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. This can have practical consequences for rural landowners, purchasers and funders, particularly where river movement affects access, maintenance, future use or marketability of the land.
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'.
Ownership of tidal riverbeds
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.
The medium filum presumption
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.
Practical considerations
In practice, establishing where the boundary lies is not simply a matter of looking at the plan. The title deeds, Land Register information, historic descriptions and the current physical position of the river should all be considered together, especially where there are signs of erosion, deposits of land, flood damage or other changes in the river's course. Where there is uncertainty, it may be sensible to obtain legal and surveying advice before relying on the boundary for access, works, development or a transaction.
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. This may affect the extent of grazing, cropping, woodland, sporting or amenity land, and can influence estate management matters such as fencing, drainage, riverbank maintenance and access arrangements.
Storm damage and sudden river changes
More sudden or dramatic changes, such as storm damage, flood scouring, collapse of a riverbank or the forcible separation of land, may require separate consideration. While gradual natural movement may in some circumstances affect the legal boundary over time, a sudden event will not necessarily have the same effect. Landowners should therefore avoid assuming that ownership, access rights or repairing responsibilities have automatically changed following a storm. In the immediate aftermath, it will usually be important to document the damage, preserve evidence of the previous and current riverbank position, check the title position (including any lease or access arrangements), consider whether urgent safety or reinstatement works are required and take advice on whether any consents are needed before carrying out those works.
Related videos:
Access routes and neighbouring owner issues
Issues with access routes and neighbouring ownership can quickly become complex, particularly where land boundaries, river conditions or long-established routes are affected.
Boundary disputes between neighbouring landowners
Disputes can arise where neighbouring landowners take different views on whether the legal boundary has moved with the river, or where there are conflicting interpretations of the title deeds, title plan and physical features on the ground. These issues often become more significant when land is being developed, sold or refinanced, or where the boundary affects access, sporting or fishing interests, riverbank works, maintenance obligations or the practical use of adjoining land.
When changing river conditions affect access
Access can be a particularly difficult issue where a river changes course, erodes the bank, washes away a path or makes an existing route unsafe or inaccessible. The starting point will usually be to identify the legal basis of the access right. If the route is expressly set out in the title deeds, the wording of the grant will be important: some rights of access are tied to a specific route shown on a plan, while others are framed more generally as a right to pass over land for access to a particular property or area. Where the express right is fixed to a defined route, a change in the physical condition of that route may not automatically create a new legal route elsewhere, and agreement with the neighbouring owner may be needed to vary or relocate the access. Where the wording is broader, there may be more scope to argue that reasonable alternative access is permitted, provided that the new route is consistent with the purpose and extent of the original right.
Prescriptive access rights and alternative routes
If the right of access has been established by prescription rather than by an express title deed, the position may be more fact-sensitive. A prescriptive right of access is normally established by open, peaceable and uninterrupted use of a route for the prescriptive period, so evidence of the route actually used, the nature and frequency of use, and the land benefited and burdened will be important. If the established route is washed away or can no longer be used, it should not be assumed that the right can simply be exercised over a different route without further analysis. In practice, the parties may need to consider, from a practical and legal perspective, whether the alternative route can properly be treated as a continuation of the existing access, whether it imposes a materially greater burden on the neighbouring property, and whether a formal deed of variation or new right is required. Early dialogue with the neighbouring owner, supported where necessary by legal and surveying advice, can help avoid a temporary access problem becoming a wider title dispute.
Flooding, erosion and let agricultural land
Where erosion, riverbank collapse or alluvial change causes increased flooding of a field, the issue may be more than temporary crop damage. It may indicate a change in the physical riverbank, the productive extent of the field or the practical use of land forming part of the river boundary. Where the field is let under an agricultural lease, the lease should be reviewed to identify who is responsible for drainage, riverbank maintenance, repairs, flood prevention works, insurance and any necessary environmental consents. The tenant should record the extent of flooding and crop loss and notify the landlord promptly, while the landlord may need to consider whether riverbank or drainage works are required and whether neighbouring owners or public bodies need to be involved.
If the flooding is linked to ongoing erosion or alluvial change, the parties may also need to consider whether the productive value, usable area or practical utility of the let subjects has changed over time, and whether practical works, a lease variation or a wider boundary agreement may be required. Any questions regarding rent, compensation, insurance or fixed equipment obligations will depend on the type of agricultural tenancy and the wording of the lease.
Registration issues of river boundaries
River boundaries can present particular registration challenges because the legal title position may not always align with the river's physical position over time.
The Keeper's duties on registration
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."
Limitations of the cadastral map
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".
Due diligence for river boundaries
For that reason, the title position should be considered alongside the current physical position of the river, particularly before works are carried out, land is sold or a boundary position is relied upon. For purchasers, funders and advisers, this makes river boundaries an important due diligence point. Enquiries should consider whether there has been historic river movement or erosion, whether any boundary agreement has already been put in place, and whether there are existing or threatened disputes with neighbouring proprietors. The outcome may affect not only the legal extent of ownership, but also valuation, future management and the scope for any intended use of the land.
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. This can be particularly useful where land is being sold, financed, developed or managed as part of a wider farming or estate strategy.
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.
- It can reduce the risk of future disputes regarding value, maintenance responsibility, access arrangements or the practical use of the land and provide greater certainty for purchasers, lenders and neighbouring landowners when assessing the future ownership, management and marketability of the property.
Consult our rural lawyers for advice on river boundaries and property rights in Scotland.
Contributor
Senior Associate
