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To gauge an understanding of how boundaries are perceived in Ireland by landowners

Author - Daragh O'Brien, Dr. Patrick Prendergast

 

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9. DISCUSSION

Every boundary system used throughout the world has its strengths and weaknesses and more often than not, the boundary system a country uses is influenced by local history. For Ireland, this was no different, as the boundary system we have today was inherited back in 1891. The data from this research illustrates that Ireland’s registration system has some way to go to improve Irish landowners knowledge of their boundaries. As described, on average, 21% of people did not know where their property was registered, while 60% of landowners choose the Land Registry as the main port of call to access information on their boundaries. There is confusion among landowners of the system of registration due to the many changes over the years and now with the introduction of the PRA, which is attempting to streamline the system. The results suggest there is a lack of confidence in the PRA to develop accurate documentation undermines the credibility and the public apathy and trust in the system and this may be its Achilles heel. 80% of those surveyed indicated that registration of some type was recorded and it is encouraging and certainly work needs to be done by the statutory authorities to promote and clearly define the system of registration in Ireland. Better communication is required by the statutory authorities to engage with the general public in providing information on their property.

    “I have a dispute with my neighbour over where the boundary lies. Can you tell me who is right? No. The Land Registry map is an index map and identifies property, not boundaries. Therefore, we are not in a position to advise.” (PRA, 2010).

This statement suggests there is a problem with land registration system. This is noted by leading solicitors Kaye (2006) explaining that as long as the plans from the Land Registry do not clearly describe where the boundary lines are on a maps, they will always be open to dispute and thus boundary disputes will occur Prendergast et al (2008) is also taken aback by this quote,

    For most property owners this answer is unbelievable. If the PRA cannot supply reliable information on property boundaries to resolve boundary disputes, who can, or more importantly, should the PRA be in a position to do so?” (Prendergast et al, 2008, pg. ixa). 
The features of a boundary are what distinguishes one property from another and are one of the most important aspects of any boundary dispute. The results indicated hard landscape boundaries in urban areas and boundary features in keeping with rural landscape and its environment. The boundary features differ in type, shape and size from single post and wire fencing to a wide double ditch with watercourses. As the OSi maps show a line to represent a boundary together with the limited stated tolerances on the OSi maps, boundary features need to be surveyed accurately to show what is on the ground and all calculation of areas, plots and fields need to be made more accurately. Each boundary feature needs to be assessed in computing calculations and detail surveying of each feature for accurate mapping purposes.

     “The lines on OSi maps depict topographic features (hedgerows, walls, etc) which may or may not represent property boundaries, and the PRA uses these lines on OS maps, without any checks on their veracity to depict the boundaries of properties(Prendergast et al, 2008, pg. 3).

This ambiguity is thought to be one of the many reasons why boundary disputes occur and why Ireland’s land registration system does not guarantee property. Determining the centre line of a boundary feature is important and an example of this can be described with a concrete block wall, which is easily determined. In relation to walls, some blocks maybe 100 mm wide, one is able to record the position of the centre line to ± 10 mm. However with other boundary features, such as an overgrown hedgerow and fences, they may differ in size and determining the accuracy and centre line of a boundary feature is extra important, as Ireland’s boundaries are non-conclusive (Prendergast et al, 2008).

It was interesting to note that on average 58% of people did not know that Ireland’s boundaries were non-conclusive and not guaranteed by the state. This result further indicates the lack of property boundary knowledge Irish landowners have. Whether Ireland will change from a non-conclusive boundary system to a conclusive boundary system remains to be seen. There is a strong movement from the IIS (Irish Institute of Surveyors) where their aim is to adopt best practice and use modern surveying techniques to produce accurate boundary surveys for land registration and to implement a Cadastral like system to register boundaries as conclusive. One such way in which the Land Registry provides conclusive boundaries is when people have a dispute over a boundary; they can in fact under existing legislation, have the new agreed boundary registered as conclusive with the Land Registry. This has been in operation since the Registration of Titles Act 1964, sections 86, 87 & 88, however this is rarely used. It is also been encourage that landowner’s voluntary shift from non-conclusive boundaries to conclusive. It is difficult to see landowners opting for this, as both parties must form an agreement after detailed surveying has been complete. There are also encouraging signs of improvement within the professional surveying community with the development of a guidance note for Boundary Identification & Demarcation & Dispute Resolution (Society of Chartered Surveyors, 2010). This was introduced to encourage the surveying profession to implement standards in their day-to-day work to minimize ambiguity in their work.

