12. BOUNDARIES AND REGISTRATION OF TITLE

12.1 INTRODUCTION

The object of this section is to assist in the task of making boundary decisions.

The term boundary has no special meaning in law. In the context of property ownership it can be considered to have several meanings.

The term may be used to describe an imaginary or invisible line which divides one person's title from that of another. Such a line, by definition, has no width and can therefore only be an abstract concept which in practice can rarely be precisely reflected in any form of boundary demarcation on the Ordnance Map.

However in Scotland deeds do attempt to define boundaries with a great deal of accuracy and, while the line of boundary may be described as being imaginary and invisible when it is stated to be "the centre line of a wall" or "the centre line of a hedge", it is certainly not imaginary or invisible when it is described as the inner or outer face of an existing wall. It was considered that where a deed contained this information it should be carried forward to the Title Sheet but would not be guaranteed unless the Keeper chose to guarantee it.

Again the term boundary may be used to simply describe a physical feature (wall, fence, hedge, etc.) as being the title boundary and by not stating "centre line", "outer face" or "inner face", the deed so defining the boundary is really giving an imprecise definition of that boundary. So although a physical feature is referred to which can be identified on the plan, we are given no indication of whether none, half or all, of the feature falls within the title.

Many deeds contain plans but in referring to these plans the deeds themselves may be imprecise referring only to "the areas of land coloured red on the plan annexed hereto".

A further point to be borne in mind when dealing with boundaries is their position when related to adjoining properties. Many deeds in Scotland do attempt to define boundaries with great accuracy but although the boundaries are described in great detail and at great length in the deed the plot itself is a "floating rectangle" and the deed fails to relate the properties position to surrounding detail and as there is no accurate of fixed starting point the plan fails.

Whilst the precise position of physical features which demarcate boundaries may be determined by inspection on the ground, the extent to which their precise position on the ground may be recorded on a plan (e.g. for land registration purposes) will largely depend on the accuracy of the survey and the criteria for accuracy laid down for the particular Ordnance Map on which the property is shown.

Even the most meticulous surveys with the most modern and highly accurate survey instruments are carried out within certain defined tolerances of error, and the large sale Ordnance Maps used as the basis for registration of title are no exception.

So, the main practical difficulties of establishing the precise position of the boundaries of a property for the purpose of registration of title can be summarised as follows:

The Ordnance Maps used to establish and to record the positions of the boundaries of a registered title have specified accuracy tolerances.

Although many deeds in Scotland attempt to define boundaries with a very high degree of accuracy both by description and by plan some of these descriptions and plans are "floating rectangles" not related accurately to surrounding detail on the Ordnance Map, they cannot be identified thereon.

The nature of physical boundaries is such that unless the description in the deeds or the plans somehow draws particular attention to the precise position of the boundary in relation to those features [inner face, centre line etc.] the relationship of the line of title boundaries to physical boundaries remains obscure and may never be determined, either on the ground or in the conveyancing documents.

When both the Reid and Henry Committees were considering boundaries they did suggest that the delineation of the subjects on the Title Plan should be subject to the qualification "or thereby" which is common in deeds and in fact General Information 2(e) inside the back cover states "Lineal measurements shown in figures on Title Plans are subject to the qualification "or thereby" and "Indemnity is excluded in respect of such measurements".

From purely a plans point of view forgetting the legal implications any dimensions shown on the face of a Title Plan should be plotted as precisely as the scale allows.

It should always be borne in mind when dealing with Ordnance Maps that although it is our intention to show the extents of registered properties as precisely as possible and on up-to-date large scale Ordnance Maps, these maps do have specified accuracy tolerances which should be borne in mind when making boundary decisions.

In cases of doubt on boundary questions surveys should always be instigated to reveal the latest development on the ground. However it might be that from the information to hand a decision is made which at a later date is revealed to be wrong as the detail shown on the Ordnance Map was inaccurate.

At this time the Keeper has discretion to raise the matter of compensation with the Ordnance Survey Department as Section 12(3)(d) of the Land Registration (Scotland) Act 1979 states.

"There shall be no entitlement to indemnity under this section in respect of loss where the loss arises as a result of any inaccuracy in the delineation of any boundaries shown in a Title Sheet, being an inaccuracy which could not have been rectified by reference to the Ordnance Map, unless the Keeper has expressly assumed responsibility for the accuracy of that delineation".

When dealing with boundary questions both plans and legal staff should always remember that the Department should try not to create disputes where none have existed before.

12.1.1 Need For Accuracy

It might be concluded from the number of factors involved that the need for accuracy in the preparation of Title Plans is not of major importance. Nothing could be further from the truth.

The many practical difficulties in portraying the line of the precise position of a title boundary do not remove the responsibility for producing a Title Plan which shows as accurately as possible the extent of registered subjects, as is evidenced by the pre-registration documents together with any other evidence of fact or law which may have a bearing on the circumstances in question.

Decisions by plans officers on matters relating to boundaries are mainly concerned with assessing the degree of compatibility between the position of a boundary shown on a deed plan or described in a pre-registration deed and a physical feature shown on the Ordnance Map. Such consideration will determine whether or nor the latter can be accepted for the purpose of indicating the registered title boundary.

It should be noted that a similar decision has to be made even where the boundaries are not shown on the Ordnance Map, as it is still necessary to consider the adjacent boundaries shown on the said map in order that the position of the registered land in relation to features shown on the Ordnance Map can be established with sufficient certainty and accuracy.

The preparation of inaccurate Title Plans can be due to many different reasons, including the interpretation of deed plans or the Ordnance Map, the exercise of bad judgement, errors in scaling or failure to take sufficient cognisance of important intrinsic information such as the age and nature of boundaries reported on survey, or the position of adjoining registered title boundaries.

