The Ordnance Survey (OS) MasterMap is the base mapping used for the Registers of Scotland cadastral map
which is supplied in three scales – 1:1250, 1:2500 and 1:10,000. No evidence was given on this from an Ordnance Survey expert.
OS mapping is not of sufficient precision or accuracy to be used for the purpose of precise delineation of boundaries and there are inherent restrictions and limitations to scaling and accuracy. OS surveyors do not attempt to define legal boundaries and the mapping shows only physical features, mapped to an accuracy that is commensurate with the relevant scale but that does not dictate legal boundaries.
The Ordnance Survey Map shows physical features. It does not show legal boundaries.
The Ordnance Survey Map which is used as the base map for Cadastral Map as per Section 11(5) of the 2012 Act is updated from time to time to show changes on the ground. Those changes can sometimes be the addition or removal of features.
The extent of the legal Title is as set out in the deeds inducing first registration. While additional features on the ground may be picked up from time to time by the Ordnance Surveyors, the extent of a Title may well remain unchanged.
When registration of title was introduced, the profession and the public were offered a vision of certainty regarding property boundaries.
Instead of the rituals of examining boundary descriptions and plans to decipher the extent of property being purchased, conveyancers would have the simple task of checking the land certificate and Ordnance Survey plan with it to establish a property’s boundaries. Any problem would be covered by the Keeper’s indemnity and could be rectified under the legislation.
That day may yet come, but in the short term the consensus of practitioners seems to be that first registrations have resulted in more boundary problems rather than fewer. Boundary problems lead invariably to boundary disputes and, as we all know, such disputes provide a rich vein of material for reality TV shows but do nothing for the blood pressure of practitioners or their clients.
Avoiding such disputes and resolving them effectively when they arise could save conveyancers sleepless nights.
Whyte Fraser & Co Solicitors
Causes of boundary disputes
Boundary disputes all arise either from a lack of clarity, or ambiguity, in the delineation of boundaries (a drafting or plan preparation problem) – which can admittedly be complicated by subsequent variation of boundaries – or from a mismatch between the expectations of the client and the reality of the boundaries (a title inspection or a communication problem).
There are of course some common examples of situations in which boundary problems arise:
- A sasine title - either with no plan or with a badly prepared plan or conflicting plans and no clarity in break-off descriptions.
- The new housing estate where boundary fences do not correspond exactly to the title plans.
- The property which has been altered or extended without due reference to the boundaries.
- The existence of ransom strips retained by developers on the boundaries of sites.
- The problem of occupation of publicly owned land.
Whyte Fraser & Co Solicitors
Workarounds
The first point to note is that the land registration system does provide several important tools in this regard.
The P16 report – as a matter of practice, these should always be commissioned in the case of a first registration.
The land certificate – for registered titles, it is, in theory at least, not possible to purchase land where the occupational extent differs from the boundaries delineated in the land certificate.
Rectification of the register under section 9 of the 1979 Act.
The Keeper’s indemnity under section 12 of the 1979 Act – provides indemnification to the party sustaining a loss where rectification of the register is or possibly is not granted.
Section 19 agreements – neighbouring proprietors can agree a common boundary and register an agreed plan.Rectification of the register under section 9 of the 1979 Act.
How such problems might be resolved.
Is there a simple solution? Will the Keeper rectify the register or can a section 19 agreement as to a common boundary be negotiated?
Can a deal be done with the other party or with a third party if appropriate?
Can title indemnity insurance assist?
If a sale has fallen through, can the property be remarketed immediately?
