A homeowner has succeeded in his application for a boundary determination after his neighbours extended their driveway and built a fence in front of his window.
The homeowner had bought his house in 2021. A few months later, the neighbours had dug up part of a garden between his house and theirs in order to extend their driveway. They then erected a high fence along the edge of the new driveway, in front of the homeowner’s bay window.
The homeowner applied for a boundary determination, relying on the original transfer plan for his property. The neighbours objected, claiming that the parties’ predecessors in title had agreed that the boundary would be a wooden fence and a metal fence that had been in place when the neighbours had purchased their property in 2019.
The neighbours argued that the homeowner’s application was, in reality, an application to rectify the register. However, the First-tier Tribunal (FTT) observed that it was the neighbours who were arguing that the transfer plan and the registered title for their property were incorrect and needed to be changed. The neighbours contended that the true boundary ran from the corner of their garage along the edge of their newly extended driveway. However, that was not what was shown on either of the transfer plans or the registered title plans, which showed the boundary stepping into the area now occupied by the driveway.
The neighbours did not claim that there had been an express boundary agreement between the parties’ predecessors in title, but rather that an agreement could be inferred from their actions. They cited a number of factors that they claimed supported the existence of a boundary agreement, including the locations of the fences, the fact that the driveway as originally constructed was not the recommended width for double garages and/or was not compliant with the approved plans, and their predecessors in title having been in exclusive possession and/or actual occupation of the garden.
However, there was no evidence that there had been a fence between the properties before the neighbours’ first viewing in 2019. They acknowledged that they did not know when the fence had been erected and photographs indicated that it had not been there when the properties were originally transferred in 2016. The other factors they pointed to were not such as to give rise to the inference of a boundary agreement, and the FTT did not accept that there was sufficient evidence to infer such an agreement.
The FTT upheld the homeowner’s application and directed the registrar to give effect to it.