It is important that great care is taken in the preparation of Title Plans as errors can result in the Keeper having to pay compensation in the event of actual loss caused by the error. However, it should also be borne in mind that errors may cause considerable inconvenience and hardship to members of the public which may not be adequately covered by the payment of financial compensation.

Thus, the need for care in the exercise of judgement on boundary decisions relates not merely to the need to keep compensation payments to a minimum, but above all, to the duty to provide a good and reliable service to the public and the legal profession.

12.1.2 Background Knowledge

Boundary decisions by plans staff require the exercise of sound judgement, based on a good working knowledge of the law relating to property boundaries, together with a clear understanding of the rules and principles which govern the preparation of the various large scale Ordnance Maps. This knowledge must at all times be supported by a good working knowledge of our mapping and survey procedures and ultimately by the application of common sense.

The application of common sense to boundary decisions is critical but it cannot be taught easily, if at all. Nevertheless, it will develop as staff gain practical experience.

The more difficult or important boundary decisions can be referred to senior staff who should impart the benefit of their knowledge, experience and judgement to the staff whom they are developing.

The implications of making a wrong boundary decision can reach far and wide so staff should not hesitate to consult with their plans referee in any case of doubt.

Some problems on boundaries will also involve extent and may on occasion raise questions as to adequacy of title and advice on these matters should be sought from legal staff.

12.2 LEGAL CONSIDERATIONS

12.2.1 Boundary Law

Relatively little of the general law relating to property boundaries is derived from statute. The major part of this branch of the law derives from the decision of the Courts over many years which themselves are based on long-standing and universal acceptance of certain legal presumptions. In a concise section of this nature it is not possible to provide details of all the relevant case law or statutes on which the statements made hereunder are based, but it may be said that such statements are firmly based on judicial or statutory authority unless this is otherwise indicated in the text.

No textbook deals solely with boundaries but the best statement of the law in this context is contained in the fifth edition of Burn's Conveyancing Handbook parts of which have been used in the following text to describe particular boundaries.

12.2.2 Land Boundaries

In considering the problems which may arise relating to boundaries which divide land into portions, it is perhaps helpful to recall the definition of "land" in the context of conveyancing. In the ordinary legal sense land includes not only any portion of the earth's crust and any buildings and fixtures standing on it or attached to it, but includes the airspace above and the ground beneath, theoretically "from the centre of the earth to the sky". Thus in the legal context land must be considered as a three dimensional entity, and it follows that the extent of the land may be limited by vertical or horizontal boundaries.

A statutory description of "land" is given at Section 28(1) of the Land Registration (Scotland) Act 1979 as "includes buildings and other structures and land covered with water".

From this definition it will be seen that a part of a building, a flat, which may have no physical contact with the ground is "land" but it should be borne in mind that the walls, etc. which form the physical boundaries are burdened with rights of support etc. under the Law of Common Interest.

However, in the main, the division of "land" is usually demarcated by vertical boundaries, such as fences, hedges, walls, seashore, water courses etc. and may be either man-made boundaries or natural.

Horizontal boundaries are generally artificial and refer to parts of buildings or possibly airspace within or under a building.

12.2.3 Legal Presumptions

The primary evidence as to the position of a boundary is in the documents of title to the properties concerned. However, documents of title do not always contain sufficient descriptions to enable the precise position of a boundary to be determined. In such cases legal presumptions relating to certain types of boundary feature may be helpful to determine the position of boundaries, although it should always be borne in mind that the presumptions may be rebutted by evidence to the contrary.

A brief description of the main presumptions with which plans staff may come into contact are as follows:

1. HEDGE AND DITCH If property is described as being bounded by a hedge or ditch the presumption is that the hedge or ditch is excluded, the normal rule being that the feature by which a property is bounded is excluded.

This is rebutted e.g. if the deed states the boundary is the outer face of the hedge or the further bank of the ditch.

2. ROADWAYS - PUBLIC ROADS The normal presumption is that they are owned by the adjoining owners up to the centre line of the road, (medium filum) even if the highway authority maintains them, unless the highway authority has specifically acquired the ground on which the road is built, in the absence of a recorded title to the ground on which the road is built what the highway authority has is a right of passage in trust for the public.

PRIVATE ROADS The normal presumption here is that if a road is a boundary between two estates the adjoining owners own to the centre line of the road, (medium filum) but with regard to private roads generally much depends on the terms of the deeds. For example if a title describes the subjects as being on the east side of a road or bounded on the west by a road the presumption will be that the road is excluded.

3. NON-TIDAL RIVERS AND BURNS Where properties are separated by a non-tidal river the presumption is for ownership up to the centre line (medium filum) of the river.

In one case the boundary was described by reference to points on the river bank. Even in this case it was held insufficient to displace the presumption for the medium filum of the river being the boundary. If however it is clear that the contrary is intended the presumption is defeated as in the case of the North British Railway Company v the Magistrates of Hawick 1862 lm 200.

If the course of the river gradually changes over a period of time, the position of the boundary will change accordingly. Changes as a result of human agency do not, however, lead to an alteration in the line of the boundary. Where there is a sudden, but permanent change in the course of the river, whether or not it is due to natural causes, the boundary will remain along the centre line of the former river bed.

4. ISLANDS It is presumed that an island in the middle of a non-tidal river or burn will belong equally to adjoining owners, or in such proportion as the centre line of the stream bisects. An island entirely on one side of the river or burn will belong to the near-side owner.

An island arising in the sea or a tidal river will belong to the Crown.

