This is the registration manual for 1979 casework.
Do not under any circumstances use the information here when settling 2012 casework. This resource has been archived and is no longer being updated. As such, it contains many broken links. Much of the information contained here is obsolete or superseded.
P12 Boundaries and Registration of Title
12.1 INTRODUCTION
The object of this section is to assist in the task of making boundary decisions.
The term boundary has no special meaning in law. In the context of property ownership it can be considered to have several meanings.
The term 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 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. It was considered that where a deed contained this information it should be carried forward to the Title Sheet but would not be guaranteed unless the Keeper chose to guarantee it.
Again the term boundary may 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 itself is a "floating rectangle" and the deed fails to relate the properties position to surrounding detail and as there is no accurate of fixed starting point the plan fails.
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 (e.g. for land registration purposes) will largely depend on the accuracy of the survey and the criteria for accuracy laid down for the particular Ordnance 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 sale Ordnance 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 Ordnance Maps used to establish and to record the positions of the boundaries of a registered title 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 rectangles" not related accurately to surrounding detail on the Ordnance Map, they cannot be identified thereon.
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 of the line of title boundaries to physical boundaries remains obscure and may never be determined, either on the ground or in the conveyancing documents.
When both the Reid and Henry Committees were considering boundaries they did suggest that the delineation of the subjects on the Title Plan should be subject to the qualification "or thereby" which is common in deeds and in fact General Information 2(e) inside the back cover states "Lineal measurements shown in figures on Title Plans are subject to the qualification "or thereby" and "Indemnity is excluded in respect of such measurements".
From purely a plans point of view forgetting the legal implications any dimensions shown on the face of a Title Plan should be plotted as precisely as the scale allows.
It should always be borne in mind when dealing with Ordnance Maps that although it is our intention to show the extents of registered properties as precisely as possible and on up-to-date large scale Ordnance Maps, these maps do have specified accuracy tolerances which should be borne in mind when making boundary decisions.
In cases of doubt on boundary questions surveys should always be instigated to reveal the latest development on the ground. However it might be that from the information to hand a decision is made which at a later date is revealed to be wrong as the detail shown on the Ordnance Map was inaccurate.
At this time the Keeper has discretion to raise the matter of compensation with the Ordnance Survey Department as Section 12(3)(d) of the Land Registration (Scotland) Act 1979 states.
"There shall be no entitlement to indemnity under this section in respect of loss where the loss arises as a result of any inaccuracy in the delineation of any boundaries shown in a Title Sheet, being an inaccuracy which could not have been rectified by reference to the Ordnance Map, unless the Keeper has expressly assumed responsibility for the accuracy of that delineation".
When dealing with boundary questions both plans and legal staff should always remember that the Department should try not to create disputes where none have existed before.
12.1.1 Need For Accuracy
It might be concluded from the number of factors involved that the need for accuracy in the preparation of Title Plans is not of major importance. Nothing could be further from the truth.
The many practical difficulties in portraying the line of the precise position of a title boundary do not remove the responsibility for producing a Title Plan which shows as accurately as possible the extent of registered subjects, as is evidenced by the pre-registration documents together with any other evidence of fact or law which may have a bearing on the circumstances in question.
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 shown on the Ordnance Map. Such consideration will determine whether or nor the latter can be accepted for the purpose of indicating the registered title boundary.
It should be noted that a similar decision has to be made even where the boundaries are not shown on the Ordnance Map, as it is still necessary to consider the adjacent boundaries shown on the said map in order that the position of the registered land in relation to features shown on the Ordnance Map can be established with sufficient certainty and accuracy.
The preparation of inaccurate Title Plans can be due to many different reasons, including the interpretation of deed plans or the Ordnance Map, the exercise of bad judgement, errors in scaling or failure to take sufficient cognisance of important intrinsic information such as the age and nature of boundaries reported on survey, or the position of adjoining registered title boundaries.
