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Where is the Boundary to a Property?

This seems like an almost rhetorical question as it would appear to be self-evident as to where the boundary to a property lies by a mere visual inspection. While a visual inspection of the property may indeed give a good indication as to where the boundary is, in reality, things are considerably more complex. In this article, we look to tease out the various issues that emerge in relation to property boundaries in Ireland.

Property Registration Authority of Ireland

The Property Registration Authority of Ireland (PRA) is the Irish state agency charged with maintaining the national database of land ownership (Land Registry) as well as recording property transactions in the country. The PRA makes their land database available to the public via an interactive map at www.landdirect.ie

Any title registered with the PRA is guaranteed by the Irish State as all necessary documentation is verified when registering land with the PRA. One would assume that, as in other countries, checking the boundaries on a property would be as simple as referring to the Land Direct website. Alas, this is not the case.

In the screenshot above, you will note that while many properties do have a red border (to depict freehold title) and green borders (to depict leasehold title), some properties have no border at all. These properties’ titles have not as yet been registered with the PRA and only will be when sold; at that point a first registration will be required and a land registry compliant map must be submitted as part of the first registration. The properties that have been registered are assigned a folio number; this is visible in the red box in the above screenshot. This is a unique number to identify this property. An estimate as to the size of the plot (.17 hectares) is also there albeit no commitment is given as to the accuracy of this estimate.

While the PRA does ensure that any title registered with it carries an Irish Government backed guarantee, the authority does not take responsibility for precisely specifying the exact location of a property’s boundary. Obviously, the boundary as shown on the Land Registry at LandDirect.ie is very often the same as the actual legal boundary but this is not always the case. In short, one cannot rely solely on the PRA’s Land Registry website to confirm the location of a boundary.

What About Ordnance Survey Ireland?

Ordnance Survey Ireland is the state agency charged with mapping Ireland. Again, while it might seem logical that this would be a definitive source of information as to property boundaries, it isn’t. OSI maps the physical topography of the country and does not show legal boundaries on its maps.

Deeds and Title Map

The title deeds and associated deed map of your property are the primary and definitive source as to the precise location of your property’s boundary. When a property is sold, the property is described in the title deeds and a map is also included (the deed map) to lend further clarity. However, some of these documents will often be decades old and of varying quality. A thick red line drawn on a map raises the obvious question, who owns the land under the red line? Modern maps denote boundaries with thin red lines and further reference coordinates in the deeds to avoid any confusion. When ambiguity and disputes do arise, the Irish courts have clarified the sources of data on which it will rely to come to a decision. These are:

• Primary Evidence: Deeds and Deed Maps

  With modern maps, the room for ambiguity is very limited owing to sophisticated, accurate mapping techniques and the use of coordinates to confirm the physical location of boundaries. However, many title deeds are old and originate from a time with far more rudimentary techniques that make the deed maps open to interpretation and so dispute.

• Secondary Evidence: Physical Boundaries

  This of course is also not an exact science as hedges can become more mature and occupy more space over time. Workers may be less than meticulous when placing post and rail fencing in place. While a physical boundary certainly is an indication as to the location of the actual legal boundary, they are often not one and the same.

• Tertiary Evidence: Land Registry

  The PRA’s Land Registry does not make any claims to accurately define boundaries. However, the courts will certainly not disregard Land Registry demarcated boundaries when adjudicating on a dispute.

While the above priority does exist, often data from all three sources is considered in the round when coming to a determination as to the precise location of a boundary.

What’s a Party Wall / Party Fence?

A party wall is a wall common to two or more land owners. While a vertical wall such as one found in a garden comes to mind, a horizontal floor / ceiling may also be a party structure dividing a property built over another one. The wall separating two semi-detached or terraced properties is a party wall. A garden boundary wall is a party wall.

A more detailed definition is given the Land and Conveyancing Law Reform Act 2009:

any wall, arch, ceiling, floor, partition, ditch, fence, hedge, shrub, tree, or other structure that horizontally, vertically or in any other way:

• Divides adjoining (which is defined to include adjacent) and separately owned buildings, or
• Is situated at or on or so close to the boundary line between adjoining and separately owned buildings, or between such buildings and unbuilt-on lands, that it is impossible or not reasonably practical to carry out works to the structure without access to the adjoining building or unbuilt-on land. It includes any such structure that is situated entirely in or on one of the adjoining buildings or unbuilt-on lands, or straddles the boundary line between adjoining buildings or between such buildings and unbuilt-on lands and is either co-owned by their respective owners or subject to some division of ownership between them.

Who Owns the Boundary Wall?

Outright Ownership:

This is where the boundary wall sits entirely within the boundary of one of the land owners. Were the adjoining owner to build on top of this wall, they would be encroaching.