5. SEASHORE This is a complex area so prior to giving some general information it is important that staff know that Section 14 of the Land Registration (Scotland) Act 1979 states the following:

1. If

1. It appears to the Keeper that

1. an interest in land which is registered or in respect of which an application for registration has been made consists, in whole or in part, of foreshore or a right in foreshore, or might so consist, and
2. discounting any other deficiencies in his title in respect of that foreshore or right in foreshore, the person registered or, as the case may be, applying to be registered as entitled to the interest will not have an unchallengeable title in respect of the foreshore or the right in foreshore until prescription against the Crown has fortified his title in that respect and,

1. The Keeper wholly excludes or proposes wholly to exclude rights to indemnity in respect of that person's entitlement to that foreshore or that right in foreshore, and is requested by that person not to do so, the Keeper shall notify the Crown Estate Commissioners that he has been so requested.

1. If the Crown Estate Commissioners have:

1. within one month of receipt of the notification referred to in subsection (1) above, given to the Keeper written notice of their interest, and
2. within three months of that receipt informed the Keeper in writing that they are taking steps to challenge that title, the Keeper shall:

1. during the prescriptive period, or
2. until such time as it appears to the Keeper that the Commissioners are no longer taking steps to challenge that title or that their challenge has been unsuccessful, whichever is the shorter, continue wholly to exclude or, as the case may be, wholly exclude right to indemnity in respect of that person's entitlement to that foreshore or that right in foreshore.

1. This section, or anything done under it, shall be without prejudice to any other right or remedy available to any person in respect of foreshore or any right in foreshore.

6. CANAL BOUNDARIES A canal boundary excludes the canal and tow path.
7. INLAND LOCHS Where the description is bounded by Loch X the presumption is that the ownership includes a segment of the solum of the loch. Normally this is found by drawing perpendicular lines from the edge of each property to a centre point. Each owner having a boundary to the loch has a joint right to use the loch for trout fishing and boating.
8. WALLS, FENCES ETC. Where the boundary is a wall, fence or ditch, the wall, fence or ditch is excluded. The normal rule is that the feature by which subjects are bounded is excluded from the subjects.
9. If the description is "surrounded by a wall" the wall is probably included but it is better to check the deeds to see if there is any further information either confirming or rebutting this assumption.
10. MARCH STONES At one time March Stones were a common method of marking the boundary and where March Stones are used the presumption is that the boundary runs in a straight line between them unless there is some pronounced natural feature which renders this unlikely.
11. EAVES, FOUNDATIONS Plans attached to deeds generally show the boundaries of the subjects at ground level only, but the foundations and eaves may extend beyond the defined boundary line. In such a case, the property includes these projections (but not the air space between them), unless there is evidence to the contrary.

12.2.4 Plans and Verbal Descriptions

The only essential at Common Law is that the subjects are sufficiently described and the following quotation from "Menzies Lectures" shows what is considered sufficient - "There is no invariable rule as to the manner in which lands must be described. Only this is indispensable, that means be furnished for ascertaining with certainty the lands or other subjects conveyed".

In practice a variety of methods of describing property are used depending on the circumstances of the particular deed.

A plan is not essential to supplement a written description, but, even in the simplest case, it is always desirable.

Plans staff in the main will be concerned with particular descriptions in deeds which are so called because they define the limits of the subjects conveyed by reference to boundaries or measurements of boundaries and they are often supplemented by a plan. A description in which all the boundaries are described is known as a full bounding description.

In some cases the description relied totally on the plan, e.g. "that piece of land in the Parish of X and County of Y edged red on the plan annexed and subscribed as relative hereto". This method was held to be competent in the case of North British Railway Company v the Magistrates of Hawick 1862 1m 200 and it was held that the title was a bounding title.

It is inevitable that in a percentage of cases where both a verbal description and a plan are used there will be conflict between the verbal description and the plan. There have been a number of decided cases where there has been conflict between a verbal description and the plan and the Courts have taken the view that each case must be looked at on its own merits.

However, a couple of general rules do emerge from these cases and are stated in McDonald's Conveyancing Manual as follows:

1. "If, in the deed, there are written boundaries with stated measurements, and these conflict with a plan annexed, the plan will normally be treated as demonstrative and the written boundaries rule.
2. If, in the deed, there are written boundaries without measurements, and these conflict with a plan CONTAINING MEASUREMENTS, the plan will normally be preferred. But the deed may declare expressly that the plan is "demonstrative only and not taxative"" and in this case the written boundaries may still hold the balance of power.

However the statement made earlier should always be borne in mind "each case must be looked at on its own merits".

Occasionally deeds identify properties by reference to Ordnance Survey parcel numbers and areas shown on specific editions of Ordnance Maps. Nevertheless, it should be noted that because a measurement of area is by its nature not precise, being susceptible to different methods of computation, an area of subjects described in a deed is covered by the "or thereby" qualification and is therefore not definitive.

As a general rule, where there are significant discrepancies between an area described in a deed and the annexed plan or Ordnance Map the matter must be fully investigated and if necessary raised with the legal examiner.

12.2.5 Dimensions

Where a property is conveyed which is surrounded by long established physical features, dimensions carried forward from earlier deeds which are not strictly in accordance with the development on the ground have got to be handled cautiously.

Is the variation material. Always remember the scale of the Ordnance Map being used.

Again, each case has to be treated on its own merits and any cases of doubt should be referred to senior officers for assistance.

12.2.6 Section 19 Agreements

A property owner may fix or alter the boundaries of his land by agreement with the adjoining owners e.g. by selling or exchanging lands. A deed is generally necessary to give effect to any such agreement although under the requirements of Registration of Title this is not always the case.

