rule, where there are significant discrepancies between an area described in a deed and the annexed plan, the matter must be fully considered, and referring to a plans referral officer or a legal SCW will be appropriate courses of action for a plans settler.

Boundaries and the OS map

All survey and map production processes inevitably produce error at some stage, and the deed plans which we examine and the OS maps which we use are subject to these limitations to varying degrees. All maps and plans are, in any case, deliberate generalisations of reality and can never be an exact representation of the real world unless they are drawn at a scale of 1:1. Whilst it is not possible to provide guidance on the accuracy or the method of portraying detail shown on individual deed plans, we should be aware that some degree of inaccuracy due to the generalisation of physical features will always exist, however insignificant these factors may sometimes be.

In the context of making decisions concerning boundaries, when comparing deed plans with OS map detail, the underlying assumption in the absence of any evidence to the contrary, is that the OS correctly shows the position of physical features located on the ground at the time of the survey. For the bulk of plans work involving boundary decision making, this principle holds true, and underpins our whole system of mapping for registration purposes. Nevertheless, it is essential to have some knowledge of the limitations in accuracy of the OS map, and also of the rules which govern the representation of detail on that map. Only then is a plans officer in a position to distinguish discrepancies of real significance from inaccuracies or generalisations which may be accepted as a characteristic of that particular scale of OS map.

Detailed information on the published accuracy and built-in tolerances of the different OS base scales can be found in the Ordnance Survey section of the manual. Within that section, there is a link to the booklet for training course TC31 - An Insight into OS Maps which contains useful information on what type and size of feature is shown on OS maps of different scales, and how they are represented on the map. 

Boundary decisions

When considering a boundary, your decision must take account of all the known factors involved in each case and a systematic approach to decision-making should be adopted.

In the context of land registration, the simplest boundary decision work involves comparing the detail on the latest available OS map and the description and/or the plan(s) of the property in the deeds. This comparison is made to see if the features depicted on the map and on the deed plan/described in the deed are similar enough to accept the OS map features as an accurate representation of the title boundaries. The published tolerances and accuracy levels of the base scale of the OS map should be taken into account. As both the deed plan/description and the OS map contain generalisations and inaccuracies, even the most straightforward case includes an element of risk that the title boundaries will not be accurately represented on the cadastral map. Good boundary decision-making therefore involves establishing accurate title extents on the cadastral map with the minimum of risk, and in the light of all the available information provided in the application.  

• Boundary decisions based on bounding descriptions

It is normally only on first registration of a property that a plans settler will come across a property that is described in a deed by a bounding description only, with no supporting deed plan. Full details on what constitutes an acceptable bounding description can be found in the Further Guidance section - Bounding Description of Property Must Be Acceptable. If the bounding description does not meet the acceptance criteria, in the absence of a deed plan that was submitted at the time of the application, the application will be rejected. The Keeper will no longer requisition new plans when a bounding description is unacceptable.

When mapping by description only, trust usually has to be placed in the house numbering shown on the OS map.

• Boundary decisions based on deed plans

From the information contained in the earlier parts of this section, it can be seen that there are a number of factors which may permit some small degree of discrepancy between deed plan and the OS map to be considered as acceptable.

• Double features on the OS map

Features which are depicted as two (or more) firm lines running approximately parallel to each other and only a small distance apart are sometime encountered on the OS map. The nature of the physical boundaries which are represented by the double lines are not always apparent from the map. If they are to form a boundary of a cadastral unit, it will be necessary for plans staff to make a reasoned interpretation of the map so that the red edging may follow the correct line on the cadastral map. It can be useful to use the /wiki/spaces/2ARM/pages/64455240 panel on the drawing tool to help identify the nature of the two adjacent map features - one may be a water feature, another a road feature or vegetation line.

The quality and accuracy of deeds and their plans vary considerably and each application must be considered individually, taking into account all available information. Where, despite a careful consideration, some real doubt remains as to whether a double feature should be included in a cadastral unit, it would be prudent to exclude it. This does not mean, however, that exclusion of double features should become the standard practice in all cases, because if this were so the result would be the creation of numerous unregistered strips of land lying between cadastral units. These would almost certainly lead to difficulty for both the registered proprietors and RoS in the future. Where an application clearly seeks to register the land lying between double features, the proper course of action is to map the cadastral unit to include it, unless this would create a competition in title with a registered cadastral unit. In that instance, the current application should be rejected.

Boundary declarations

A boundary declaration in this context is a statement contained in a deed giving a precise description of the position of the legal boundary line in relation to adjoining physical features, or the ownership of a physical boundary. A relatively common example of this is a railway boundary - see the section on Railway Boundaries for full details on identifying and plotting such boundaries.

