www.doradelaw.com
WATERSIDE PROPERTY
ALL YOU NEED TO KNOW ABOUT WET BOUNDARIES
A note drafted by Delia Kempley, December 2012
Delivering Legal Solutions for Marine Business
This note looks at the rules relating to boundaries with water in England and Wales.
It is relevant to all landowners and managers of properties that have a river, marina,
canal, estuary or sea frontage. The physical boundary is not necessarily the same as
the legal boundary, and this note examines how the two relate.
The background of land ownership
Title Deeds and the Land Registry
Plans and descriptions can be vague and sometimes conflict,
and as disputes arose between landowners over the years,
a series of “boundary rules” were established by the courts.
These rules contain presumptions about ownership – very strong
presumptions, some of which can be almost impossible to rebut
without express words. To understand boundaries, you have to
know boundary rules. The rules are contained in case law, known
in England as “common law”.
[NB: If land is unregistered, then similar rules apply, but finding
answers is more difficult. Unregistered land is outside the scope of
this article. Land will be unregistered if there have been no dealings
with it over the last 90 years, and the owner has not undertaken a
“voluntary registration”.]
Historically, the legal ownership of land has been defined by
reference to Title Deeds, a bundle of documents that evidence
the ownership of the land over a period of years, showing transfers
(or conveyances) of land from one person to another. The title
deeds could describe the land by reference to words, e.g. “the
land on the east side of the River Dart”, or by reference to a plan,
e.g. “the land shown edged red on the plan”, or sometimes, by
reference to both.
Boundaries with water are both defined and undefined, in the
sense that you can see the physical boundary, but that physical
boundary feature itself will almost inevitably move over time.
Land owners cannot therefore just look at the title deeds and the
boundary with the water feature to understand the ownership
issues. In this note I have tried to set out as clearly as possible the
mechanism that you can use to understand a boundary, and alert
you to relevant boundary rules and how and when they apply.
www.doradelaw.com
75% of all land in England and Wales is registered at “The Land
Registry” (previously known as “H.M. Land Registry”). This is an
organisation set up by statute in 1925 to document land ownership,
so that people did not have to rely on finding and interpreting title
deeds. Once registered, land remains registered and retains the
same title number, unless the land in the title is split. This note
assumes that the land in question is registered with the land registry
(i.e. is “registered”).
When a property is first registered at the Land Registry it is given a
title number (e.g. LN432256) and a title plan is drawn up showing
the extent of the property on an Ordnance Survey map. In the past
the Land Registry would then issue the landowner with a “Land
Certificate” (or if there was a mortgage the mortgagee would get a
“Charge Certificate” and the land owner would be given a copy of
the Charge Certificate for his information). Proof of ownership used
to be by reference to these paper Certificates, but that has now
changed. Today, the register is electronic, and proof of ownership
is now evidenced by obtaining an “official copy” of the title register
and plan online. Anyone can apply for this online through the Land
Registry website – the fee is £4 for each title and £4 for each plan.
Anyone can apply for
this online through
the Land Registry
website – the fee is £4
for each title and £4
for each plan.
TERMINOLOGY
Confusingly for map readers and sailors, when looking at legal boundaries, we define the
boundary by reference to mean high water, which is the high water mark on an average tide
between springs and neaps.
The foreshore is defined as being the land between mean high water and mean low water, and
the fundus is defined as being the land below mean low water.
The Land Registry no longer
holds original title deeds;
in many cases they were
destroyed. Similarly, Land and
Charge Certificates have no
legal status, and may have
been destroyed. This is, in
my view, a shame, as I like
to understand the history
of a parcel of land and it is
not always evident from the
electronic register.
The General
boundaries Rule
Title plans previously known
as filed plans are based on
large scale OS maps, with
the property in a particular
title usually shown edged red.
Most people are surprised to
learn that the exact line of the
legal boundary on a title plan
is usually not conclusive as
to ownership, as almost all
Land Registry title plans are
prepared under what is referred
to as the “general boundaries
rule”.
This rule means that the red
line boundary is a “general
boundary only” unless it is
explicitly shown as having been
determined or “fixed” under
the relevant provisions of the
Land Registration Act (section
60 of the LRA 2002). There is
a lengthy procedure for fixing
boundaries, involving site visits
and meetings between all
interested parties. The process
is costly and not often used.
Legal presumptions on
wet boundaries
There are a number of tools
that may help to establish
the legal boundary where the
boundary line is not stated
as being “fixed” in the title
register. These are however
only presumptions and can be
rebutted by evidence which
can be admitted in the case of
a dispute. I have set out below
those boundary rules that relate
to tidal and non-tidal waters.
Presumption 1- Tidal waters
Where land abuts tidal waters, there
is a presumption that the legal
boundary of the land extends only to the top of
the foreshore, i.e. the land above mean high
water. A landowner whose property abuts tidal
waters does not own or have private rights
over the foreshore itself or the fundus, both of
which are presumed to be owned by the Crown
Estate or the Duchy. (Being tidal, areas below
mean high water are subject to the public’s
medieval rights of navigation, still relevant
today.)