Section 19 of the Land Registration (Scotland) Act 1979 says:

1. This section shall apply where the title to adjoining lands disclose a discrepancy as to the common boundary and the proprietors of those lands have agreed to, and have executed a plan of that boundary.
2. Where one or both of the proprietors hold his interest or their interest in the land or lands by virtue of a deed or, as the case may be, deeds recorded in the Register of Sasines, the agreement and plan may be recorded in the Register of Sasines and on being so recorded shall be binding on the singular successors of that proprietor or, as the case may be, those proprietors and on all other persons having an interest in the land or, as the case may be, the lands.
3. Where one or both of the interests in the lands is or are registered interests, the plan with a docquet thereon executed by both proprietors referring to the agreement shall be registrable as affecting that interest or those interests, and on its being so registered its effect shall be binding on the singular successors of the proprietor of that interest or, as the case may be, the proprietors of those interests and on all other persons having an interest in the land or, as the case may be, the lands.

Should a problem on boundaries arise on casework where it is felt that the matter might be resolved by adjoining proprietors agreeing to accept the development on the ground the case should be passed to the appropriate senior Plans Officer with all relevant material, for consideration.

If in agreement, the senior Plans Officer will consult with a legal examiner for further consideration and of action in resolving the matter.

It should be noted that the Section 19 Agreement may only be used where the discrepancy as to the common boundaries is identified in the Titles. Where the Titles agree with one another but do not agree with the Ordnance Map, it is not appropriate to use a Section 19 Agreement. Under such circumstances, a variety of solutions are available from corrective conveyancing to affidavits. The advice of a Legal Officer should be sought.

12.3 BOUNDARIES AND THE OS MAP

12.3.1 The Ordnance Map

12.3.2 Accuracy of Ordnance Maps

This subject is discussed in some detail in chapter `11 of the descriptive manual entitled 'Ordnance Survey Maps' by J B Harley. The description of the measures of accuracy in that work is however highly technical, and it is sufficient to make some fairly broad statements about the accuracy of the Ordnance Maps which we use. The large scale national grid maps we commonly use in the urban areas are normally derived from a 1/1250 resurvey, and generally have been updated by continuous revision. Whilst much of the detail may be shown at something approaching plottable accuracy, where errors occur in positional accuracy, only in one case in eighty should they exceed about 1 metre. On 1/2500 resurvey, such errors may be double this size, and may be even greater on 'overhaul' maps. County series maps are of an even lower order of accuracy.

12.3.3 Ordnance Survey Rules

The rules which govern the work of OS surveyors are contained in a series of volumes (or modules) known as 'Surveyors Instructions'. Copies of those modules which are relevant to the Agency are held by the senior Plans Officer and are updated from time to time.

Module 3 of the Surveyors' Instructions sets out the principles which govern the representation of detail on the Ordnance Map. Whilst it is impossible to lay down instructions for every item of detail to be recorded, most of the commonly encountered features are covered, and general principles are set out to assist with the less common. A number of the features recorded on the Ordnance Map which are frequently of interest to Plans staff are mentioned in more detail below. When plans staff are uncertain as to the characteristic of a particular feature which is depicted on the Ordnance Map and on which a problem has arisen, reference to the Surveyors' Instructions may be of some assistance.

When considering detail depicted on the Ordnance Map it is essential to note the scale at which the original survey was conducted, because there are some differences in the rules governing representation of detail at the different scales.

Detail depicted on the Ordnance Map represents permanent features at ground surface level which can be shown at the scale. Where more than one level exists, e.g. bridges, flyovers, town centre complexes etc., the 'upper level of through public communication' is shown. Overhead detail is shown if it is of such size and character as to constitute a useful feature on the map, but underground detail of features beneath an elevated road are not normally shown except for communications in tunnels or subways.

A variety of detail is recorded on the Ordnance Map, i.e. buildings, structures, objects, boundaries, survey control points and physical ground features (natural or artificial) whose extent, shape and/or planimetric position can be shown to scale or by symbols. Some of the features recorded on the 1/1250 and 1/2500 Ordnance Maps are of more relevance to plans staff than others. More detailed information relating to the representation of detail which is frequently found to be of relevance to plans staff in their day to day work is set out in sub-paragraphs a) to g) below:

1. Buildings All permanent buildings whose plan outline covers an area of 8 square metres, or more, are shown. Smaller buildings (covering an area of at least 1 square metre on the 1/1250 scale or 4 square metres on the 1//2500 scale) may be shown when they are in such a detached position as to be relatively important topographical features. Juts, recesses, bay windows and porches are shown when their smallest dimension is not less than 1 metre on 1/1250 scale or 2 metres on 1/2500 scale, or when they abut onto a public thoroughfare. The main corners of buildings are always shown in their correct positions (within the limits of accuracy of the map).
2. Roads and paths Roads with metalled surfaces, i.e. any artificial surface including asphalt, concrete, and gravel, are shown on the Ordnance Map. Normally the edge of a metalled surface is depicted by a pecked line, but where there is kerbing which is 0.3 metres or more high, this will be depicted by a firm line. All unmetalled ways, including unmetalled private drives of 40 metres or more in length, which are permanent and used by vehicles, are shown. Paths (i.e. established ways other than roads or tracks) may be either in a made or unmade form. Made paths are those whose surfaces are paved or metalled. The edges of such paths are shown by pecked lines. Unmade paths are sometimes shown on the map by pecked lines, but caution should be exercised in acceptance of the accuracy of the position of such paths on the Ordnance Map, particularly where establishing a registered title boundary alongside such a path.

It should be noted that on the 1/10,560 scale Ordnance Map the width of a roadway may sometimes be exaggerated to accommodate a road name.