Where the boundary declaration states that the legal boundary line lies a fixed distance from a specified boundary feature (and the vendor retains the adjoining land), consideration needs to be given as to whether it is practicable and desirable to plot the line of the boundary in relation to the specified physical feature, or to otherwise indicate the position of the title boundary both on the cadastral map. When the scale of the OS map makes it difficult, an alternative to plotting the boundary at the fixed distance from the map feature is to accept the map feature in the mapping of the cadastral unit, but to label the boundary on the cadastral map and add a note to the property section of the title sheet giving details of the true position of the boundary.

If it appears that the physical boundary is not of the same nature as described in the declaration (for example, it is now a wall, and not a hedge or fence as stated in the deed), no attempt should be made to plot the title boundary at the specified distance from the feature now in existence.

Natural Water Boundaries

Under section 6(1)(a)(i) of the 2012 Act, the property section of a title sheet must contain a description of the plot of land, and that description must be by reference to the cadastral map. Sections 73 and 74 of the Act set out the terms of the Keeper's warranty. The Keeper, in accepting an application for registration, warrants to the applicant that, as at the time of registration, the title sheet to which the application relates is accurate - except in certain scenarios listed in section 73(2). One of those scenarios (section 73(2)(i)) states that the Keeper does not warrant that alluvion has not had an effect on a boundary. As this limiting of the Keeper's warranty is built in to the legislation, there is no requirement for a registration officer to add a note to a title sheet regarding any natural water boundaries.

The term 'natural water boundary' in this section means a boundary with a feature that has evolved through nature such as a river, loch or the sea, rather than with a man-made water feature such as an artificial loch within a housing or leisure development. The term also includes the landward and seaward boundaries of the foreshore; however, additional considerations apply to titles including or bounded by the foreshore or seabed - see Mapping Seabed and Seabed registration Guidance for guidance on titles to be registered in the county of SEA.

Latin terms

Registration considerations

Natural water boundaries require careful consideration when a property is being mapped onto the cadastral map. There are a variety of legal presumptions set out in leading textbooks on property law which require to be taken into account when establishing the full legal extent of a title bounded by a natural water feature. For example, a reference to subjects as being 'bounded by' a river may mean that the boundary is the medium filum if the river is non-tidal at that point, but will normally mean the river bank if the river is tidal. In addition, natural water boundaries are prone to fluctuate according to the seasons and weather conditions, and may permanently change as a result of alluvio (gradual alteration due to natural causes), avulsio (sudden, violent detachment of land) or deliberate reclamation. The assumption in property law is that the title boundary will move with the water feature in some cases (alluvio) but not others. Movement may have occurred between the granting of the deed defining the extent of the property and the time of its first registration, or it may occur after registration has taken place. The keeper is bound to reflect the true title position at the time of first registration and, where necessary, to update the register to take account of movement subsequent to registration. However, the Keeper does not have the jurisdiction to decide in an individual case whether the movement of the physical feature has resulted in a change to legal title, and has to balance the need for reliable, definitive mapping against the potential requirement to rectify a title boundary which has moved due to alluvio.

The Keeper's policy on natural water boundaries applies in all applications received on or after 8 December 2014 where the subjects are bounded by or include part or all of a natural water feature.

• Cadastral units adjacent to or including part or all of a natural water feature (including foreshore) should be mapped so that the red edge or tint includes the fullest extent of that feature consistent with the application for registration.
• By following this policy, any search of the cadastral map (whether by RoS staff or through ScotLIS) will always reveal a registered title which may include the area being searched against.

See pages on How to Identify a Natural Water Boundaries and How to Map Natural Water Boundaries for the current guidance given to registration staff on mapping cadastral units with water boundaries. Those guidance pages cannot, however, cater for every eventuality and any application that appears to be particularly complicated should be referred to a plans RO1 or a plans or legal SCW for consideration. Registration officers should also give consideration to the following matters: 

Legal presumptions on interpretation of natural water boundaries

These presumptions may be overturned by the terms of the titles or by a taxative deed plan. The whole titles, including those before and after the breakaway deed, require to be taken into account. The applicant, or their appointed agent, should have satisfied themselves that the true extent of the property is adequately described in the application for registration. A registration officer will base their mapping decision relating to a natural water boundary on the application for registration, taking into account that a natural change may have affected a boundary since the granting of a deed, and also taking into account the legal presumptions listed below. No additional examination of the prior titles to confirm the extent or nature of a water boundary will be carried out by a registration officer.  

Foreshore

Definition

The foreshore is defined for Scotland (except Orkney and Shetland) as being the area of shore between the high and low water marks of ordinary spring tides, where the shore adjoins either the sea or the tidal part of a river flowing towards the sea. While the Ordnance Survey map does show high and low water marks, there is no presumption that the area between those marks is in fact foreshore; the line of the shore may have moved since the O.S. map was last updated or (in relation to tidal rivers) silting may have meant that formerly tidal areas are no longer tidal 

Identification

When the subjects of an application adjoin the sea or a tidal river, it is not always clear from the titles whether the foreshore is intended to be included. If the description expressly narrates that the foreshore forms part of the subjects (or relies on a plan which clearly includes the foreshore) then there is no difficulty of identification. More commonly however, some element of interpretation of the description is required.

