Q&A: Boundary Issues

My partner and I recently became the registered proprietors of a cottage. To the east of our property is a six metre line of ash trees which separates our cottage (Cottage A) from the neighbouring property, Cottage B.

Our neighbour is the registered proprietor of Cottage B, and he has lived there since 2006.

When we purchased Cottage A, our conveyancing solicitor told us that the line of trees marked the boundary between the two properties but that they were clearly on our side of the boundary and that there was an agreement in place to this effect. He based his view on a written “memorandum” between the previous owner of Cottage A and Cottage B.

However, the memorandum was signed by the then-owner of Cottage A and the uncle of the previous owner of Cottage B, written in 1986 with a plan attached.

That memorandum sought to agree the position of the boundary by reference to the ash trees along the eastern boundary of Cottage A (as shown on the plan attached to the memorandum).

My conveyancing solicitor also told me that there were some letters appended to the memorandum which explained that there had been a dispute about the boundary between the properties and that the memorandum was an attempt to provide some clarity to the situation. I haven’t seen these letters.

Recently, the owner of Cottage B informed us that he intends to remove the ash trees in order to allow builders access to the rear of his property for a kitchen renovation. Can he do this?

It is not clear whether the boundary agreement would be upheld as valid by the court and binding on the owner of Cottage B. It was entered into and signed by the uncle of the then-owner of Cottage B. Based on a recent authority, there is a question mark over whether he had sufficient authority to enter into the agreement to bind the owner of Cottage B and successors in title. This will turn on the terms of the memorandum itself and the circumstances in which it was entered into.

Explanation

There are two elements of this question to resolve:

• Is the “memorandum” a valid boundary agreement?
• If so, does it bind successors in title, even if they are unaware of its existence?

On the first question, there are two types of boundary agreement (White v Alder and another [2025] EWCA Civ 392; [2025] EGLR 20). The “memorandum” appears to be one of those types: an agreement to define a previously unclear or uncertain boundary (even if it includes the conscious or unconscious transfer of a trivial amount of land). This is because it seems from your situation that the purpose of the memorandum was to agree the boundary following a boundary dispute. It is important to get copies of the letters mentioned by your solicitor to confirm this.

As to validity, it seems that the memorandum sufficiently identifies the boundary and boundary feature – the ash trees. A similar memorandum was the subject of Bishop v Jaques [2025] UKUT 141 (LC), which referred to “trees” as a boundary, although in that case no plan was exhibited to the agreement, nor were any dimensions or coordinates referenced in it.

Despite this, the memorandum was found to be valid and the trees sufficiently identifiable due to contemporaneous evidence and a planning permission plan of the site. In your case, there is the benefit of a plan, which should resolve this issue.

The main problem with validity of the memorandum is that it was signed by the uncle of the previous owner of Cottage B, who was not its legal owner. An analogous issue arose in Bishop where the husband of the former legal owner had signed the memorandum.

The Upper Tribunal concluded that the husband was acting as agent for his wife (irrespective of the fact the memorandum in question did not confirm this), however, they placed a lot of weight on the wife’s evidence in the hearing.

In the case you have described here, if the memorandum does not make it clear that the uncle is acting as agent for the owner of Cottage B, the position would then depend on whether the uncle expressed himself as acting with authority or not.

It would be necessary to consider both the terms of the memorandum itself and the circumstances in which the memorandum was signed by the uncle to determine its validity definitively.

A valid boundary agreement binds the successors in title irrespective of whether they had knowledge of it. In White v Alder, the court explained that a boundary agreement creates or alters property rights as it defines and delineates a boundary as from the root of a conveyance or transfer.

Since no one can transfer or convey more than they own, a boundary agreement therefore binds successors in title irrespective of whether they have knowledge of it. This means that if the memorandum is valid, it will bind the now owner of Cottage B even if they deny knowledge of its existence.

Further, if the neighbour were to remove the trees, this may constitute a trespass and criminal damage.

Emma Preece is a senior associate at Charles Russell Speechlys LLP and Poppy Kemp is a barrister at Landmark Chambers.

This article was originally published on the Estates Gazette website on 26 January, 2026.