It is important that great care is taken in the preparation of Title Plans as errors can result in the Keeper having to pay compensation in the event of actual loss caused by the error. However, it should also be borne in mind that errors may cause considerable inconvenience and hardship to members of the public which may not be adequately covered by the payment of financial compensation.
Thus, the need for care in the exercise of judgement on boundary decisions relates not merely to the 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.
12.1.2 Background Knowledge
Boundary decisions by plans staff require the exercise of sound judgement, based on a good working knowledge of the law relating to property boundaries, together with a clear understanding of the rules and principles which govern the preparation of the various large scale Ordnance Maps. This knowledge must at all times be supported by a good working knowledge of our mapping and survey procedures and ultimately by the application of common sense.
The application of common sense to boundary decisions is critical but it cannot be taught easily, if at all. Nevertheless, it will develop as staff gain practical experience.
The more difficult or important boundary decisions can be referred to senior staff who should impart the benefit of their knowledge, experience and judgement to the staff whom they are developing.
The implications of making a wrong boundary decision can reach far and wide so staff should not hesitate to consult with their plans referee in any case of doubt.
Some problems on boundaries will also involve extent and may on occasion raise questions as to adequacy of title and advice on these matters should be sought from legal staff.
12.2 LEGAL CONSIDERATIONS
12.2.1 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 which themselves 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 statements made hereunder 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 which have been used in the following text to describe particular boundaries.
12.2.2 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.
A statutory description of "land" is given at Section 28(1) of the Land Registration (Scotland) Act 1979 as "includes buildings and other structures and land covered with water".
From this definition it will be seen that a part of a building, a flat, which may have no physical contact with the ground is "land" but it should be borne in mind that the walls, etc. which form the physical boundaries 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 or possibly airspace within or under a building.
12.2.3 Legal Presumptions
The primary evidence as to the position of a boundary is in the documents of title to the properties concerned. However, documents of title 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:
(1) If -
(a) It appears to the Keeper that -
(i.) an interest in land which is registered or in respect of which an application for registration has been made consists, in whole or in part, of foreshore or a right in foreshore, or might so consist, and
(ii.) discounting any other deficiencies in his title in respect of that foreshore or right in foreshore, the person registered or, as the case may be, applying to be registered as entitled to the interest will not have an unchallengeable title in respect of the foreshore or the right in foreshore until prescription against the Crown has fortified his title in that respect and,
(b) The Keeper wholly excludes or proposes wholly to exclude rights to indemnity in respect of that person's entitlement to that foreshore or that right in foreshore, and is requested by that person not to do so,
the Keeper shall notify the Crown Estate Commissioners that he has been so requested.
(2) If the Crown Estate Commissioners have -
(a) within one month of receipt of the notification referred to in subsection (1) above, given to the Keeper written notice of their interest, and
(b) within three months of that receipt informed the Keeper in writing that they are taking steps to challenge that title,
the Keeper shall
(i.) during the prescriptive period, or
(ii.) until such time as it appears to the Keeper that the Commissioners are no longer taking steps to challenge that title or that their challenge has been unsuccessful,
whichever is the shorter, continue wholly to exclude or, as the case may be, wholly exclude right to indemnity in respect of that person's entitlement to that foreshore or that right in foreshore.
(3) This section, or anything done under it, shall be without prejudice to any other right or remedy available to any person in respect of foreshore or any right in foreshore.
More generally where land is described as bounded by the sea, the sea beach or the sea shore or a tidal river the question is whether the foreshore (between the high and low water marks at spring tides) is included or not.
In conveyances by subjects superiors, i.e. anybody other than the Crown, any sea boundary will normally include any rights the disponer may have to the foreshore. It was doubted by two judges in the case of Magistrates of Musselburgh v Musselburgh Real Estate Company 1904 7F 308 if a sea beach boundary carried the foreshore in the same way as a sea boundary but on the whole the general rule seems to be that any reference to the sea, sea beach, shore or tidal-rivers as a boundary carries any rights the disponer may have in the foreshore.
