12. BOUNDARIES AND REGISTRATION OF TITLE
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:
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.
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.
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.
An island arising in the sea or a tidal river will belong to the Crown.
More generally where land is described as bounded by the sea, the sea beach or the sea shore or a tidal river the question is whether the foreshore (between the high and low water marks at spring tides) is included or not.
In conveyances by subjects superiors, i.e. anybody other than the Crown, any sea boundary will normally include any rights the disponer may have to the foreshore. It was doubted by two judges in the case of Magistrates of Musselburgh v Musselburgh Real Estate Company 1904 7F 308 if a sea beach boundary carried the foreshore in the same way as a sea boundary but on the whole the general rule seems to be that any reference to the sea, sea beach, shore or tidal-rivers as a boundary carries any rights the disponer may have in the foreshore.
In Crown Grants however the foreshore is presumed not to be included; it must be expressed unless in a Barony Title which is a good title on which to prescribe a right to the foreshore.
Even if somebody owns the foreshore, ownership is always subject to public rights which the Crown holds as regalia majora for the general public.
In Orkney and Shetland, udal law applies except where the landward title derives from a Crown grant. Under udal law, where the title is stated to include foreshore, the title extends to ‘the lowest ebb’, which may be a lower point than the mean low water springs. See Section. 220.127.116.11A for instructions on mapping such titles.
As the question of ownership of foreshore presents special problems any case where a boundary is stated to be the sea, sea beach, sea shore or a tidal river should be dealt with by EBM procedure.
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:
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.
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:
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
All survey and map production processes inevitably produce error at some stage, and the deed plans which we examine and the Ordnance Survey maps which we use are subject to these limitations to varying degrees. All maps and plans are in any case deliberate generalisations of reality and can never be in exact conformity to truth. Whilst it is not possible to provide guidance on the accuracy or method of portrayal of detail shown on plans attached to deeds, which come from a wide variety of sources, one should be aware that some degree of inaccuracy of generalisation in portrayal of physical features will always exist, however insignificant these factors may sometimes be.
In the context of making decisions concerning boundaries, when comparing deed plans with Ordnance Map detail, the underlying assumption in the absence of any evidence to the contrary, is that the Ordnance Map correctly shows the position of physical features located on the ground at the time of the survey. For the bulk of plans work involving boundary decision making, this principle holds true, and underpins our whole system of mapping for registration purposes. Nevertheless, it is essential to have some knowledge of the limitations in accuracy of the Ordnance Map, and of the rules which govern the representation of detail shown thereon. Only then is a plans officer in a position to distinguish discrepancies of real significance (and on which survey or requisitions may need to be raised) from inaccuracies or generalisations which may be accepted as a characteristic of the particular Ordnance Map publication.
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.
The above statements are not intended to shake one's faith in the accuracy of Ordnance Maps, but are intended to promote a proper regard to the possibility of some inaccuracy, which in turn may lead to a more rational approach to making decisions relating to boundaries.
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:
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.
12.4 BOUNDARY PROBLEMS
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.
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:
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:
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.
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)
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
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.
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.
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 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 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.
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.
click icon above to go back to plans manual homepage