Few things sour a good neighbourly relationship faster than a fence in the wrong place. In East Lothian, where garden ground is often bounded by old stone dykes and where farm steadings have been divided and sold on, a strip two feet wide can matter enormously to a driveway or a proposed extension. Questions about access are just as important. Who may use that lane, and can the neighbour lock the gate?

The two issues frequently come together, but in Scots law they are quite separate. Here is how a solicitor establishes where a true boundary lies, and what can be done once it has been.

Where does a boundary actually come from?

Not from the fence. A boundary is a legal line created by the words and plans in the title deeds. The features on the ground are evidence of where the parties once believed that line ran, and no more than that.

You can read more about title deeds, and the two Registers discussed below, in our article Buying a House: Examination of Title

Older titles recorded in the General Register of Sasines describe boundaries in words, sometimes with measurements, sometimes by reference to a plan of variable quality. 

Titles in the Land Register are mapped onto the cadastral map, which is built on the Ordnance Survey base map. That base map has published accuracy tolerances, and the Land Registration etc. (Scotland) Act 2012 provides that the cadastral map is not inaccurate merely because it fails to depict something correctly as a result of an inexactness in the base map. 

The title plan is an extract of the cadastral map and forms part of the title deeds. It is an excellent guide to any boundaries, but a line on a map has no width and a wall does. Where the precise position matters, a textual note may have been added, for example that the boundary runs down the mid-point of a wall.

Examining titles properly means reading the description, the plan and the earlier conveyances together, and working out which prevails where they conflict. That exercise alone settles a good number of disputes before anybody needs to fall out.

What if the fence has been in the wrong place for years?

Possession matters in Scotland. Under section 1 of the Prescription and Limitation (Scotland) Act 1973, the real right becomes exempt from challenge where land has been possessed openly, peaceably and without judicial interruption for ten years, and that possession follows on a recorded or registered deed which is ‘habile’, meaning the deed is able, in its terms, of including the disputed ground.

The word to watch is habile (capable in its terms of including the disputed ground). If your neighbour's title describes their plot in terms that are worded so tightly that the boundary cannot be read as including the disputed strip, ten years of cutting the grass will not transfer ownership of it. If the title is more loosely drawn, it may well do so. That is a question of construing the deeds, which is why "we have used it for twenty years" is the start of a conversation rather than the end of one.

Encroachment: what can a court actually order?

Where someone else's structure sits on your ground, that is encroachment, and the general rule is that an owner is entitled to have it removed. A solicitor would typically seek 'declarator' -  a formal finding of where the boundary lies and who owns the ground - together with an 'interdict', which is a court order to prevent further intrusion and an order for removal.

There is an important exception. Following the case of Anderson v Brattisanni, the court has an equitable power to refuse removal, but only where the encroachment was made in good faith, is inconsiderable and does not materially impair the owner's enjoyment of the property, and where removal would cause the encroacher a loss wholly disproportionate to the benefit gained by the owner. The power is used sparingly. For example, in McLellan v J & D Pierce (Contracts) Ltd, a business that built over a boundary after being told the ground was not for sale, and after a solicitor's letter, could not rely on good faith, and removal was ordered.

The lesson runs both ways. If you think a neighbour is encroaching over your boundary, say so in writing and say so early. If you are the one planning building works, check the line before the foundations go in.

Rights of access: three different rights, routinely confused

Clients tend to use "right of way" as a catch all term. Scots law recognises at least three distinct rights, each with its own tests and its own remedies. Treating them as interchangeable is one of the commonest and most expensive mistakes in access disputes, because the remedy has to match the right.

