Boundary agreement signed by husband of property owner deemed valid and binding on successors in title

Following the decision in White v Alder (see our Insight), where it was found that a boundary demarcation agreement entered into between two neighbouring property owners was binding on each owner’s respective successors in title (notwithstanding their lack of knowledge of it),  the recent case of Bishop v Jacques provides guidance as to the validity of a historic boundary agreement which (a) lacked certainty in terms of the precise location of the boundary, and (b) was signed by the husband of the (then) property owner. 

The case concerned Mr Bishop’s application to the Land Registry for a boundary to be determined. A determined boundary agreement seeks to do just that – it establishes the precise boundaries between adjoining parcels of land and aims to resolve any uncertainty or disputes regarding the exact location of those boundaries.  Mr Bishop’s application related to the boundary between a strip of land belonging to him (the Avenue), and the garden of Beacon Cottage, belonging to Mrs Jacques. On Mr Bishop’s case, the boundary line was on one side of a strip of pine trees, incorporating the trees into his land; on Mrs Jacques’ case, the boundary line was on the other side of the strip of trees, incorporating the trees into her land. 

Mr Bishop’s intention was to potentially develop a site accessed via the Avenue. If the strip of trees were included within Mr Bishop’s land, the Avenue would be wide enough for his development plans, but if they were not, the Avenue would be too narrow to enable access to the site. 

A “memorandum” was produced in evidence which had been entered into on 28 October 1971 between Stewart Grant Dewar (the husband of the previous owner of Beacon Cottage) and Charles Noble (the previous owner of the Avenue), which recorded the following agreement:

"This is to certify that it is agreed between Stewart Grant Dewar of Beacon Cottage, Battle, and Charles Patrick Cay Noble of North Lodge, Battle, that the strip of land and the trees thereon which forms the western boundary of Beacon Cottage is the property of the said Stewart Grant Dewar."

Contrary to the present position in which Mr Bishop and Mrs Jacques were each claiming that the strip of trees belonged to them, the previous owners of Beacon Cottage and the Avenue had argued that this land belonged to the other.  This was due to the perceived onerous responsibility of owning the pine trees standing along the strip of land. 

Nevertheless, agreement was eventually reached, and following Mrs Dewar’s purchase of Beacon Cottage, she and her husband applied for a tree preservation order with the consent of Mr Noble, and the Memorandum was drawn up. 

Even though Mrs Dewar sold Beacon Cottage in 1977, she was called to attend the First-Tier Tribunal ("FTT") for the purposes of the present dispute, and gave evidence as to the Memorandum and the circumstances surrounding it. 

The Memorandum only referred to trees and not to defined boundary features. It did not annex a plan, nor were any dimensions or coordinates referenced. 

It was held that the contemporaneous evidence (including a planning permission plan) made the strip of land, referred to in the Memorandum, sufficiently identifiable.  As a result, the Memorandum was held to be valid and effective, notwithstanding that it did not comply with formalities for the transfer of land, as the intention of the document was simply to record the parties’ agreement as to the precise location of the boundary.  Accordingly, the location of the boundary was such that the strip of pine trees were included within Mrs Jacques’ title, rather than Mr Bishop’s. The treatment of the Memorandum by the Upper Tribunal (“UT”) therefore meant that Mr Bishop’s application to the Land Registry failed. 

Not only was the Memorandum signed by a non-owner (Mrs Dewar’s husband), but it even expressly stated that the land comprising the strip of pine trees was the property of Mr Dewar.  Even so, the intention of the parties was held to be unambiguous, and the FTT held at first instance that the husband was clearly acting as agent of the registered proprietor. The UT upheld this decision on appeal. 

The Court and Tribunal’s decisions in this case and that of White v Alder show a clear preference for upholding boundary agreements, notwithstanding perceived issues of authority, clarity, or knowledge. The decisions suggest that common sense will prevail in similar disputes, and that clear intentions of the parties to any such boundary demarcation agreement will not be defeated by informality or technicalities. It is therefore crucial that, when purchasing a property, specific and comprehensive boundary enquiries are raised with the seller, and that any boundary demarcation agreements are treated seriously and with the assumption that they would be upheld by a Court or Tribunal, who are clearly willing to find in favour of such agreements where possible.