Successors in title bound by predecessors’ boundary demarcation agreement, notwithstanding lack of knowledge

The Court of Appeal recently provided helpful guidance on the future application of boundary agreements in the case of White v Alder. 

Boundary agreements are a method of agreeing the legal boundary with a neighbour. Such agreements can record the physical feature which is recognised as the legal boundary, as well as who is responsible for the maintenance of it, whether that be a fence, tree, hedge or wall. It is not a transfer of land and is therefore not subject to the normal legal formalities for land transactions. 

A boundary agreement differs from a boundary determination – which is when a professional boundary surveyor plots the legal boundary on a plan which is then filed at the Land Registry. A boundary agreement simply reflects what is recognised and being treated as the boundary between neighbours, providing clarity between properties and minimising disputes, in particular where there may (for example) be more than one physical feature, different terrain or gradients. 

In White v Alder, the parties’ predecessors had orally agreed the location of the legal boundary in October 2005 between their respective properties (Willow Cottage and Old Stores). It was agreed that the boundary features on the line of the boundary belonged to the Alders. The oral agreement was transposed into an informal written agreement which comprised some text and a plan. 

Both White and Alder purchased in November 2005. In 2016 White demolished a boundary wall to enable an extension to be built. The Alders argued that the particular wall of the extension, its foundations and scaffolding used in its construction, all trespassed across the boundary. Trespass proceedings were subsequently issued. The lower courts found that the boundary agreement was binding on White, who subsequently appealed the decision, claiming the judge made an error in law, due to White’s lack of knowledge of it at the time of purchase.  

The Court of Appeal were asked to determine whether the boundary agreement reached by their respective predecessors was binding on them as successors in title, irrespective of their lack of knowledge. The Court of Appeal determined that the 2005 boundary agreement was binding on White and the Alders, as the very nature of such agreements is ‘a delineation of the property transferred or conveyed and is so for all purposes’, irrespective of lack of knowledge. The Court of Appeal looked back on the case of Neilson v Poole (1969) and agreed that there were good policy reasons for boundary agreements binding successors : Megarry J. had said that: “A boundary agreement is, in its nature, an act of peace, quieting strife and averting litigation, and so it is to be favoured in the law”. In short, the Court like boundary agreements and is willing to find them binding and enforceable where possible. This is perhaps not surprising, given that it is well-known the Court dislike boundary disputes and have historically encouraged parties to resolve such matters themselves and without Court involvement, if possible.

The agreement was consistent with the principle that no-one can transfer or convey more than they own, and establishes on the ground the physical extent of the parties’ respective legal estates. The boundary is presumed to have always been in this location. Boundary agreements are legal, and there is no requirement for prior knowledge in order for such an agreement to be valid. 

Practically speaking, the decision highlights the importance of raising specific boundary enquiries at the point of purchase. Whilst there is a section within property information forms (including those for both residential and/or commercial properties) which asks about boundaries, the forms do not specifically ask if the seller has entered into any boundary demarcation agreements with a neighbouring owner (or has awareness that a predecessor in title has). It would therefore be advisable to raise a specific enquiry when buying a property.