The Boundary Dispute and the Missing Register Entry

The starting point is the registered title. Under the Land Registration Act 2002, the register is conclusive as to title, but the boundary shown on the title plan is general and not definitive. A boundary dispute can still arise where the physical boundary differs from the plan.

The 1998 conveyance. If the strip was conveyed to Mr Kaur's predecessor in 1998, and the land was unregistered at the time, the conveyance transferred the legal estate in the strip. When the property was first registered in 2001, the strip should have been included in Mr Kaur's title or excluded from Margaret's. If it was not, the register may be inaccurate. The buyers should obtain the 1998 conveyance, the first registration application and the title plan.

Effect of registration. If the strip is included in Margaret's registered title and Mr Kaur's claim is not protected by a notice, caution or restriction, Mr Kaur's interest may be overridden. However, if he has been in adverse possession, he may have a claim. Since 2003, adverse possession of registered land requires an application to HRL, and the registered proprietor is given notice. The buyers should check whether any application has been made.

The seller's reply. The statement that the claim is "historic and irrelevant" is not adequate. The buyers should require:

• copies of the 1998 conveyance and any correspondence with Mr Kaur;
• a statutory declaration from Margaret and her predecessor about the hedge and use of the strip;
• a plan showing the physical boundary and the registered boundary;
• confirmation of whether Mr Kaur has made a claim or application.

Practical advice. The buyers should not complete without a satisfactory boundary report. They should consider a retention or an indemnity policy, but indemnity policies usually exclude known disputes. They should also check the lender's requirements, since a clear title is required. If the claim is unresolved, they may need to renegotiate the price or delay completion.

Standard condition. The condition that the property is sold with the benefit of all easements and quasi-easements does not resolve a dispute about the ownership of the strip. It may help with rights enjoyed over the strip, but it does not transfer land that the seller does not own. If the strip belongs to Mr Kaur, the condition cannot give the buyers title to it.

Merger. On completion, the contract merges into the conveyance or transfer. After completion, the buyers cannot sue on the contract for defects in title that they knew about or could have discovered by inspection and enquiry. The doctrine of merger means that the buyers' remedies after completion are limited to:

• claims under the transfer covenants;
• claims for misrepresentation, if the seller made a false statement;
• claims under any title guarantee.

A full title guarantee includes covenants that the seller has the right to convey, that the buyer will have quiet enjoyment, that the land is free from charges, and that the seller will do what is reasonable to give the buyer good title. If the strip is not owned by the seller, the seller may be in breach of the covenant for further assurance or the covenant against encumbrances, depending on the wording.

Practical consequences. The buyers should:

1. Complete only after the boundary issue is resolved or adequately protected.
2. Ensure the transfer includes a full title guarantee and, if possible, an indemnity covenant from Margaret.
3. Obtain a boundary indemnity policy only if the insurer will cover a known dispute (often excluded).
4. Keep records of the pre-contract enquiries and replies, since a claim for misrepresentation may survive merger if the statement was fraudulent or negligent.
5. Consider a retention from the purchase price until the dispute is resolved.

Conclusion. The standard condition does not cure the defect, and merger will limit the buyers' remedies after completion. They should resolve the issue before completion or obtain specific contractual protection.