Land registration – Boundary dispute – Boundary agreement – Appellant applying for determination of line of boundary between strip of his land and respondent’s property – First-tier tribunal determining position of true boundary relying on earlier agreement between parties’ predecessors in title – Appellant appealing – Whether boundary fixed by previous agreement – Appeal dismissed
The appellant applied for the determination of the boundary between a strip of land belonging to him known as The Avenue, and the garden of Beacon Cottage, North Road, Battle, East Sussex, owned by the respondent. The Avenue provided access to a potential development site, also belonging to the appellant.
In May 2020, the appellant applied to the Land Registry to determine the boundary between the two properties. He asserted that the true line of the boundary was along a line shown on the application plan which denoted a hedge on the western side of the cottage garden as identified in a 1949 conveyance. The respondent objected to the application which was then referred to the First-tier Tribunal for determination.
The FTT decided the position of the boundary by reference to an agreement reached in 1971 between the parties’ predecessors which stated that the land on which a row of pine trees stood was part of Beacon Cottage. That agreement was recorded in a memorandum and was binding. It also found in favour of the respondent that the 1971 boundary agreement was in accordance with the paper title established on the 1949 conveyance; and secondly, if both of the previous findings were wrong, the owners of Beacon Cottage had been in adverse possession of the disputed portion of The Avenue since at least 1980 and acquired title to it before the commencement of the Land Registration Act 2002. The appellant appealed.
Held: The appeal was dismissed.
(1) There were two types of boundary agreement. The first was an agreement the purpose of which was to move a boundary so as to transfer land from one neighbour to another. That was subject to the formalities necessary for the transfer of land. The second type was an agreement, the purpose of which was to define a previously unclear or uncertain boundary, even if it included the transfer of a trivial amount of land (a boundary demarcation agreement). It was presumed that the land transferred was trivial unless the presumption was rebutted. The consideration for the agreement, which bound the parties to it, was the substitution of certainty for uncertainty and the avoidance of the risk of future disputes.
Such an agreement had proprietary effect and, as a result, also bound successors in title. It defined and delineated the boundary between the properties as from the root conveyance or transfer. Such an agreement was, of its very nature, a delineation of the property transferred or conveyed for all purposes. As no one was able to transfer or convey more than they owned, such an agreement effectively bound successors in title whether or not they had knowledge of it, because it defined what they purchased. A legal boundary did not move because the land was subsequently conveyed or transferred. The boundary demarcation agreement was ancillary to the conveyance or transfer and established on the ground the physical extent of the respective legal estates created by the conveyance or transfer. The boundary was presumed always to have been in that location: Neilson v Poole (1969) 20 P & CR 909, Nata Lee Ltd v Abid [2014] EWCA Civ 1652; [2014] PLSCS 361 and White v Alder [2025] EWCA Civ 392; [2025] EGCS 61 applied.
(2) The memorandum to the 1971 conveyance was clearly intended to be a formal document; it recited that its purpose was to record the existence of an agreement and to some extent it was couched in legalese. With the benefit of the near contemporaneous correspondence and the planning permission plan it was clear what trees were being referred to, namely the trees shown on that plan. Those trees were not individual specimens but stood in a line, and so were consistent with the reference to “the strip of land and the trees thereon”. They were also very substantial and required no other qualifying description to make it clear which they were. Significantly, the context in which they were being referred to in the memorandum was the resolution of a dispute and the trees about which there had been a dispute between the previous owners were specifically identified in the report on title as pine trees. It was fanciful to suggest that the trees with which the agreement was concerned were other than the row of pines trees shown on the planning application plan.
(3) The original parties having agreed that the trees and the strip of land on which they stood (a reference to the verge on the eastern side of the Avenue) were part of Beacon Cottage, it was immaterial for the purpose of these proceedings that the precise position of the trees was not specified. The stumps of the trees were still present and their location was not in doubt. Nor was there any need for a boundary agreement to satisfy the technical requirements of a determined boundary application. What mattered was that the owners of land on both sides of the boundary agreed that the trees and the strip of land they stood on form the western boundary of Beacon Cottage. That was enough to defeat the appellant’s application to determine a boundary up to three or four metres to the east of the trees.
(4) It was clear that the 1971 memorandum was not intended to achieve a transfer land from one title to the other. It was an agreement in which the parties agreed that the true position of boundary was, or should from henceforth be agreed to be, in the position they decided without consciously transferring any land between them. No formalities were required to be completed to give effect to that agreement. The question whether any transfer was actually effected was irrelevant, because the parties expressed themselves simply to be recording the position and ownership of the boundary as it already was, not as it was intended to become as a result of the agreement.
By reason of the 1971 memorandum, the title to the property which the appellant acquired did not include the strip of land on which the row of pine trees had previously stood. His application to determine the boundary in a position which would incorporate that strip of land into his title therefore could not succeed.
Oliver Ingham (instructed by Direct Access) appeared for the appellant; Simon Williams (instructed by Donaldson Dunstall Solicitors, of Bexhill-on-Sea) appeared for the respondent.
Eileen O’Grady, barrister
