Fidlers Blog

When people are buying a property, one of the things they are sometimes very keen to know is ‘which is my boundary’ – they want to know which one they have to look after. Sometimes when they’re asking they’ll come out with some comment like ‘I know it’s the one on the right normally but I want to make sure’. I then have to explain that there’s not really any ‘normal’ when it comes to boundaries – it could be that you’re meant to maintain the one on the right, or the left, or all of them, or none of them.

This information becomes even more important when we get a boundary dispute – two neighbours arguing over who maintains a boundary, or where the boundary actually is.

So I thought I’d do a small blog setting out what the legal position is, and what to do if you find yourself with a dispute with your neighbours over the boundary.

Start with the Title Deeds
If you want to find out who is meant to maintain a particular boundary then the best place to start is the title deeds. There may well be a clause in one of the deeds that states that you must maintain a particular boundary. When the deeds talk about this they usually identify the boundary you need to maintain by marking it (or them) with an inwards “T” on the plan in the deeds, like on this example below.

For most people their deeds will now be registered at the Land Registry which means you can obtain a copy of them quickly and cheaply online. (You can usually also get a copy from your mortgage company but they will charge for this – more than you will pay the land registry. Also the solicitor who acted when you purchased may well have a spare copy on their file – you should be able to get this from them for free – but there may be a slight delay if they have to dig it out of their archive)

To get a copy of the title deeds go to the Land Registry. At the time of writing it will cost you £4 for a copy of the main parts of the deeds, and another £4 for a copy of the filed plan

What am I looking for?
It’s really hard to explain what’s in deeds as they do vary quite a bit – as I’m writing this I have no idea if you live in a brand new property that was registered last year, or a 400-year old property that was registered 80 years ago. However there are certain rules as to how deeds are registered so I’ll deal with those. The registered title deeds are contained in up to 3 parts:-
1. Firstly you’ve got the main part of the deeds (which contains the property register – description of the property, the proprietorship register – who owns it, and the charges register – who’s got a mortgage on it). There may be something in the charges register about the boundaries – something along the lines of “the buyer covenants to maintain the boundaries marked with an inward “T” on the attached plan”.
2. Secondly you’ve got the ‘filed plan’ – there is a filed plan for every registered property and it shows the whole property. This plan is drawn up by the Land Registry when they first register the title deeds.
3. Thirdly you may or may not have ‘other documents’ – more often than not this is a copy of the transfer deed from when the property was first sold – for example the builder selling to the first buyer. This deed is usually attached because it contains quite a few conditions (builder like to put conditions on the properties they are selling), and it’s easier for the Land registry to attach a copy to the title deeds rather than copy out the long deed and decide which bits need to be included. The bad news is that your information on boundaries is often contained within these attached deeds. I say bad news because you also have to pay the land registry for a copy of this other document. At the time of writing this will usually cost another £4.
If you have got this extra deed then look through it – it may well be pretty confusing. There will usually be some sort of plan contained within it – this plan will have been drawn up by whoever drew up the deed itself – often the original builder’s solicitors. What you’re looking for is something like “the buyer covenants to maintain the boundaries marked with an inward “T” on the attached plan”. Looking at the attached plan should hopefully show you which boundaries you are meant to maintain.

What if there’s no mention of maintaining boundaries in my deeds?
To be absolutely certain you’d need to check your neighbours deeds as well – it may not say anything in yours but your neighbours might have a clause saying they have to maintain certain boundaries that divide you and them.
If it says nothing in any of the deeds then the standard position is that the boundary should be maintained jointly by both neighbours.

I’ve found the T marks! I have the answer!
Not so fast! This is a good starting point, but we still have a way to go before being able to say you have the definite answer. It would still be wise to check your neighbours deeds as well – they might also have a T Mark – which again would imply you should maintain it jointly (or it may mean that the first person to have the condition imposed was right, and the second time it was a mistake – that’s too complex a position to discuss here, but see below where I talk about the real world).

