Boundaries of properties registered at the Land Registry are shown on their title registers as general boundaries unless they are determined under s.60 of the Land Registration Act 2002. A general boundary does not determine the exact line of the boundary.
If a property owner wants to record the boundary more precisely then they can either apply to the Land Registry for the boundary to be determined under the Land Registration Act 2002, or agree a boundary demarcation agreement with their neighbour.
In this article we consider the purpose and nature of boundary agreements, how their scope has been clarified by the recent Court of Appeal decision in the case of White v Alder and what this means for developers buying/selling land.
In the White v Alder case, the Court of Appeal reiterated that there are two type of boundary agreements.
The first type of agreement involves moving a boundary from one neighbour to another and is therefore subject to the formalities necessary for the conveyance of land as set out in the Law of Property (Miscellaneous Provisions) Act 1989.
The second type of agreement demarcates the boundary between two properties thereby clarifying responsibility for maintaining and repairing etc any boundary features. This agreement does not need to be in writing and can even be implied from the parties conduct. It's commonly referred to as a boundary demarcation agreement.
This case concerned two neighbouring parties – Mr White and Mr Alder – who both purchased their properties, Willow Cottage and The Old Stores respectively, in November 2005. Unbeknown to Mr White, their predecessors had agreed the location of the boundary and recorded it in writing together with a plan. In spring 2016, Mr White demolished part of the boundary wall and began to construct an extension to Willow Cottage. Following this and further incidents, Mr Alder commenced proceedings seeking damages and an injunction restraining Mr White from trespassing onto his property.
The Court of Appeal considered the following issues:
It held that a boundary demarcation agreement has proprietary effect and binds successors in title regardless of whether they have knowledge of the agreement noting 'if the effect of a boundary agreement is to define the extent of the parcels of land owned by the parties to it, it must logically continue to define the extent of the parcels when they are transferred to a successor in title'.
The court also accepted previous authority that if the purpose of the boundary agreement is to define a previously unclear or uncertain boundary, then the fact that a 'trivial' transfer of land is effected by the agreement does not make it a contract purporting to convey land and therefore subject to the statutory formalities for the transfer of land to be evidenced in writing etc.
The Court of Appeal’s recent findings are unsettling for anyone looking to buy land and their advisors, but even more so for developers who might acquire land at a premium, only to find their development plans, or even the conditions attaching to a planning permission, are hamstrung by a previously undisclosed boundary demarcation agreement and the principle of caveat emptor. This could leave them potentially without any legal recourse.
Whilst there is no failsafe course of action, the most robust protection for the buyer/their advisors is to ensure that pre-contract enquiries of the seller include a very specific question along the lines of 'are you aware of any boundary agreements (written or implied) affecting the Property'. As the recent property misrepresentation case of Iya Patarkatsishvili and Yevhen Hunyak v William Woodward-Fisher (aka the 'moth case') reminds us, care needs to be taken to review the seller’s answers to pre-contract enquiries carefully and to carry out any further investigations which could involve meeting the neighbouring landowner for example.
Sellers of land and their advisors also need to be mindful to reply to pre-contract enquiries with honesty. Reckless or dishonest representations to pre-contract enquiries can establish fraudulent misrepresentation and whilst the standard remedy for fraudulent misrepresentation is damages, sellers need to be aware that judges – such as Mr Justice Fancourt in the moth case – will not be afraid to order rescission of contract for sale of the property.
The Court of Appeal’s decision has already been considered by the lower courts. In the case of Byrne v Archer*, the High Court was invited to distinguish White v Alder but Mr Justice Williams declined to do so saying he considered it to be ‘of general application and binding upon me.’
It's early days and unless and until the courts decide otherwise, White v Alder holds fast as an authority and we await further judicial analysis of this case with interest.
For further information or advice, please contact our property litigation team.
* Byrne v Archer [2025] EWHC 1136 (Ch)
