Boundary lines can be one of the biggest bones of contention when dealing with property and they are not always where you expect them to be or indeed easy to find.

Why worry about where the boundary is?

Establishing where the boundary lies is important for several reasons. Anything which is not within the boundary lines of a property will be owned by another party and cannot be built on. And, when using cranes on a development site, the consent of the adjoining land owners will be needed if any part of the crane will oversail the neighbouring land. Also, if the boundary line does not join up to a publicly adopted road or the title to your land does not benefit from suitable access rights, there could be what is known as a ransom strip. The owner of the strip of land over which access is taken to your site could demand a payment in exchange for permitting you and future house buyers and their visitors taking access. Similarly, servicing the site with utilities could be more difficult if the boundary does not meet the publicly adopted road or verge.

Where can you find the boundary?

The boundary is generally found in the title to the land. Titles to land in Scotland are either recorded in the old deeds register, the Sasines Register, or registered in the plans based Land Register.

Titles in the old Sasine Register can be troublesome when it comes to locating the boundary. They will often contain only descriptions of land without a plan and even when they have a plan, that plan may not be coloured to match the description or it may be of poor quality. If only relying on a description of the land in old title deeds, it may refer to landmarks or the land of adjoining neighbours who no longer exist. For example, "bounded by Smith's drapery store on the west, the property of Alan Jones on the east and Penny Lane on the south". Determination of the boundary can depend upon what has been possessed in the past.

It is generally easier to establish where the boundary lies if the title is in the Land Register which is a plans based system. For the most part, the boundary will be clearly shown by a red line on the Title Plan. However, it is not always clear whether the boundary is on the inside or outside of the red line and the thickness of the red line can cause issues in some cases. This can happen particularly in rural properties where the scales of plans are such that large areas are condensed into manageable sized plans. A thick red line can therefore capture more than was intended as happened in the case of Trustees of the Elliot Harwood Trust v Feakins 2012 GWD 10-194 where the sellers had not intended to sell an estate lodge house which fell within the boundary line marked on the plan used in the sale of the larger estate.

Another issue which has come to light as more and more titles are bought and sold and registered in the Land Register for the first time, is that of overlapping boundaries in titles where land lying along the boundary appears in the titles of both neighbouring owners.

So where is the boundary?

That can depend on a combination of what the title says, what the common law position is and on what has been happening on the ground.

The common law boundaries

Where the landmarks referred to in the description of land still exist but the titles do not specify the exact boundary line, the common law may step in and determine where the boundary lies in the following situations.

If the property is described as being "bounded by a wall or a gable wall", the boundary is presumed to be the inside face of the wall or gable. The wall or gable wall will not be included in the property and will belong to the neighbour.

If the property is said to be "bounded by a mutual wall or gable", the boundary is presumed to be the mid-point of the wall or gable and the owner of each half will be entitled to do work to their side of the wall provided it does not prejudice the other side. The owners of each side of the wall will have to agree to works which affect the whole wall.

Where land is described as bounded by a river which is non-tidal with no islands are involved, the boundary is presumed to be the middle line of the river. This will not always be easy to establish and may change over time. One of the most famous cases involving the boundary line in a river saw two rival supermarkets wrestle to show that they owned half of the river with the erection of signage in the water itself.

If the property is described as being bounded by a road, the general rule is that the road is not included in the property. However, if two plots of ground on either side of a public road are being sold, unless special circumstances apply or the titles provide otherwise, each plot will generally include the road to the midpoint between the two plots.

What happens when boundaries overlap?

The common law may come to the rescue where there are vague descriptions but it can be a more difficult situation to resolve when the boundaries of neighbouring properties overlap, with the same piece of ground appearing in the title of both properties. It will often come down to who has been occupying what, when and for how long.

8 December 2014 is a key date for boundaries. The Land Registration etc (Scotland) Act 2012 came into force on that date and "corrected" some boundaries where the wrong boundary had been shown in the Land Register. That is not the end of the story for those corrected boundaries as it is still possible for a neighbour to lay claim to the disputed land if they can show that they occupied the area concerned.

Where the 2012 Act does not apply, it may come down to who has occupied the overlap area in question for at least 10 years without interruption or objections from a competing neighbour. The type of occupation needed to claim the land will depend on the type of property concerned. For example, having part of a building erected on the overlapping section of the land for 10 years may be enough to settle the boundary line.

Going forward

The 2012 Act introduced measures which should curtail overlaps in the Land Register. Where they do occur, it will be more difficult for a property buyer who has gained a slice of his neighbour's land to retain that land if the neighbour's title clearly includes it. The additional slice will have to be returned unless another buyer buys it in good faith at least a year later or the first buyer occupies it for 10 years with no objections or interruptions from the true owner.

And so, finding the boundary line is not always as straightforward as you might expect. Each case will have to be considered on its own facts and circumstances to determine where the boundary lies.

This is a summary of the law relating to the mapping of ownership of land in Scotland and should not be relied on in specific circumstances.

Contributors

Catherine Reilly

Director of Knowledge & Innovation (Real Estate)

Lisa Cruickshank

Practice Development Lawyer