The more likely problem is the actual location of a boundary. Say for example you want to replace a fence – but the boundary is stated to belong to your neighbour. It’s blown down and your neighbour has disappeared (no connection between the two!). If you put your new fence just a centimetre on your own land then it’s your fence as it’s entirely on your own land. You’ve effectively given up about a centimetre of land but if you actually have a life then that shouldn’t really matter (should it?). The problem comes 10 years down the line when two new people are living either side of the fence. The people on the ‘neighbour’ side can see in their deeds it’s down to them to maintain it. The people on ‘your’ side know from you that the fence has been moved and it’s on their land. Here we’ve got the makings of a boundary dispute

Boundary Disputes – what you need to know
Boundary dispute are horrible. They have the capacity to ruin your life and can drive some people to desperate measures. My unequivocal advice is that they should be avoided at all costs. I know that sounds a bit daft coming from a lawyer but it really is the best advice you’ll get.

Why are they so bad? Well unless you live on a large country estate the chances are that you’ll come into regular contact with your neighbours – you will depend on each other for certain niceties – where you park your car, collecting balls off each others land, consideration for each other concerning noisy kids, loud music etc.

If you have a boundary dispute then all too often I’ve seen each of these areas become a battle ground, with each side using every available opportunity to wind up the other party. Your home should be a haven for you – somewhere you can relax. If someone is causing hassle that close to you then it can really get under your skin.

So my advice is that if you can feel a dispute brewing, then you need to STOP! Speak to the neighbours fairly and nicely – find out what their concerns are and tell them what your concerns are. If you can do this socially then all the better. You don’t have to fall in love with them but if at all possible you really do want to get along with them.

Perhaps the best way to illustrate this is with an example

My fence has blown down – what shall I do?
This is a classic example of how and why people are concerned about boundaries. People have different attitudes to blown down fences. Some people can’t wait to put it back up again – it annoys them that their garden look so messy with the fence blown down; other people view it as a real pain in the backside – another boring job they’ll have to do when they’d rather be out playing football/walking the dog.

You need to speak to your neighbour, but it’s this first approach that can make or break the relationship.

Some examples that should hopefully work:-
“I’m not certain whose boundary it actually is but I’d be happy to sort it out – is that alright with you. If I do sort it out I’ll need to come round onto your land – is that OK?”

If you’d rather be playing football “I’m not sure whose boundary it is but I’m planning on putting it back up – I just can’t do it until next week – is that alright?”

Hopefully either of these approaches will start a dialogue where your neighbour offers to help, contribute towards the cost, or is just grateful that someone is sorting the problem out.

Contrast that with this:-

“Your fence has blown down – I know it’s your responsibility and I’d like to know when you’re going to repair it”

“The fence has blown down – it’s joint responsibility and I want half of the cost from you now – it’s going to cost £250 and I want £125”

“The fence has blown down – it’s joint responsibility… I reckon you should be able to do it for £20 so here’s a tenner – let me know when you’ve done it.”

“The fence has blown down – it belongs to me and I shall be coming onto your land to enforce my right to maintain it”

“The fence has blown down – it’s my boundary and it’s sat on your land – I demand you give it back”

“The fence has blown down – I know it’s your fault as I’ve seen you breathing out heavily in your back garden. I demand you repair it instantly. I’ve never liked you and your wife is fat.”

Each of these responses will usually get a defensive or even aggressive response from the neighbour – it may lead to them checking their own deeds, and could eventually lead to a needless dispute. The neighbour may actually have been pleased that you were going to sort out the fence, but because you’ve got his back up he’s now going to try and take legal action to let him sort it himself!

Usually at this stage the phrase “I know my rights” is uttered by someone which is usually a sure sign that it’s all going pear-shaped.

It may seem stupid for a lawyer to be arguing against litigation, but to be honest these are not the sort of cases you generally want – both parties end up spending a lot in legal fees but generally won’t feel they’ve gained anything from the experience – they’ve not got value for money. It’s very rare that either one comes out of it as a happy client. We have had some clients who are insistent from the outset that they are going to take it as far as they can, and then later they turn on us and say that we should have told them at the start not to be so stupid!

It’s also worth bearing in mind that neighbour disputes need to be declared when you come to sell your property, and failure to do so is potentially misrepresentation (for which you could be sued). There is a risk that revealing the neighbour dispute could at the very least hold up your conveyancing, and potentially could lose you a buyer. It’s far better to avoid the dispute in the first place.