 

3. Railways Standard gauge railway lines, and tramways of a standard gauge or wider, are shown to scale by firm lines. Narrow gauge railway lines and narrow gauge tramlines are shown by symbol. The edge of railway metalling is shown by pecked lines. Tunnels to railways which normally run on the surface, are shown by pecked lines. When the alignment of a tunnel was not apparent to the OS surveyor at the time of survey its position on the map is based on information obtained from the owning body or the best available source.
4. Watercourses Permanent clearly defined watercourses, e.g. drains, ditches, streams and rivers, are shown to scale by two firm lines of 1 metre or more in width on the 1/1250 scale; but by a single firm line if less wide. The width, when shown is that at normal winter level. Catch drains alongside hedges, railways and roads, and single drains in water meadows are not shown. If one or both sides of a 'double' watercourse are fenced, hedged or walled and any one side cannot be drawn distinct from the fence etc., the fence line is shown on the Ordnance Map and the side of the watercourse omitted.
5. Lochs, ponds and reservoirs The outline of a non-tidal loch or pond at normal winter level is shown by firm lines. The outline of the top water level of an open reservoir is similarly shown by a firm line.
6. Any permanent features which do not constitute an obstruction to pedestrians, i.e. detail less than 0.3 metres in height are shown by pecked lines. The centre line of any taller permanent fences or walls which are less than 1 metre wide on the 1/1250 scale, or 2 metres wide on the 1/2500 scale, is shown by a firm line. Walls which are 1 metre or more wide at 1/1250 scale or 2 metres or more wide at 1/2500 scale, are shown to scale by a double line. Where a wall forms part of a building it is depicted as described in sub-paragraph a) above. The centre line of the roots of hedges, whatever their width, is shown by a single firm line. Where a fence, wall or hedge runs approximately parallel to another firm feature and so close that the line cannot be drawn distinctly apart, only one is shown; this is normally the more important feature of the two. Preference is given by the OS to the detail to which an administrative boundary is mered or which obviously defines a property boundary. Within gardens it is not usual to show plot fences or paths.
7. Private gardens Except where private gardens are places of public interest, the following detail only is shown within them on the Ordnance Map:

1. Permanent buildings - see a) above
2. Continuous topographical features - e.g. streams, slopes etc.
3. Roads or tracks over 40 metres in length
4. Detail to which an administrative boundary is mered.

12.4 BOUNDARY PROBLEMS

12.4.1 Introduction

The aims of this final part are to give practical guidance in the common boundary problems. It cannot be too strongly emphasised that boundary decisions must take account of all the known factors involved in each case and a systematic approach to decision-making should be adopted.

In the context of land registration, boundary decision work at its simplest involves making a comparison between the description and the plan(s) of the property, evidenced by title deeds and the topographic detail shown on the latest available Ordnance Map, to establish whether there is sufficient compatibility to accept the representation of the topographic detail as giving a sufficiently accurate indication of where the title boundaries lies, within the limitations of the accuracy of the map. Whilst surveys or inspections of the site (i.e. at the time of registration) are to be avoided, so far as is possible, to keep the cost of registration at an acceptable level, it should be borne in mind that under our system, it is in fact possible to prepare a registered title plan on the basis of perfect compatibility between deeds and Ordnance Map, but the physical extent at the time of registration may nevertheless by substantially different. Thus even in the most straightforward case there is an element of risk which is built into the system. Good boundary decision-making therefore involves establishing registered title extents with the minimum of risk, and in the light of all the available information which may reasonably be sought, having regard to the particular circumstances. The element of risk is, however, always present, and can never be entirely eliminated, even if a survey were made on every application. The cost of doing so, would, in any case, be quite prohibitive, and the number of potential errors likely to be eliminated would be too small to justify such an approach.

It should be noted that this part of the Practice Manual is primarily concerned with the duties of plans executive staff in the making of decisions as to the position of registered boundaries. Generally speaking matters requiring decisions, which are referred to in this section are those which are dealt with solely by plans staff at the appropriate level. It is important however to attempt to distinguish 'boundary' problems from 'title' problems, although admittedly this can sometimes be difficult in practice. It is sufficient to say that whenever there appears to be a material deficiency in the title to the land or part of the land sought to be registered, the matter should properly be referred to a legal examiner through the usual reference channels.

12.4.2 Bounding Description

It is normally only on first registration work that this problem occurs.

It is normally only possible to complete mapping "by description only" when the evidence on the Ordnance Map is that the property is fully referenced on all sides, and has been so for a considerable period. A common problem is to decide whether or not a passageway at the back or side should be included. In the absence of any other evidence such as reference to rights of way etc. any such passageway should normally be excluded from the title.

When mapping by description only, a great deal of trust usually has to be placed in the house numbering shown on the Public Index Map.

Mapping "by description only" should be undertaken with caution, and if there is any doubt a plan should be requested under Section 4 of the Land Registration (Scotland) Act 1979. The duplication of road names presents particular dangers when mapping by description only.

When consideration is being given to requesting a plan because some doubts arise from the description, the following specific points should be investigated to see whether they provide additional evidence of the positions of the boundaries.

1. The application form, paying particular attention to any comments added by solicitors.
2. The earlier documents of title, paying particular attention to any plans which may show the original estate layout or other assisting information. If a contract or earlier deed is used to assist in the identification of the land in the DIR, a copy of the appropriate document should be retained and a note to this effect recorded in the 'Special Instructions' panel of the draft Title Sheet.
3. The Ordnance Map detail from all available editions of that map, having regard to the style and type of development.
4. Adjoining or adjacent registrations, the papers of which may include plans or survey reports. Caution may sometimes need to be exercised to ensure that a wrong decision taken on an adjoining title is not compounded by mapping the current application to adjoin.

If after a reasoned assessment of the available facts of the case an assumption cannot be justified a plan must be requested.