If there is doubt about ownership of the
adjoining foreshore or fundus, it is worth
enquiring of the Crown Estate (or Duchy) as
they should hold historical records about who
the land has been transferred to. Alternatively a
search could be made at the Land Registry as
the transferred land may have been registered.
Note that as mean high water is the average
high tide between springs and neaps, at certain
times of each month part of the land within the
legal boundary will be covered by the tide.
Furthermore, the physical boundary with tidal
waters may move gradually over time, as the
mean high water mark moves naturally over
the years. The legal boundary is treated as
moving with the physical boundary unless the
movement is “sudden and substantial” and/
or is as a result of human intervention (such as
the placing of stones or structures on the sea
or river bed). In these cases, the legal boundary
does not move with the physical boundary, and
any use of the resulting foreshore is technically
trespass against the Crown (or Duchy).
Finally, If a waterway would be tidal but is not
because of human intervention, such as the
building of a lock, the waterway is treated as
though it were tidal for legal purposes.
Delivering Legal Solutions for Marine Business
Presumption 2 - Non-tidal rivers and streams
Where a property has a boundary with a natural non-tidal
river or stream, (i.e. not a canal or artificial waterway)
the title plan is likely to show the property edged in red, with the
boundary at the edge of the river, and not including any part of it.
However, there is a presumption not often mentioned in the title
register, that the legal boundary of the property is actually the
centre line of the river, and that the landowner owns the riverbed
up to that point. This means that the landowner has the ownership
of and responsibility for the river banks abutting his property.
As the physical course of the river changes naturally over time the
legal ownership is presumed to change with it, unless (as with tidal
waters) the change is “sudden and substantial” and/or as a result
of human intervention. Some landowners find loss of land hard
to accept. If a water frontage is naturally eroded by the course
of the river over time, the adjoining landowner has to accept the
consequent change to the physical and legal boundary, and
cannot legally artificially shore
the banks of the river up to
The Environment
claim the land back.
Don’t forget, it is only
a presumption that the
landowner owns the riverbed
up to the median line and the
presumption can be rebutted. If
it has been rebutted in the past
the Land Registry will usually
note the exclusion in the title,
but not always. If there is any
doubt, it may be necessary to
resolve a dispute by looking
Agency published a
useful guide called
“Living on the Edge”
in August 2012,
this contains a
useful guide to the
responsibilities of
riverside ownership
back at historic records, and in some cases the title deeds, if they
still exist.
The Environment Agency published a useful guide called
“Living on the Edge” in August 2012, this contains a guide to
the responsibilities of riverside ownership, and in particular the
agencies which have to be consulted if any work is proposed that
may affect the river and it’s banks.
Presumption 3 - Canals
Where a property has a boundary with an artificial waterway,
such as a canal, the position is slightly different depending
on how and when the canal was built. Briefly, if the canal was built
along the line of an existing river, and in effect replaced the river,
then there is a legal presumption that it is still a river, and the land
ownership is presumed to extend to the middle of it. However this
is unlikely as canals were often constructed alongside railways
during the industrial revolution, when the land was compulsorily
purchased from land owners. As a result, canals are nearly always
owned by the British Waterways Board or another statutory authority
that has responsibility for its maintenance. In these cases the legal
ownership does not extend over the canal.
NB: There is arguably no right of navigation over artificial
waterways, rights of way are by the permission of the owner of the
canal.
Presumption 4 - Lakes
There is a rebuttable presumption that where a lake is
entirely within the boundaries of a single ownership, the
same person will also own the bed of the lake.
There is no presumption where the lake is not entirely within the
boundaries of a single ownership.
Conclusion
I love the Land Registry, and everything it has done to clarify land ownership and property interests. However,
title plans are misleading because they look to the average person as definitive, but they do not always reflect the
legal boundary, particularly where the property adjoins water. The Land Registry has done its best to draw people’s
attention to this by producing a useful series of Practice Guides, aimed at both professionals and non-professionals
alike, and I have provided a link to these in the section below.
WEB LINK 01
WEB LINK 02
Environment Agency booklet –
Living on the Edge
Land Registry Booklet
http://publications.environment-agency.gov.uk/
PDF/FLHO0912BWUP-E-E.pdf
Dorade Law
1 Broadstone House, Dartmouth, Devon, TQ6 9NR
T: +44 (0)1803 835187, F: +44 (0)207 900 6972
E: [email protected]
www.doradelaw.com
http://www.landregistry.gov.uk/professional/
guides/practice-guide-40s3
The information in this note are confidential and may be legally privileged and protected by law.
The intended recipient only is authorised to access this note. If you are not the intended recipient,
please notify the sender as soon as possible and delete any copies. Unauthorised use, dissemination,
distribution, publication or copying of this communication is prohibited. We operate anti-virus
software but you should carry out your own virus checks before opening any attachment. Doradelaw
accepts no liability for any loss or damage which may be caused by software viruses. Doradelaw is
the trading name of Dorade Limited, a company authorised and regulated by the Solicitors Regulation
Authority (No. 523020) and registered in England and Wales (No. 6595987). Director NJ Horton.
Registered Office: 1 Broadstone House, Dartmouth, Devon TQ6 9NR.
Delivering Legal Solutions for Marine Business