James Letchford discusses commercial properties and boundaries

When is a boundary not a boundary?

I remember years ago being dumbfounded that boundaries to registered properties can move and change over time. Having dealt with commercial properties with rigid boundaries, the thought had never crossed my mind.

First a distinction needs to be drawn between the concept of a legal boundary and a physical boundary. A legal boundary is an imaginary line dividing one property from another. It is rarely identifiable with any precision in legal documents. Indeed, in years gone by, boundaries would often be drawn badly in thick felt tip pen by clumsy solicitors, although thankfully this practice ended some years ago. A physical boundary is what you think about when talking about boundaries in normal life: a fence, a wall or a hedge. The legal boundary may run within the physical boundary or on either side and presumptions about ownership of land based on physical boundaries is outside this note given its complexity.

Given the difficulties in establishing the position of the legal boundary due to physical constraints, and assuming there are no specific boundary agreements or any formal determination of the legal boundaries, HM Land Registry applies a general boundaries rule when dealing with registered properties. This essentially means that the precise line is undetermined until fixed.

Whilst I knew of this, my surprise came when I was dealing a large site for a client. Given the complex nature of the different titles, we asked the Land Registry to plot the titles against each other, which they did showing them in different colours. Except part of the land was coloured white. White was bad as it meant that the land was registered. How could this be? How had we missed that part of the land which was crucial to the development was not part of our client’s title?

The answer was that the unregistered land comprised tidal waters. There is a legal doctrine of accretion and diluvian which recognises that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. These changes may be gradual and imperceptible. There may be gain or loss, but this is accepted and considered fair.

In our case the property had been registered some 80 years before, so we had to look at the changes to the mean high-water mark: the tides are a changin’. Whilst initially a shock at the extent of the unregistered land, thankfully there was an easy explanation and a solution to deal with this issue was found.

Whilst not particularly common, knowing that boundaries are moveable is useful to remember and may catch the unwary (and ill-advised) purchaser off-guard when buying property adjoining or containing part of a river.

For specific advice on boundaries, or if you have questions about any other commercial property issues, please contact James Letchford on 020 7412 0050 or james.letchford@hunterslaw.com.