To further elaborate on this, Wallace et al (2010) explains that, in some underdeveloped countries, one cannot register their ownership of land & thus an informal selling process of land is only available. An effective land market needs to be functioning effectively through organized conveyancing mechanisms, boundary definitions and a well functioning banking sector that allows land to be kept as security.Wallace et al (2010), also claims that only around 35 countries in the world are able to use their land to generate wealth. Examples of countries that run effective land markets are USA, Europe, Canada, and Australia & New Zealand. In the USA, one aspect is different than other western democracies (Europe, Canada, Australia) in that the USA does not, like Ireland, have a national Cadastre.Wallace et al (2010) claims that one of the prime reasons for mortgage market failures, also known, as the sub-prime mortgage market was the lack of a national Cadastre which enables banks to identify which loans are bad and the location of these loans. Thus, the infection of the bad loans would not have spread as wildly through the main city areas and is a principal reason why Cadastres can be used to great effect along with the ability to manage land markets. Has Ireland’s lack of a Cadastre been a contributing factor in the catastrophic failure of Irelands Banking and Property system, currently estimated at €150 Billion?

It was surprising that on average, 55% of landowners never checked their property boundaries or were unaware if they did so. This seems very careless by the prospective purchaser when “caveat emptor” is well known as the purchasers risk in acquiring property. The survey records that only 45% of respondents checked their boundaries, which was a surprisingly low result in a vibrant market for property in the past 10 years when property became very expensive.

The survey also indicated that the expert people within the Legal, Engineering and Surveying professions were best to resolve disputes. This would require landowners paying professional fees for their service and all of this tends to end up in court or an alternative dispute resolution with expensive costs, borne by the landowners. Results suggest that, 18% of neighbours choose to resolve their own disputes; however it was clearly not possible in the majority of cases.

There was quite a wide variation of views from respondents with regard to access to information and where best to obtain direction on their boundaries. Even with the introduction of the new PRA system, it appears that the general public is not aware of its position or responsibility. More information is needed to address this situation by the relevant statutory bodies.

The survey raised the issue of current disputes by landowners and it was significant that urban (32%) and rural (38%) had current disputes. This is over a third of respondents and what emerged was that there was a multiplicity of issues involved and uncertainty is an area that needs to be detailed and investigated further. Respondents were invited to identify how long they have owned their property. This was then matched to those who had claimed they had a dispute. It was found that the number of years people owned their property and those currently involved in a dispute was between 2 years and 40 years. When compared to the people in rural areas, a significant difference was established. The length of time they possessed their property was between 6 years and going back to previous generations for 200 years. The data clearly indicates that people who possess property for a longer period of time i.e. inherit and those who own a larger acreage of land are more susceptible to having disputes over their boundary. This information looks odd and needs further investigation. Furthermore respondents claimed that they were having issues with their boundaries asserting that that the new digital Land Registry map is inconsistent with boundaries on the ground, both in rural and urban areas. The issue of Irelands mapping system needs to be addressed, and the question needs to be asked, why are millions of Euro being spent on a system that is approximate nature and has little legal validity?

9.1 Other issues raised

The survey indicated that landowners were unhappy that their rights of way were not registered or shown on Land Registry maps or deed maps, which in many cases created uncertainty and ambiguity with landowners’ entitlements. Other issues identified include, encroachments by neighbours and alternations to original boundaries due to planning permission issues.

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