Document Actions
Boundary disputes, right of prescription and adverse possession in Scotland
There is some question that our fences might not be in the correct place according to our title deeds. The fences have been in place for approx 17 years, having been put in place long before we purchased the property. We are the end terrace in a row of four houses and all gardens are the same length as ours and all have been in place for the same amount of time. It is a possibility that all four houses gardens are incorrectly fenced and encroach on to land belonging to a local farmer who has not contested the placement of the fences surrounding the gardens. No-one is 100% sure as the gardens have all been in place for a very long time. What I would like to know is are we able to keep our fences in place legally and how long can the piece of land be in use by someone before they have a legal claim to it in Scotland.
The laws of adverse possession which opens up the possibility of transfer of ownership after twelve years of occupancy in England and Wales do not apply in the same way in Scotland.
If you have been using a certain area of ground or land for a long time, provided your title deeds can be interpreted as including it you might be able to argue that you have ownership of it. This legal right is called 'prescription'.
However, because the Land Registration system is in force throughout Scotland, this is often hard to prove.
It's not enough that you've used the ground a couple of times (for example, for a barbecue or hanging your washing out). You must be able to show that there has been continued use of the area for a specific purpose. For example, if you always use a specific pathway to get to your house and you can't get to your front door any other way, you might be able to argue that you have a prescriptive right of access. There are complicated legal issues relating to rights arising by prescription and you should take legal advice on it.
Before doing this you should check your title deeds because they should tell you where the general boundaries of your property are. For example, they will tell you if you own any garden ground and they will usually give you measurements of the area you own.
If you have older title deeds that are recorded in the General Register of Sasines, the boundaries may be described in words or by referring to a plan in an older deed (this is called a 'description by reference'). Sometimes the words can be difficult to read or in technical legal language that is difficult to understand.
If you bought your house quite recently, or if it is a new property, it's more likely that it will be registered in the Land Register. This means that there will be a Land Certificate showing your property. All Land Certificates incorporate plans and should show the boundaries to your property clearly. If there are any joint or shared boundaries, these may also be shown on the plan and described clearly in the accompanying certificate.
If you don't know which system your deeds are registered under, you can contact Registers of Scotland who should be able to point you in the right direction.
If you have copies of your deeds but are still not sure what your boundaries are, take them to a solicitor who will be able to tell you what's what. Remember that solicitors are entitled to charge for their services so ask for an estimate of costs before any work is done on your behalf.
In the case of the fence, the physical and legal boundaries of your home are sometimes different from each other and this can cause confusion.
A physical boundary is what's actually on the ground and what you can see. For example, a physical boundary could be a fence, hedge or maybe a road or pathway.
A legal boundary is what is described in your title deeds or tenancy agreement. A legal boundary could be marked, or described, on the legal documents for your house. Legal boundaries will probably be based on measurements taken from the Ordnance Survey map. Legal boundaries tell you how much land you own or what your tenancy covers (this is called the 'extent' of your property) but they don't always match the physical boundaries and this can cause a lot of confusion. It often isn't clear whether the legal boundary of your property is in the middle, or at either side of, the physical boundary.
If you can't find a solution, or you can't come to an agreement with your neighbour, you could try mediation to help you sort out your differences. Mediation aims to help people work out their differences peacefully.
If you still can't reach a solution, you might consider instructing a solicitor to take further action on your behalf. Your solicitor might suggest getting a surveyor to clarify the boundaries. However, these professionals are entitled to charge fees for their expertise and advice. This could be very expensive so remember to ask for a quote before getting any work done. Don't assume that your neighbour will pay for any of the costs involved - find out if they are willing to contribute before you get any work done.
Important! Ask your own free questions... Questions are answered accurately at the time they are posted but the law can change or your circumstances may differ in an important but not obvious way from those mentioned. For fast, free and up-to-date personal legal advice direct to your inbox about your own individual case ask Law Answers your own free legal question.