Identification of outbuildings An outbuilding can only be included in a Title Plan on the strength of description alone where no reasonable doubts exist about its occupation. Particular caution must be exercised when the outbuilding abuts a boundary as it is always possible that it is occupied separately or with a neighbouring property.

When it is necessary to clarify an inadequate description, the correct procedure is to raise a requisition for a plan in the first instance. However, in any case where the root of the problem is considered to be the inaccuracy of the Ordnance Map, an OS survey should be made.

Plotting boundaries from description As a general rule the plotting of a title boundary on the strength of a verbal bounding description alone is a dangerous practice and is not permitted. There are possible exceptions to this rule:

1. when the description is very detailed, and includes measurements which can be fully related to adjacent features on the Ordnance Map;
2. when the boundary required to be plotted is shown defined on an earlier edition of the Ordnance Map, and there is no evidence in prior title deeds to suggest that the extent of the land in the title or the extent of occupation has changed since the date of the survey.
3. Even in these cases it is prudent to seek the advice of a senior officer, before completion of mapping. If any doubts exist, a plan must be requisitioned.

12.4.3 Deed Plan

Acceptance of 'fencing' From the information contained in the earlier parts of this section, it will be appreciated that there are a number of factors which may permit some degree of discrepancy between deed plan and Ordnance Map to be considered as acceptable. The interplay and the weight of each of these factors needs to be considered carefully whenever one is faced with a boundary decision in plans work. Here is a brief summary of the more important factors which may permit the acceptance of discrepancies:

1. "Or thereby rule" This may permit the acceptance of discrepancies which appear to derive from the width or thickness of physical features surrounding or adjacent to the property. In certain circumstances, this may also permit the acceptance of discrepancies relating to the extent of land which may (or may not) be included in an adjoining road or stream. The rule does not provide 'blanket cover' for discrepancies which are not capable of rational explanation.
2. Accuracy of OS base map The accuracy tolerances and the rules for representation of detail on the Ordnance Survey Maps already described may permit acceptance of some discrepancies. The extent to which such discrepancies can be accepted will also depend on the nature of the OS source document, and the nature of the particular boundary features shown (if they are known), see (iii) below.
3. Age and nature of boundaries Knowledge of the age of a boundary may permit a discrepancy to be accepted, if it appears to provide evidence that the extent or occupation of the property has been limited by the feature for a number of years. However, plans staff are warned against accepting large discrepancies on this basis, which may amount to a deficiency of title (i.e. title deeds may exist for the part of the land apparently not included in the deed). Such cases may be considered by a senior Plans Officer and any material deficiency of title drawn to the attention of a legal settler.

A point which must be emphasised is that precise knowledge of the age of a feature is very rarely available. Estimates of the age of boundaries provided by OS surveyors can only be approximate, and such information must therefore be used with due caution.

Knowledge of the nature of a boundary may permit discrepancies to be accepted which derive from the fact that the precise line of the feature may be difficult to determine on inspection, such as the centre line of a belt of established laurel bushes. The problem is linked to (i) and (ii) above.

4. Quality of deed plan Where a deed plan is old and poorly drawn (e.g. a freehand sketch), it is sometimes permissible to accept some fairly wide discrepancies in measurement. In such circumstances, one often has to consider whether the apparent intentions of the parties to the transaction which has induced the registration will be correctly reflected if the now established position of the fencing is accepted. In cases of doubt, the advice of a senior officer should be sought. Where a deed plan is modern and appears to be well drawn, it is far less feasible to accept discrepancies, unless they can be rationally explained as arising from one of the other factors referred to in this section.
5. Discrepancies between description and plan Where a discrepancy between deed and plan exists, the test is to determine whether or not the plan appears to be intended to control the description. If it does not, and the established fencing does not appear to conflict with the verbal description in the deed, it may be possible to accept the current position of the fencing. Where the deed is the deed inducing registration be it FR or TP, and the conflict between description and deed plan appears to be of a serious nature, requisitions must be raised to have the description or the plan amended or substituted. The advice of a senior officer should always be sought, in cases of doubt.
6. Movement of natural boundaries The boundaries in question are non-tidal rivers and streams, islands within the same, and the line of the foreshore.
7. Adjoining registrations Where the boundary of a property to be registered forms a boundary of an adjoining existing registration, a minor discrepancy between the position of the boundary shown on the deed plan and the existing registered boundary may often be accepted, without further detailed investigation. However, if there is a significant discrepancy, the files of the adjoining title should be obtained and all available deed plans, notes, survey reports etc. should be considered before the boundary decision on the existing adjoining title is followed on the new registration. In the absence of any written instruction by a senior officer, or survey information which would appear to justify a significant discrepancy, it may be necessary to refer the current application with the files to a senior officer to review the extent of the existing registered title. Where an inspection of the register or the files reveals that the present registered proprietor of the adjoining title is also the applicant for the present registration, the discrepancy between deed plan and fencing can usually be accepted without further question.

There are circumstances where even small discrepancies between the extent shown on the deed plan and the fencing shown on the OS cannot be permitted. For instance, the size and shape of a relatively small area of land in a title can often have a crucial effect on the practical use of a larger or more valuable piece of land in the same ownership, and thus can have a very marked effect on the value of the property as a whole. A very common difficulty encountered, is where a deed plan of a residential property shows a gap between the side of the house and the flank fence just wide enough to permit access by car and possibly just wide enough to erect a garage. The deed plan may possibly show a dimension between the house wall and the flank fence. A deficiency of (say) only two feet (0.6m) may mean that a garage cannot be built in the position shown on the deed plan. Similarly, access to the rear of commercial premises by van or lorry is often essential to the running of a business, and relatively small discrepancies can drastically reduce the value of the whole property. Plans settlers must be watchful for such situations, and where they occur, the discrepancies must be checked out by survey, if necessary, and pointed out to the solicitors by means of requisitions prior to mapping.

