Right of way, easement or boundary problem: did your conveyancer miss it?

Rights over land and boundary lines are among the problems most likely to surface years after completion: a neighbour starts using a path across the garden, a builder finds a shared drain, or a fence goes up somewhere unexpected. This guide goes further than the overview of conveyancing negligence on what the conveyancer had to check, what you were expected to notice, and what sits alongside a negligence claim.

Easements: rights over your land, and rights it needs

An easement is a right that one property enjoys over another: a right of way, a right to run drains, pipes or cables, a right of light or support. A problem can run either way.

• A burden you did not know about: a neighbour or utility company has a right over your land — a path across the garden, a shared driveway, a drain under the spot you planned to build on.
• A benefit you assumed you had: the property depends on access, parking or drainage over someone else's land, with no legal right to it. A rear access a neighbour has allowed for years as a favour can be withdrawn. A property whose only route to the road crosses land it has no right over sits behind what is often called a ransom strip.

On registered land, rights the property benefits from usually appear in the property register, and rights others have over it in the charges register, sometimes only by reference to an old deed. Not every right is there. Under Schedule 3, paragraph 3 of the Land Registration Act 2002, a legal easement that is not on the register can still bind a buyer if the buyer actually knew about it, if it would have been obvious on a reasonably careful inspection of the land, or if it was used in the year before the purchase.

Boundaries and the title plan

Most registered titles have general boundaries. Section 60 of the Land Registration Act 2002 provides that the boundary shown for the purposes of the register is a general boundary unless it has been determined, and that a general boundary "does not determine the exact line of the boundary". HM Land Registry's own guidance (practice guide 40, supplement 3) says there is no standard tolerance between the line on a title plan and the legal boundary on the ground.

So a fence a little away from where the plan seems to put it is not, on its own, evidence of anything. A plan that leaves the garden, a garage or a parking space outside the title altogether is a different matter. An owner can apply for a determined boundary under rule 118 of the Land Registration Rules 2003 (Form DB), but that needs a precise plan and evidence and is rare on an ordinary purchase.

What the conveyancer had to check

The standard is that of a reasonably competent conveyancer, applied to what you asked them to do. In a typical purchase that includes:

• Reading the title register and title plan, and any deeds they refer to, and explaining entries that affect what you told the conveyancer you wanted to do with the property.
• Checking the seller's answers on the property information form, which asks about boundaries, rights of way, shared arrangements and informal arrangements with neighbours, and raising enquiries where an answer is vague, contradicts the register, or reveals a right you need but may not have.
• Reviewing the drainage and water search to see how the property connects to the public sewer, and asking about rights where drains run through private land.
• Sending you the plan and asking you to confirm that the land you think you are buying, including the garden, drive and any garage, is within the edged area.
• Advising on gaps. A missing right of access or drainage may be cured by a deed of grant from the neighbour, or covered by a title indemnity insurance policy — a private policy bought on the purchase, not to be confused with the Land Registry indemnity described below.

Missing a right that was on the register, or failing to ask an obvious question about one that was not, is the classic breach. A conveyancer cannot be expected to know of a use of the land that left no trace in the documents and that the buyer saw but did not mention.

What you were expected to notice

Conveyancers work from documents; buyers see the property. If a worn path crossed the garden, a neighbour's gate opened onto the drive, or a fence plainly enclosed less land than the plan, the conveyancer is likely to argue the buyer knew or should have raised it. That goes to breach, to causation and to contributory negligence, which can reduce damages.

Causation and loss

Breach is not enough. A claimant has to show what they would have done with proper advice — not bought, negotiated a lower price, insisted on a deed of grant or insurance before exchange — and what that difference cost them. How the courts measure that loss is covered in how loss is measured in conveyancing negligence.

Rectification and indemnity from HM Land Registry

Sometimes the fault is in the register itself: land registered in the wrong title, or a right left off or wrongly entered. Schedule 4 to the Land Registration Act 2002 allows the register to be altered to correct a mistake; where the correction prejudicially affects the registered owner's title it is called rectification. An owner in possession of the land is protected: the register cannot be rectified against them without their consent unless they caused or substantially contributed to the mistake by fraud or lack of proper care, or it would for some other reason be unjust not to make the change.

Schedule 8 then provides a Land Registry indemnity — compensation paid by the registrar — for loss caused by rectification, or by a mistake whose correction would involve rectification. Three points matter:

• No indemnity is payable for loss suffered wholly as a result of the claimant's own lack of proper care, and it is reduced where the claimant's lack of care contributed in part.
• HM Land Registry treats redrawing a general boundary in a more accurate position as an alteration, not rectification (practice guide 39), so the ordinary fence-versus-plan discrepancy rarely leads to an indemnity.
• For limitation purposes the indemnity claim is treated as a simple contract debt, and the cause of action arises when the claimant knows, or but for their own default might have known, of the claim.

If the register was right and nobody explained it, there is no registration mistake; any claim lies against the adviser. See professional negligence time limits and the pre-action protocol.

What a solicitor will want from you

• The title register and title plan as at the date of purchase, and the current versions.
• The conveyancer's report on title, the seller's property information form, replies to enquiries and the search results.
• Anything you told the conveyancer about how you planned to use the property, and any plan or photographs they sent you.
• Evidence of the problem: the neighbour's letter, photographs, a boundary surveyor's report.
• An honest account of what you saw on viewings, including paths, gates or fences that might have put you on notice.
• Any application or letter to HM Land Registry, and its response.

Run the free case check

This guide is general information about the law of England and Wales. It is not legal advice. Boundary and easement disputes turn on their own deeds, plans and evidence.