If there is nothing else in the description to indicate the contrary, where a property is described as being bounded by the ‘sea’ or (tidal) ‘river’ or ‘lowest ebb’, the boundary can be taken to be the low water mark of ordinary Spring tides and the foreshore will be included. Conversely, if the boundary is described as the ‘full sea’ or ‘sea flood’ or ‘flood mark’, then the boundary can be taken to be the high water mark of ordinary Spring tides and the foreshore will be excluded. Where the subjects are described as being bounded by the ‘beach’ or ‘seashore’, there is doubt as to whether the foreshore is included. Some authorities (see Stair Memorial Encyclopaedia vol. 18 paragraph 315) suggest that doubtful titles will be interpreted to exclude foreshore when they derive from the Crown, but in favour of the grantee when they derive from a subject proprietor. This view, however, should not necessarily be taken to be settled law. Moreover, different considerations apply to properties in Orkney and Shetland.

Ownership of Foreshore

Crown rights and Crown grants

In the absence of evidence to the contrary, the foreshore is presumed to belong to the Crown as part of the regalia majora (rights that cannot be alienated such as the rights of the public for navigation and fishing) and regalia minora (the property right in the foreshore and seabed that can be divested); the Crown's right to such subjects is not altered by the Abolition of Feudal Tenure etc. (Scotland) Act 2000. No recorded or registered title will be held by the Crown. The management of the Crown estate is the responsibility of the Crown Estate Commissioners, but see Crown Estate Commissioners and Crown Estate Scotland (Interim Management).

As proprietor, the Crown may grant titles or leases of parts of the foreshore and seabed. Since the Crown owns without a recorded title, it follows that no evidence of prescriptive progress is required for a grant by the Crown of an interest in foreshore or seabed, provided there are no indications of conflicting title or adverse possession.

In Orkney and Shetland, there is no presumption the Crown have a prior right to the foreshore. The Crown’s right to divest itself of ownership is subject to the Crown’s duty to protect the rights of the public in the sea and tidal rivers. These rights are principally the right of recreation and navigation and the right to catch certain types of fish.

Some deeds by the Crown granting titles or leases of parts of the foreshore follow the style - "ALL and WHOLE those areas of foreshore... shown delineated in xxx on the plan... but which area is shown on said plan to assist the description of it and not as in any way governing the boundaries of it insofar as such boundaries are the lines of mean high water and mean low water springs which boundaries shall be the lines of mean high and mean low water springs as they exist from time to time". Although this additional wording regarding the position of the mean high and low water springs over time is not necessary as the common law position on alluvio is quite clear, the inclusion of this style of wording in a deed is not fatal to the registration. Provided the deed and the plan allow the keeper to identify the extent of the cadastral unit at the date of registration and map this onto the cadastral map, applications should not be rejected for the inclusion of this style of wording.

Barony titles

Barony titles are a form of Crown grant. Where barony lands adjoin the foreshore, the barony title is normally considered to be habile to include the foreshore (but not the seabed) even if this is not expressly stated in the title description. Prescriptive possession of the foreshore by the barony proprietor validates the title. However, in terms of section 1(4) of the Prescription and Limitation (Scotland) Act 1973 the relevant prescriptive period is 20 years.

Section 63(1) of the said 2000 Act provides "… any conveyancing privilege incidental to barony shall on the appointed day [28 Nov. 2004] cease to exist…" and accordingly any right to foreshore stemming from a barony title requires to have been fortified by prescription prior to that date.

Express titles

It is possible for titles other than those deriving from the Crown to include foreshore or seabed expressly in the title description. The normal rules of prescription apply to the validation of such titles, except that the relevant prescriptive period is 20 years. However, given the nature of foreshore and seabed and the fact of the public’s inalienable rights, it can often be difficult to show that the proprietor with a recorded/registered title has fulfilled the requirements for possession in section 1(1)(a) of the Prescription and Limitation (Scotland) Act 1973.

Different considerations apply to titles adjoining the coastline of Orkney and Shetland.

Deeds granted by parties other than the Crown

Where a party other than the Crown grants title to an area of foreshore, the Keeper is entitled to rely on the examination of title that has been undertaken by the applicant who has a duty to submit a valid application. Accordingly the onus is on the applicant to satisfy themselves that the granter of the deed has a valid title, fortified by prescription if necessary. If the question on the application form regarding examination of title is answered "YES", or there are any contrary comments about title, the application should be referred for further guidance.