Plotting title boundaries Where a boundary is undefined, it is necessary to decide whether the deed plan is sufficient to enable the boundary or boundaries to be plotted with accuracy on the OS map. In particular the deed plan must show sufficient adjoining detail which appears on the OS map (after revision, if necessary), and the plan must be drawn to a recognisable scale, preferably with dimensions from the adjoining features to fix the position of the boundaries in relation thereto.

Where the fixing detail shown on the deed plan does not accord well with the corresponding OS map detail, the boundaries must not be plotted to give a spurious effect of compatibility. For example, it might be possible to plot a square as a rhombus to fit in with adjoining detail, the sides of the area remaining the required length, although the angles of the corners would no longer be square. Many similar examples could be cited. Whilst it is true that slight distortions in size and shape caused by misalignment of long established fencing can sometimes be accepted, it is not an acceptable practice to create such a situation by distortion in plotting. If it is not possible to reproduce on the OS map the extent shown on the deed plan, a requisition will need to be raised (possibly after survey, depending on circumstances).

Plotting through buildings Deeds relating to flats, or other 'floor level cases', whether purpose built or not, may incorporate large scale, reasonably well drawn plans showing the extent conveyed in relation to walls within the building. The general intention of the parties is thus usually fairly clear. However, where a conveyance of an area of land involving no apparent 'floor level' considerations, refers to a small scale plan showing external boundaries passing through buildings, doubts can arise as to the intentions of the parties.

The problem of a plan at a small scale, is that it is usually primarily designed to illustrate the area of land within which a building lies, and not the internal details of the building itself. Much depends of course on the circumstances of each case, and it is not the Department's view that a boundary through a building can never be satisfactorily depicted at 1/2500 scale, although this would be rare. Nevertheless, caution needs to be exercised both in deciding whether such a plan is acceptable for the purpose of identifying the land conveyed, and whether a 1/2500 plan based on the OS map (without enlargements etc.) is adequate as the basis of a registered Title Plan.

There are a variety of instances when it may be necessary to consider plotting through buildings shown on the Ordnance Map and it is essential, before making a decision, that the quality, accuracy and source of the DIR plan is carefully considered together with all available survey and map information. It is stressed that the practice of plotting through buildings without a survey is one which should be exercised with great caution, and inexperienced staff should not hesitate to consult a plans technical referee if they harbour any doubts as to the wisdom of such a course of action in any particular case.

Consideration of the mapping of an application involving the plotting of a boundary which appears to pass through a building should be approached in a logical progression in which it is assumed that there are no other mapping points arising which would require a survey.

12.4.4 Double Features

Features which are depicted as two (or more) firm lines running approximately parallel to each other and only a small distance apart are sometime encountered on the Ordnance Map. The nature of the physical boundaries which are presented by the double lines are not usually apparent from the map. If they are to form a boundary of registered land it will be necessary for plans staff to make a reasoned interpretation of the map so that the red edging may follow the correct line on the Title Plan.

Where doubts arise concerning double features it will usually be necessary for plans staff to inspect record sheets and any survey reports which may be available, as well as the deeds and plans accompanying the particular application being dealt with, and of neighbouring registrations.

The quality and accuracy of deeds and their plans vary considerably and each application must be considered individually taking into account all available information. Where, despite a careful investigation some real doubt remains as to whether a double feature should be included in a First Registration, it would be prudent to exclude it. This does not mean, however, that exclusion of double features should become the standard practice in all cases, because if this were so the result would be the creation of numerous unregistered strips of land lying between registered titles. These would almost certainly lead to difficulty for both the registered proprietors and the Agency in the future. Where conclusive evidence of title has been produced for the land lying between double features, the proper course of action is to complete the First Registration to include it, providing that there is no indication that it is occupied as part of the adjoining property.

It is often found that the external boundaries of building estates are formed by double features on the Ordnance Map. They may represent a hedge and ditch, or perhaps a new fence constructed by the developer immediately within an old field hedge. There are of course a number of other combinations of features which may be depicted as double features on the Ordnance Map.

There are no hard and fast rules to be applied on Transfers of Part which abut such features. The correct course of action in a particular case can only be decided after a careful investigation has been made into the nature of the boundary. Up-to-date survey information is normally essential in these cases, although the transfer itself may provide a clear indication of the intention of the parties.

If the double feature is clearly excluded from the transfer, it should not be included in the new Title Plan. In such cases the problem can be to decide the action to take on a vendor's Title Plan.

There should be no 'automatic' greening out of the double feature from the old Title Plan. Whilst greening out to the old title boundary may in some instances be the proper course of action, it must only be done after very careful consideration. The whole length of the double feature should be considered on the first application which is affected, if a castellated pattern of 'greenouts' is to be avoided, i.e. where the double feature is alternately greened out or left in the old title at the back of adjoining plots as they are transferred. Where such a problem occurs, it should be referred with all relevant Title Plans and papers to the relevant senior Plans Officer for investigation and instructions.

12.4.5 Boundary Declaration

A boundary declaration in this context is a statement contained in a deed giving a precise description of the position of the legal boundary line in relation to adjoining physical features, or the ownership of a physical boundary.

Where the boundary declaration states that the legal boundary line lies a fixed distance from a specified boundary feature (and the vendor retains the adjoining land), consideration needs to be given as to whether it is practicable and desirable to plot the line of the boundary in relation to the specified physical feature, and to indicate the line of the position of the title boundary both on the Title Plan and the Public Index Map.