Divided Ownership:

This is the most common ownership structure for boundary walls. Each party owns the half of the wall closest to their property and in theory can do whatever they wish with their half, including building up against it, so long as it doesn’t in any way compromise the adjoining owner’s half of the wall.

Divided Ownership with Mutual Rights of Support

This is similar to Divided Ownership but differs in that each owner has a cross easement on the other’s half of the boundary.

How Do I Know If I Own All the Boundary or Just My Half?

Most of the time, the boundary will be shared and you will own the half of the boundary wall in your property. However, an inspection of your title deeds and title map may (but may not) offer more clarity in this regard. Consultation with a chartered surveyor and/or your solicitor may help to shed further light on the matter.

What is Encroachment?

Encroachment occurs when one party adds a structure in another party’s property e.g. an extension that crosses the boundary into the neighbour’s property.

What Should I do if My Neighbour is Encroaching onto My Land?

Conflict is costly and stressful for both sides. Ideally matters can be amicably resolved through discussion. In the first instance, approaching your neighbour calmly outlining your concerns is a good first step. If they are amenable to cooperating to right the situation voluntarily, that will save both sides a lot of trouble and expense.

If not, then unfortunately legal avenues will need to be pursued but should only be done so as a last resort. Your solicitor will likely advise you to engage a surveyor to prepare a land registry compliant map. The surveyor will also mark out the physical legal boundary on the ground in order to demonstrate that the neighbour is indeed encroaching. Alas, the other side will likely carry out a similar exercise with the ultimate decision as to the boundary’s precise location being determined by the courts.

Easements, Rights of Way & Way Leaves

Easements

An easement is a right enjoyed by one property over an adjoining property. Note that the easement attaches to the property and not the owner i.e the owner can’t sell the easement separate to the property. An easement attaches to the land that benefits from the easement and is a burden against the adjoining land.

Rights of Way

The most common easement is a right of way; this is when one property owner is entitled to travel through another property to access his/her property. A car parking space in a multi-unit development is an example of an easement. The car owner has a right of way to drive over land that he/she doesn’t own and park his/her car in a parking space on land that again is not owned by the parker. The land in such an instance is owned by the OMC but the easements are granted to the unit owner by means of a long lease. The easement in such an instance is dependent on the unit owner complying with the terms of the lease granting it e.g. the payment of a management fee.

Way Leaves

A way leave is a form of easement whereby a property is entitled to run service pipes, cables etc through or under an adjoining property. Easements may be specifically described in title documents but may also be claimed through ongoing open usage. When an easement comes to be through usage, this is known as an easement by prescription.

In order for such an easement to be recognised, the person seeking the easement must get a court order confirming its existence. Such a court order will only be granted if the easement is deemed to have been in open usage for a continuous period of 12 years. The easement then must be registered with the PRA or Registry of Deeds as appropriate.

Adverse Possession (Squatters’ Rights)

Adverse possession is when a person claims that they should replace the current registered owners of the property by dint of their continuous occupation of the property for a period of no less than 12 years. A section 49 Application must be made to the PRA in order for the title to be passed to the new owner i.e. the adverse possessor so to speak. Given the gravity of what is being requested (the transfer of property to someone for no consideration) the documentation required is extensive. The full details on how to submit the application is available here.

Amongst a host of other factors, the applicant will need to prove that they have been in sole and exclusive occupation of the property without any action from the registered owner to enforce their rights, for a period of at least 12 years. The precise definition from the PRA website is as follows:

“A person may be deemed to be in adverse possession of property when he/she in sole exclusive occupation thereof without acknowledgement to the legal owner(s) and his occupation is inconsistent with the title of the true owner. Whether adverse possession can be deemed to exist depends on an examination of the facts and circumstances of each case.”

Importantly, a tenant renting a property for 12 years cannot claim adverse possession; as above the occupier must be there “without acknowledgement to the legal owner”.

Alas, as always, where a gain is made, the Revenue isn’t far away to ensure they get their share. To this end, no title will be registered under adverse possession unless a CA12 form confirming that the necessary Capital Acquisitions Tax will be discharged. The form is short and can be downloaded here.

Example of Adverse Possession

Imagine a situation in which a developer has bought a plot of land on which it builds a number of properties against the boundary. In order to avoid any potential for encroachment into the adjoining site, the developer installs the back garden fences slightly inside the legal boundary. Suppose that another developer buys the adjoining site and does the same thing. The land between the respective back walls of the homeowners is now effectively abandoned. If one or both homeowners extend their back gardens to recapture this wasted space, they could unwittingly encroach into their neighbour’s legal boundary. If this situation is allowed to persist for a period of 12 years, without objection by the encroached home owner, the encroacher can claim adverse possession, thereby legally extending the size of their garden. Should the property that has been encroached upon be sold to a new owner who contests this encroachment and demands their land back, a court would have a difficult time disentangling this dispute to the satisfaction of both parties.