Disputes can arise because of genuine confusion over where the correct boundaries lie due to, for example, poor verbal descriptions or plans in historic deeds, the scale at which the map is drawn on the land register, or land being registered that is not legally owned by a seller. They can also arise when a neighbour intentionally illegally possesses your property.
How is a boundary identified?
A property boundary is normally identified by examining its title deeds.
If the property is registered in the Land Register of Scotland, it will have a title plan, which depicts the boundaries of the property plotted against the cadastral map. It is based on the Ordinance Survey map, and so there is normally less scope for ambiguity - however issues can still arise.
Titles that are registered in the older Register of Sasines tend to be more problematic. They may only contain written descriptions of the land, using archaic language, and historic identifiers which may no longer exist. If a plan is referred to, it is often less accurate than modern plans, and it may be difficult to reconcile the plan with the current lay of the land.
Why is establishing the boundary important?
Disputes create uncertainty over land ownership and usage rights. In some circumstances, they can impact the value of land and cause issues when selling the property, and they may impact on future development. There is also often a strong sense of injustice if a neighbour is possessing land which you believe falls within your ownership.
There are several proactive measures worth considering to try and avoid a dispute arising. If you have a title which is still on the old Register of Sasines, I'd recommend instructing a lawyer to register your property on the Land Register of Scotland, so that you have a clearer title plotted onto the OS map-based cadastral map. Where there are two possible interpretations of historic Sasine deeds, being the first to be registered on the Land Register is beneficial as it is often more difficult for a Land registered title to be deemed incorrect, than a Sasine registered one.
Being in possession of your land is another factor that can be influential if the matter went to court, so it's worth conducting regular surveys to ensure boundary lines are clearly identified and marked.
If you notice an encroachment, don't ignore it. Taking swift action is always better than delay. If you do nothing for some time, it could be argued that through non-action, you've accepted the encroachment.
I'm involved in a dispute - is going to court my only option?
No - and I would encourage clients to resolve the dispute first by other means if they can, as litigation can be costly, time-consuming and, at times, stressful.
Attempting to reach an agreement with your neighbour is the first thing to try. If that's not possible, there are alternatives to court. Mediation is where a neutral third party – a mediator – helps both parties to reach a mutually acceptable resolution.
Alternatively, you could engage a lawyer to write to your neighbour in an effort to resolve the matter without the need for raising an expensive court action.
What happens if my dispute goes to court?
You would normally instruct a lawyer to ask the court to determine the correct boundaries and order that your neighbour withdraws from your property (if they are illegally occupying it). The process will typically take between three months and a year depending on: if the other party defends their position, the complexity of the case, and the legal procedure that is adopted. At the outset I'd normally recommend that an expert in boundaries is instructed to produce a report setting out their position on your case.
If the Land Register is inaccurate, you would likely need to apply to the Lands Tribunal seeking rectification of the title.
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