So to summarise:-
1. You can check yourself who is meant to maintain which boundary
2. Even though you may find this information it’s not necessarily 100% accurate – things can change over the years (boundaries being moved slightly), and in any event the plans that are used aren’t generally fantastically accurate themselves
3. Regardless of the legal position, you need to find a workable solution with your neighbours – speak to them nicely and get them involved.

If you’ve followed all the above advice and still have a problem then email our litigation department or leave a comment below

What exactly is a HIP?
OK at it’s simplest and in no more than 3 words a HIP is a Home Information Pack. So to twist that round a bit it’s an information pack about your home. The reason that people are asking about them is that they have gradually become a legal requirement over the last 2 years, so that now, if you’re selling your house then you MUST have a HIP in place before you’re allowed to put it on the market (although as long as you’ve ordered your searches you can still market the property – you don’t have to wait until they come back).

What’s in this pack?
It contains certain information about your home that should be useful to buyers. However you can’t just stick any old information in there – there is a strict list of what must be included. Here’s the list:-
1. Energy Performance Certificate
2. Copy of your title deeds
3. Local Authority Search (this is a list of questions that are answered by the local authority and cover things like who maintains the road outside the property and whether anyone’s applied for planning consent on the property in the past).
4. Water (also called drainage) search (Another list of questions – this time answered by the local water authority – covering things like whether the property drains to a main sewer)
5. Property Information Questionnaire (known as a PIQ) – a form filled out by the seller
6. If it’s leasehold then you’ll also need to put in a copy of your lease
There are also rules about how this is presented – there needs to be an index and a ‘statement of sale’ which sets out the main terms on which you’re selling the property

Who prepares the pack?
Anyone can actually – there’s no restriction on who can do it. However you need to know how to get a copy of the deeds, how to order searches – basically everything in the paragraph above. Because of that you’ll need to use someone who does this sort of stuff for a living – most solicitors can provide it, and there are also a number of HIP providers out there. We would be delighted to give you a quote for your HIP – Click here for a HIP quote

What does the pack look like?
When packs were first introduced there was a massive variety in what they looked like – some looked like a scruffy bundle of papers, and some looked like posh magazines. What’s emerged over the last 2 years though is that people are no longer interested in having a printed version – most HIPs now produced are entirely electronic – so you can access them online and print off a copy yourself. This has a number of advantages – firstly there’s no printing cost, and secondly it’s really really easy to let people have a copy of the HIP – without worrying that they will run off with your only printed copy.

Why have they done this – what was wrong with the old system?
Good question. Home information packs were introduced to kill 2 birds with 1 stone. The Government had been promising for a while to introduce changes to the system of house buying and selling in the UK – the public perception was that it was too slow and caused too much stress as a result (no-one mentioned that conveyancing in this country costs about one tenth of what it costs in mainland Europe but there you go). Sensing a vote winner the government decided that ‘something must be done’. They looked around at various systems throughout the world and decided that the idea of preparing a pack in advance was the best one to go for. This system has been in use in Canada and Denmark for a while and seems to have been successful.
The second bird being killed was the Kyoto protocol. The government signed up to this which involved them agreeing to reduce emissions by a certain date. Now in order to reduce emissions you first have to measure them – otherwise how can you say that you’ve reduced them? So a major part of the HIP requirement is the energy performance certificate – which records how energy efficient your property is.
By introducing a Home Information Pack they hoped that it would simultaneously reduce the time taken for conveyancing, and at the same time gather important information about the UK’s housing stock.

