The importance of establishing boundaries

In White v Alder and another [2025] EWCA Civ 392; [2025] EGCS 61, the Court of Appeal has confirmed that a boundary demarcation agreement, the purpose of which is to define a previously unclear or uncertain boundary, requires no formalities, even if it involves transferring trivial amounts of land. Such an agreement binds the parties and their successors in title, irrespective of knowledge. Key points A boundary demarcation agreement requires no formalities Its purpose is to delineate the property transferred/conveyed Consequently, it binds successors in title irrespective of knowledge Background Darren White and Michael and Sheila Alder were neighbours in Fairstead, Chelmsford. The Alders purchased the Old Stores on 2 November 2005 and White purchased Willow Cottage on 11 November 2005. In October 2005, the parties’ predecessors in title had orally agreed the location of the boundary between the two properties and that the owner of the Old Stores owned the physical boundary features. The agreement was later recorded in the form of text and a plan. White claimed to have no knowledge of such agreement. In April/May 2016, White demolished a part of the boundary wall between the two properties and began to construct an extension to Willow Cottage. The Alders alleged the wall and foundations of the extension and temporary scaffolding were trespassing on their land. In September 2020, they issued proceedings seeking damages, injunctive relief for trespass and declarations as to the position of the boundary. In July 2022, the district judge handed down judgment on preliminary issues as to the existence and effect of the boundary agreement. The judge decided the boundary agreement reached by the parties’ predecessors in title was an agreement to clarify an uncertain boundary and not a contract to convey land. The agreement bound White and the Alders as their successors in title. White’s first appeal to the High Court was unsuccessful. However, he obtained permission to appeal to the Court of Appeal on the ground that it was arguable the judge was wrong in law to hold that the boundary demarcation agreement was binding on him as a successor in title irrespective of whether he had knowledge of the agreement when he acquired Willow Cottage. The law The seminal case on boundary agreements is Neilson v Poole [1969] 20 P&CR 909, where the judge upheld an oral boundary agreement between Neilson and Poole’s predecessor in title despite a failure to register it as a land charge under the Land Charges Act 1925. The judge identified two types of boundary agreement: (i) an agreement the purpose of which is to move the boundary so as to transfer land from one neighbour to another. Such an agreement is subject to the formalities necessary for the transfer of land under the Land Charges Act 1925 and the Law of Property (Miscellaneous Provisions) Act 1989; and (ii) an agreement the purpose of which is to define a previously unclear or uncertain boundary – to establish on the ground, what a conveyance shows – where perhaps trivial amounts of land exchange hands but nothing is consciously transferred. No formalities are required for it to be binding. Neilson was endorsed in subsequent cases by the Court of Appeal: (a) Joyce v Rigolli [2004] EWCA Civ 79; [2004] PLSCS 35, where the court upheld an oral agreement between the parties resulting in a marginal exchange of land between neighbouring properties on the basis that it served solely to demarcate the boundary and had not purported to convey land. (b) Haycocks v Neville [2007] EWCA Civ 78; [2007] 1 EGLR 78, where the court upheld an agreement reached by the Haycocks and the defendants’ predecessors in title as to the boundary between their front gardens on a newly constructed estate and planting had taken place along the boundary. The agreement to demarcate the boundary was binding on the parties and their successors in title.  (c) Nata Lee Ltd v Abid [2014] EWCA Civ 1652; [2015] EGLR 21, where Briggs LJ explained the consideration for a boundary demarcation agreement was “provided each way, by the substitution of certainty for uncertainty as to the boundary, and the relief of both neighbours from the risk of future dispute”. The decision Having considered the authorities, the Court of Appeal confirmed the two types of boundary agreement identified in Neilson. White relied heavily on the appeal judge’s comments in Gibson v New [2021] EWHC 1811 (QB), which concerned a dispute between neighbours about the boundary between their gardens. Following two mediations, a settlement agreement was concluded whereby a surveyor would be chosen to identify the boundary and the parties would be bound by the surveyor’s decision. The News were not happy with the surveyor’s report and the dispute continued. The judge declared the report was in accordance with the settlement agreement and the parties were bound by it.  On appeal, the judge upholding the decision commented that it did not bind successors in title. The Court of Appeal considered such comments were obiter dicta because the judge was concerned with the effect of the declaration on the parties and not with boundary agreements in general. Gibson did not change matters. A boundary demarcation agreement has proprietary effect and binds successors in title because of its very nature in delineating the property transferred or conveyed. Public policy favours the binding nature of boundary demarcation agreements. As no one can transfer or convey more than they own, such an agreement binds successors in title whether or not they have knowledge of it because it defines what they purchase. White and the Alders were bound by the agreement. Louise Clark is a property law consultant Image © Ekaterina Bolovtsova/Pexels