Boundaries can be difficult to establish at the best of times without throwing the added complication of rivers into the mix. Scots law uses legal presumptions in conjunction with title specifics to determine the ownership position in relation to rivers, but a boundary that has the potential to move can pose challenges for map-based title registration.
Where does your river boundary lie?
The common law position surrounding rivers in Scotland differs depending on whether the river in question is considered to be 'tidal' or 'non-tidal'.
Where the river is 'tidal' the bed of the river (known as the 'alveus') falls within the ownership of the Crown and so you, as the adjoining landowner, will only own the area of land up to and including the river bank.
In the event that the river is classed as 'non-tidal' and it separates your property from that of the adjoining landowner's property, the legal presumption is that both parties shall own up to the mid-point of the river known as the 'medium filum'. It is important to note that this presumption can be rebutted where the title deeds of one of the parties expressly states otherwise. However, in the absence of any such express provisions in the title, this legal presumption stands.
Shifting river boundaries
One of the main issues involving river boundaries is that they are prone to shifting or changing course. This can arise due to a number of factors, for example:
- Alteration as a result of natural causes such as adverse weather conditions (otherwise known as 'alluvio')
- Forcible separation of land at the banks of the river (otherwise known as 'avulsio')
- Deliberate land fill
If you own a property which has a river boundary or you are considering acquiring a property which has one, it is important to note that depending on the terms of your title deeds, your boundary may over time move with the shift or change in the course of the river.
Registration issues of river boundaries
In line with the Land Registration etc (Scotland) Act 2012 ("the 2012 Act"), the Registers of Scotland's manual sets out the duties of the Keeper in dealing with the registration of river boundaries and states the following:
"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."
Therefore, registration only captures the physical position of the river on the cadastral map at that point in time and it is possible for this to become inaccurate at a future date as a result of alluvial change. In light of this and in order to protect the position of the Keeper, section 73(2)(i) of the 2012 Act provides that "the Keeper does not warrant that alluvion has not had an effect on a boundary".
Fixing your river boundary
Despite the limitations of the Keeper outlined above, title disputes due to changing river boundaries can now be avoided as a result of section 66 of the 2012 Act. In the event that your land is separated by a common river boundary with an adjoining landowner, you are permitted to put in place an agreement which addresses the need for a fixed title boundary. Accordingly, such an agreement will confirm that notwithstanding any alluvial change to the river in question at any point in the future, this will not affect the title boundary previously agreed.
The benefits of such an agreement are:
- Irrespective of whether the river shifts or not over time, the Keeper's digital mapping system and the title sheets for the affected properties will remain accurate.
- The boundary in question will fall within the Keeper's general warranty policy.
Should you require any further information regarding ownership of rivers or title registration, please get in touch with your usual Brodies contact.