Has it worked then?
Well yes and no. There were clear ideas at the start which would in theory have produced a system whereby everything you needed to know about the property was held in one pack that was available when you saw the property. A major part of this was the Home Condition Report. This was basically like a full survey on the property which highlighted the things that needed to be done. In an ideal world you’d get your pack, let your solicitor have a copy, let the mortgage company see the survey, and you’d be ready to exchange contracts within a week (or however long it took the mortgage company to get the mortgage offer out). Sounds nice doesn’t it? Yes that’s what we thought too. However the Mortgage companies didn’t seem to think so and nor did the Royal Institute of Chartered Surveyors (RICS). The Mortgage companies basically said it was all well and good but as there was no element of valuation in the Home Condition Report how could they rely on it to lend a mortgage against? They therefore were going to send their own valuers in as well. Eventually there was a climb-down by the government who agreed that the Home Condition Report would be optional (which in reality means almost no-one ever does one) but the Energy Performance Certificate would be compulsory.
RICS weren’t happy because all their members were basically having to retrain as Home Inspectors, when they’d spent years and years building up their expertise in the area. I can see both sides on this – it’s a bit of a blow to the pride to retrain when you’re so experienced. However the reason they were being asked to retrain wasn’t that they weren’t any good – it was that the most important thing was consistency – you needed to be able to send 10 Home Inspectors into the same property and they would come up with the same 6 points that needed sorting. Without blanket retraining that wouldn’t have been possible.
So what did the RICS do? Well with a couple of weeks to go to the launch date they basically took the government to court saying there wouldn’t be enough home inspectors ready by the proposed launch date. A compromise was agreed that meant that the launch would only be limited to properties with 4 or more bedrooms – other properties would be brought into the system later in the year.

I only wanted to know if it worked or not – I didn’t want war and peace
Yes I’m sorry – I seem to have gone on a bit there. OK well to cut to the chase on this – it should have meant that you’d have a pack which would let you exchange contracts very quickly (which is good). In reality we’ve got something that’s watered down and that few people actually look at. Introducing the PIQ is a good first step towards making it useful.

Are they any use at all then?
Well yes they are – just having the searches and a copy of the deeds up front saves a fair bit of time. Earlier this year (April 6th 2009 to be precise) another change was introduced whereby the sellers have to fill out a Property Information Questionnaire as well. This contains some useful information about the property. However, buyers solicitors will also want other information to be filled out by the seller – so they end up filling out 2 sets of questionnaire. Yes it is stupid and no I don’t know why they weren’t all put into one questionnaire. Hopefully in time the two will be merged so the PIQ starts to become useful.
There are also moves afoot to introduce the ‘exchange-ready HIP’ – which is meant to accomplish the original goals of the HIP – it’s meant to do what it says on the tin. We’re currently taking part in trials of this, as anything that can be done to reduce the time taken for conveyancing is good from our point of view.

Aren’t the Tories going to scrap them?
We don’t know but they are making noises in that direction. This is a pity because although when they were being introduced many people were saying they were a stupid idea, when you actually spoke to them what they actually meant was this is a stupid way of implementing a great idea. Everyone seemed to agree that the idea of producing everything up front was a good idea but each part of the industry (surveyors, estate agents, solicitors etc) all had their own idea on the best way to go about it.
So if the Tories do decide to scrap it they may find they’re walking into a political hot potato (how’s about that for a mixed metaphor!) – it would be better to evolve the existing system to make it deliver on the promises originally made. Taking us back to a system of letting the buyer gather all the information after the sale has been agreed seems incredible – you’d be introducing legislation that slows down the conveyancing system.
The other thing to bear in mind is that there is now a whole industry that has built up on the back of HIPs – Solicitors have employed staff to do the work – there are many many HIP providers who all employ staff just for this work, and finally there are thousands of independent Domestic Energy Assessors (the people who do the Energy Performance certificates) who have retrained to create a new career for themselves (they can’t actually do away with the Energy performance Certificates as we still need to comply with the Kyoto protocol).
Getting rid of all that infrastructure doesn’t make any sense – but in our previous dealings with the government that doesn’t seem to have stopped anyone before.

I’m confused – can we have a summary?
Ok – it started out as a good idea that everyone agreed on. They then argued about the best way to introduce it and a watered down version was phased in. It’s not great but it’s better than nothing. The system is evolving (introducing the PIQ was a good first step), and eventually may become what was originally hoped for – something that makes house buying and selling quicker and less stressful. But then again it may not – no-one knows.

I hope this guide helps, but if you’ve got any questions about it then please do so by adding comments below

Cheers

Mark