It is probably only practicable and desirable to adopt this approach if the stated distance is of a plottable width on the Ordnance Survey Map (say 1 metre or more at 1/1250 scale). In this respect, it will usually be necessary to have a survey or inspection of the boundary, if it appears necessary to plot the boundary as described. If an inspection reveals that the physical boundary is not of the same nature as described in the declaration (e.g. it is a wall, and not a hedge or fence as stated), no attempt should be made to plot the title boundary at the specified distance from the feature now in existence. Where the inspection confirms the existence, nature and position of the physical boundary and it meets the criteria stated above, the title boundary should be plotted the stated distance from the firm feature shown on the OS map, and appropriate dimensions added. As an alternative to dimensions, the boundary may be annotated to show that it is at a specified distance from the physical feature.

12.5 Metrication: Units of Measurement Directive 1989 (89/617/EEC)

12.5.1 Introduction

Since the 1 January 1995 the Agency has been required to comply with the Units of Measurement Directive (only became law on 1 October 1995) by using metric units as the sole or primary indicators of measurement in all new measurements made or adopted by the Agency as indicators of extent on Title Plans or in connection with descriptions of subjects.

Under the Directive it is permissible for existing products (created prior to the Directive) to continue on a non-metric basis and this means that existing non-metric measurements in title sheets need not be converted to metric unless there is a subsequent change of measurement or some additional measurement. The requirement to convert to metric does not apply to Burdens Section entries, which reflect non-metric measurements, contained in existing recorded Sasine writs. Any dimensions contained in an explanatory footnote created after 1 January 1995 should be expressed in metric units.

12.5.2 Application of Directive

Title Plans

Units of measurement added by the Agency to (1) new title plans (2) updates of existing title plans and (3) supplementary plans prepared in-house should be metric.

Where a supplementary plan is stated to be a copy of a deed plan, non-metric dimensions and measurements in the deed plan do not require conversion.

Property Section

Only metric units are to be used where a dimension is being noted in the A Property Section of a new title sheet, whether in a description or in a note. Single point or District Council boundary notes should always be metric, non-metric dimensions in prior deeds should be converted to metric.

When a dealing or update of a title sheet in which dimensions are used in the property section occurs, it is not necessary to convert to metric unless some change to the dimensions is involved. Likewise, updated office copies need not contain metric conversions unless there has been a change.

Burdens Section

Preambles should reflect the area measurement in the form in which it appears in the deed upon which the entry is based.

Footnotes which give additional information should use metric measurements with, where appropriate, imperial measurements as supplementary indicators.

Definition of Authorised Units of Measurement.

Authorised units of measurement consist of metric units, eg. Hectare, metre, centimetre and (for Land Registration purposes only) the acre. Imperial units of measurement could be used as supplementary indicators to metric units, (i.e. a metric measurement could be supplemented or supported by an imperial measurement provided the metric measurement is expressed first and the imperial measurement is not more prominent than the metric measurement), up until 31 December 1999.

The Acre

The acre can continue in use without limit of time in descriptions of land for conveyancing purposes. Parts of an acre must however be expressed in decimal parts of an acre. Hence imperial measurements such as the yard and foot cannot be used in conjunction with acres. Note, however that the Keeper is statutorily obliged to convert the measurement of any property which extends to 4.942 Acres (2Ha) or more into the metric equivalent in Hectares.

12.5.3 Policy and practice on rejection of deeds

The Keeper’s general policy as published in the August 1995 issue of the Journal of the Law Society of Scotalnd is that as of 1 October 1995 he will reject any deed containing a new conveyancing description (which includes supporting plans) unless it is expressed in authorised units of measurement. A guidance leaflet on metrication supported this article. The leaflet warns that the Keeper cannot guarantee to accept deeds, which use unauthorised units in a new description, but it stops short of saying that such deeds can never be accepted.

The reason for this is that although unauthorised units have not been legal from 1 October 1995, a description may be valid in common law even without those measurements. For example a description of a new property might contain a postal address and full bounding description in which the extents of the boundaries are expressed in imperial units. Insofar as the description uses unauthorised units of measurement it can be seen to be ineffectual, but the postal address alone constitutes a sufficient description at common law.

Sasine Policy

Sasine Memo 51 advised that staff must look at the description as a whole to see if it can stand without the unauthorised units of measurement. Even if it could the presenting agent should have been contacted and encouraged to consider re-engrossment with all measurements being expressed in authorised units because of the risk of legal challenge on the grounds of inconsistency with the Directive. If the agent insisted on recording the deed as it stood then staff where advised that registration could proceed subject to the search sheet being noted accordingly.

In view of this policy Plans settlers may be faced with Applications for registration the extent for which is based upon a Sasine recorded deed which whilst recorded after the Directive came into effect still relies on unauthorised measurements to define the extent. In these circumstances a referral should be made to Registration Services or Senior Legal Group for advise.

Land Register Policy

In the Land Register, an application based on a deed inducing registration which contains unauthorised units of measurement may retain its registration date and be stood over to give the agent time to remedy the deficiency. Registration should not proceed on the basis of a plan or description in a deed inducing registration, which uses unauthorised units of measurements as the sole or main unit of measurement. These applications must be stood over awaiting amendment to conform to the Directive.

As stated above any applications based upon the extent in a deed recorded after 1 October 1995 in the sasine register which uses unauthorised measurements should be referred to Registration Services or Senior Legal Group for advise.

Conversion

The yard. Foot and inch are statutorily defined as being 0.9144 metre, 0.3048 metre and 0.0254 metre respectively. Accordingly, any existing imperial measurement can easily be converted to metric units. Alternatively, the extent can be remeasured.