Property Boundaries

Lord Hope of Craighead Excerpts

Thursday 15th January 2015 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I begin by congratulating the noble Earl on securing this debate. I put my name down to speak because the issue he has raised is quite an important one and deserves to be broadened out a bit from the original list of speakers, which until recently was only three. Having looked more closely at the subject over the past two or three days, I am not sure that I am all that well qualified to express an opinion on the point. My background is that of a lawyer rather than a surveyor, and in this debate we are talking about English law, while my training and experience is largely in Scots law. One thing I learnt when I came south was that Scots law and English law differ most fundamentally of all in the area of property law, and it is very difficult for a Scots lawyer to understand the details, let alone the structure, of the way in which English property law operates.

However, I encountered quite a number of boundary disputes when I was in practice at the Bar in Scotland, and even one or two when I was sitting as a Law Lord here in this House and was introduced to, among other things, the wonderful presumption known as the hedge and ditch presumption, which I very much enjoyed examining. I also encountered a number of surveyors during the course of my practice, as a result of which I should say that I have a great deal of respect for the noble Earl’s profession. There were many cases on which we worked together as a team, although it is fair to say that they were largely in the area of valuation for rating rather than surveying in the more strict sense.

We are not being asked to consider the law of Scotland today, and in any case I am quite sure that the Minister would not wish to comment on it since it is a devolved matter. However, it may be of interest if I sketch in a little the way that issues are apt to arise in that jurisdiction. It does tend to show that the problem here in England and Wales is much more acute than it is under the system I was used to in Scotland, and that underlines the importance of the issue raised by the noble Earl.

Scotland has had a system of recording land tenure in a public register called the Sasine Register since the early 17th century. There were attempts to create a register earlier than that, but the position today is that for well over 300 years, every single property in the country has been the subject of a recorded title, or more accurately, a registered title, which can be examined by every member of the public on payment of a suitable fee. It is in the course of being replaced by a modernised system of registration of title, but the Sasine Register still exists and it is the source from which the relevant information can be derived when moving to the new system. There is a complete account of all deeds, which enables anyone to identify the extent of ownership of any holder of land, and includes all deeds which affect the security of land—the title to the land—that is, deeds which are in the form of security for debt, deeds that record rights of way, and what in Scotland are called servitude and England easements. Everything that affects a title has to go on to the register to be effective at all. It is therefore a very complete record of the present situation of any landowner’s title.

Every title that is put on to the register has to have a description. For a long time the practice has been to describe the property that goes on to the register by reference to boundaries. The early deeds did that by reference to natural features such as walls and gables. Occasionally resort was made to plans, which were always described as taxative—in other words, they were made to be definitive as to the extent of the title. Once a title containing the information had been registered, the titles that derived from it simply tended to refer back to the original deed, so that in practice one has to search the register quite diligently to find out the limits of where the property lie. The result is that from time to time mistakes occur. Someone sets out to design a new definition, but has not correctly recorded what was in the earlier deeds from which the title is derived. It is in that kind of situation that a boundary dispute arises.

Where mistakes of that kind arise there are two kinds of problems. First, there is the problem of searching the register and understanding how the titles have been defined. To some extent that is a task for a lawyer, given that a lot of work is being done through titles, which only lawyers can really understand. It may be that measurements and things of that kind are needed, for which a surveyor might be used. However, there is another aspect of this: in Scotland it is called positive prescription. The noble Earl referred to adverse possession and it is the same concept. If somebody has occupied land without objection for 10 years—“nec vi, nec clam, nec precario” is the Latin phrase—he has an absolute right to remain in possession, even if the description in his title conflicts with his neighbour and the neighbour can show that actually he ought to have been able to occupy that land himself. If he does not take the initiative within the 10 years, he loses the right to do so. In that sort of situation very difficult issues of fact may arise. The question is whether the present possession has been adverse for the necessary period, and in that situation a surveyor, frankly, is not the person to whom one would turn. It would probably be a solicitor instructing a member of the Bar to prepare and argue the case all the way through. Therefore the situation is quite complex. In Scotland, these issues can arise in various forms, but the basic situation is one of a complete register of all the land and we therefore do not have the problem that arises in England—and, no doubt, in Wales—where a substantial amount of property is not on the register at all.

What about England and Wales? My noble and learned friend Lord Brown of Eaton-under-Heywood said to me this morning that the courts would be quite delighted were Mr Elphicke’s draft Bill to be enacted and the courts were relieved of the heavy responsibility, which he described, of having to deal with these cases. My own experience as an advocate was that these cases were really quite enjoyable and therefore I would be rather sad to see them go. There is a difference of view between counsel and the judge. However, I am not absolutely sure that the situation is quite as easy as the draft Bill is suggesting or that the public would be well served if the law were to be reformed in the way that it proposes.

I stress that I do not for a moment doubt that there is a problem. Indeed, since the pattern of land-holding in England and Wales is much less neat and accessible than it is in Scotland, the problem is indeed acute. But my impression is that the Land Registry does an excellent job. Having studied its website, it offers much helpful advice and guidance for people who find themselves in dispute, which they would be well advised to follow. There is the right that everyone has, under Section 73 of the 2003 Act, to object to an application for registration. If there is an objection, there is a tribunal to which the matter can go. No doubt, it will take many decades before the system can settle down to the extent that it has in Scotland; nevertheless, the Land Registry is there to improve the situation and assist the public, as I have attempted to describe.

My main point is that I am not entirely convinced that making it compulsory for every such dispute to be resolved by reference to a panel of surveyors and excluding the courts entirely—as I think the draft Bill seeks to do—is either necessary or desirable. There will be cases where the title deeds alone will provide the answer and it may be that agreements can be reached; but I am not entirely sure that understanding these deeds is within the exclusive competence of a surveyor. There is then the problem of how to deal with other evidence about the way the property has been used, which may be hotly disputed and requires analysis, presentation of evidence, cross-examination of witnesses and so on. There is also the matter of adverse possession, which could raise very difficult issues.

While I am absolutely sure that the noble Earl has raised some interesting and important issues, I am not sure that the suggested solution is the right one. I look forward very much to what the Minister has to say in his reply and, in due course, to reading the scoping study that has appeared on my BlackBerry, but which I have not yet had a chance to read.