1. A servitude right of access is a private right benefiting one property over another. It can be created by express grant, and since the Title Conditions (Scotland) Act 2003 a servitude created in a title deed must be registered against both the benefited and the burdened property. It can also arise by prescription, through twenty years of open, peaceable possession without judicial interruption under section 3 of the 1973 Act. The right is limited by its terms: a servitude for pedestrian access does not quietly become a vehicular one simply because a car would be more convenient.
2. A public right of way is different. It runs from one public place to another by a more or less defined route, is established by twenty years of use by the public and is a right to cross land rather than to be on it. ScotWays maintains a national catalogue of such routes.
3. Statutory access rights under the Land Reform (Scotland) Act 2003 are different again. They give the public a right of responsible access over most land, but not over ground where privacy is reasonably required, which is why they seldom assist in a garden dispute. Where access rights are in dispute, the sheriff can be asked to declare whether they exist over particular land, and the council has enforcement powers where a landowner obstructs them

Can I go onto my neighbour's land for maintenance access?

Usually not, unless your title says you can. The Access to Neighbouring Land Act 1992, which allows an owner in England and Wales to apply to the court for an access order to carry out basic preservation works, does not extend to Scotland. 

Owners in a tenement have a statutory right of access for maintenance under the Tenements (Scotland) Act 2004, but the owner of a semi-detached house with guttering overhanging next door has no equivalent. The answer lies either in a right written into the title or in a negotiated licence, and negotiating one is far cheaper than litigating about it.

Nor is any of this academic when you sell. The Property Questionnaire in the Home Report asks whether there is a shared responsibility for the cost of a boundary or a shared drive, and whether you have a right to walk over a neighbour's property, for example to maintain a boundary. Those questions catch a lot of people out.

Hedges sit under a separate regime. The High Hedges (Scotland) Act 2013 allows a local authority to serve a high hedge notice where a hedge of two or more trees or shrubs rises above two metres and forms a barrier to light, provided you have first made real attempts to settle matters with your neighbour. Overhanging branches may generally be cut back to the boundary line but no further, and you cannot enter a neighbour's ground to do it without permission.

How a solicitor resolves it in practice

The work tends to run in a set order: 

• Examine the titles to both properties. 
• Obtain historic Ordnance Survey mapping and aerial photography, and where the stakes justify it a report from a chartered land surveyor. 
• Establish the possession history. 
• Then look for the cheapest durable answer.

Very often that answer is a boundary agreement, or an exchange of dispositions, registered so that the line is fixed for good and troubles neither family again. 

Where the Land Register itself is wrong, the Keeper (the official responsible for managing and maintaining the Land Register and other public property registers in Scotland) may be asked to correct a manifest inaccuracy, and the Lands Tribunal for Scotland can determine questions of accuracy. 

Mediation settles many disputes that would otherwise become ruinous. Court action, by way of declarator and interdict in the Sheriff Court, is available and is sometimes the only realistic route, but it is rarely proportionate for a narrow strip of ground. An unresolved dispute is also something you will have to deal with honestly when you come to sell, so early advice is almost always the cheaper course.

How Paris Steele Can Help

Our Residential Property and Commercial Property teams examine titles every working day, and our combined solicitor and estate agency offering means we see boundary and access problems from both the legal and the practical side. At Paris Steele, we can review your deeds and tell you honestly what they do and do not establish, negotiate with your neighbour's solicitor, prepare and register a boundary agreement or a deed of servitude.

If a boundary or an access route is causing you concern, or if you are buying and something on the ground does not match the plan, speak to us before matters escalate. Call our North Berwick office on 01620 892138 or our Dunbar office on 01368 862746 or contact us through the website.

This article is provided for general information purposes only and is not intended to constitute legal advice. The information contained in this article is accurate to the best of our knowledge as at the date of publication. As laws, regulations, guidance, and other relevant information may change over time, the content of this article may no longer reflect the current position.

The information contained herein may not apply to your specific circumstances and should not be relied upon as a substitute for professional legal advice.

If you require advice about your own situation, we recommend that you seek advice from a qualified solicitor. If you would like to discuss your circumstances or find out how we may be able to assist, please do not hesitate to contact our team for advice tailored to your individual needs.