In Crown Grants however the foreshore is presumed not to be included; it must be expressed unless in a Barony Title which is a good title on which to prescribe a right to the foreshore.
Even if somebody owns the foreshore, ownership is always subject to public rights which the Crown holds as regalia majora for the general public.
In Orkney and Shetland, udal law applies except where the landward title derives from a Crown grant. Under udal law, where the title is stated to include foreshore, the title extends to ‘the lowest ebb’, which may be a lower point than the mean low water springs. See Section. 8.2.29.3A for instructions on mapping such titles.
As the question of ownership of foreshore presents special problems any case where a boundary is stated to be the sea, sea beach, sea shore or a tidal river should be dealt with by EBM procedure.
f. CANAL BOUNDARIES A canal boundary excludes the canal and tow path.
g. INLAND LOCHS Where the description is bounded by Loch X the presumption is that the ownership includes a segment of the solum of the loch. Normally this is found by drawing perpendicular lines from the edge of each property to a centre point. Each owner having a boundary to the loch has a joint right to use the loch for trout fishing and boating.
h. WALLS, FENCES ETC. Where the boundary is a wall, fence or ditch, the wall, fence or ditch is excluded. The normal rule is that the feature by which subjects are bounded is excluded from the subjects.
i. If the description is "surrounded by a wall" the wall is probably included but it is better to check the deeds to see if there is any further information either confirming or rebutting this assumption.
j. MARCH STONES At one time March Stones were a common method of marking the boundary and where March Stones are used the presumption is that the boundary runs in a straight line between them unless there is some pronounced natural feature which renders this unlikely.
k. EAVES, FOUNDATIONS Plans attached to deeds generally show the boundaries of the subjects at ground level only, but the foundations and eaves may extend beyond the defined boundary line. In such a case, the property includes these projections (but not the air space between them), unless there is evidence to the contrary.
12.2.4 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 are so called because they 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 relied totally on the plan, e.g. "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 conflict 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:
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 Ordnance Survey parcel numbers and areas shown on specific editions of Ordnance Maps. Nevertheless, it should be noted that because a measurement of area is by its nature not precise, being susceptible to different methods of computation, an area of subjects described in a deed is covered by the "or thereby" qualification and is therefore not definitive.
As a general rule, where there are significant discrepancies between an area described in a deed and the annexed plan or Ordnance Map the matter must be fully investigated and if necessary raised with the legal examiner.
12.2.5 Dimensions
Where a property is conveyed which is surrounded by long established physical features, dimensions carried forward from earlier deeds which are not strictly in accordance with the development on the ground have got to be handled cautiously.
Is the variation material. Always remember the scale of the Ordnance Map being used.
Again, each case has to be treated on its own merits and any cases of doubt should be referred to senior officers for assistance.
12.2.6 Section 19 Agreements
A property owner may fix or alter the boundaries of his land by agreement with the adjoining owners e.g. by selling or exchanging lands. A deed is generally necessary to give effect to any such agreement although under the requirements of Registration of Title this is not always the case.
Section 19 of the Land Registration (Scotland) Act 1979 says:
Should a problem on boundaries arise on casework where it is felt that the matter might be resolved by adjoining proprietors agreeing to accept the development on the ground the case should be passed to the appropriate senior Plans Officer with all relevant material, for consideration.
If in agreement, the senior Plans Officer will consult with a legal examiner for further consideration and of action in resolving the matter.
It should be noted that the Section 19 Agreement may only be used where the discrepancy as to the common boundaries is identified in the Titles. Where the Titles agree with one another but do not agree with the Ordnance Map, it is not appropriate to use a Section 19 Agreement. Under such circumstances, a variety of solutions are available from corrective conveyancing to affidavits. The advice of a Legal Officer should be sought.