As pleasant as the boundaries were for King David, they are arguably not as pleasant for property owners in the property market in 21st Century Britain, as is amply demonstrated by two recent Court of Appeal decisions involving boundary disputes between adjoining property owners.
This article will review these cases, discuss their significance and make some suggestions as to how purchasers of property may mitigate uncertainty in light of the same. First, some important legislative and historical context.
The Land Registration Act 2002 (“the Act”)
The Land Registry and the Law Commission had recommended a fundamental objective of the Act preceding its coming into force; namely:
“To enable an effective system of electronic dealing with land, the register should be a complete and accurate reflection of the state of the title of the land at any given time, so that it is possible to investigate title to land on line, with the absolute minimum of additional inquiries and inspections” [1] (emphasis mine).
Even where you are not legally required to register land [2], His Majesty’s Land Registry (“HMLR”) website advocates that registering voluntarily ‘gives you proof of ownership’ (emphasis mine). That it does. It does not automatically prove the extent of what you own however. In that light, can it be said with confidence that the fundamental objective of the Act has been achieved and HMLR’s unqualified statement is accurate? The qualification referred to in italics (above) must be soberly appreciated by lay-persons and property practitioners alike. If not, there may be an ‘unpleasant’ surprise should a dispute later crystallise.
Historic Land Registration and Origin of the General Boundaries Rule
When the Land Registry Act 1862 (“the 1862 Act”) first introduced land registration in this country, maps and plans were required to show the exact boundaries of registered property. The then Land Transfer Commission’s (“the Commission”) 1870 report on the operation of the 1862 Act however noted that compelling people to have their boundaries defined led to two “immediate, mischievous consequences:
- Notices had to be served on adjoining owners and occupiers, sometimes amounting to an enormous number the service of which may involve great trouble and expense, and
- People served with notices immediately began to consider whether some injury is not about to be inflicted on them. In all cases of undefined boundary they find that such is the case, and a dispute is thus forced upon neighbours who only desire to remain at peace”
When the Land Transfer Act 1875 was enacted therefore, it provided that registered land was to be "described in such manner as the registrar thinks best calculated to secure accuracy", but such description was "not [to] be conclusive as to the boundaries or extent of the registered land" [3]. This same principle has latterly been carried through into the Act under what has become known as ‘the general boundaries rule’ (section 60 of the Act). The general boundaries rule means that a title plan cannot normally be taken to have defined the boundaries of land comprised in registered title precisely.
There are two arguable fallacies to the Commission’s second “mischievous consequence”, predicated upon which the general boundaries rule has become established:
- People who may tend to dispute an ill-defined boundary with a neighbour are just as likely to do so after discovering the same following registration of their property, as they would be upon receipt of notice to that effect prior to registration, and
- Whilst all reasonable neighbours would desire to ‘remain at peace’, not all litigants who end up in a dispute over a boundary are necessarily reasonable neighbours and, in that respect again, it matters not whether such litigants discover an ill-defined boundary before or after registration of their property, by formal notice or not.
The general boundaries rule may have helped HMLR by speeding up registered conveyancing, by achieving a ‘near enough’ accurate picture of property bought, but it may also have increased the number of disputes coming before His Majesty’s Courts and Tribunal Service (“HMCTS”), as the recent Court of Appeal decisions show. It is now the judge who has been left with the dispute ‘forced on them’.
Whilst also the risk arising from lack of guarantee of the location of a registered estate’s boundaries has been argued to be tolerable [4], the logical prior policy question, though one which has been ostensibly settled for over a century, is: Is prior precision better than subsequent uncertainty? I wonder whether King David would say, ‘precision is pleasant’?
Adverse Possession Claim
If the contested land is small compared to other land clearly within a registered proprietor's title, this would usually make the case a ‘boundary dispute’, whereas disputed land that is particularly important to the registered proprietor will usually make the case a ‘property dispute’ (while distinct, they are not mutually exclusive of course). That does not mean that uncertainty as to the position of a boundary must stem from an interpretation issue with a conveyancing document e.g. a plan. Such uncertainty can stem from an adverse possession claim [5]. Such was decidedly so in the recent case of Clapham v Nagra [2024] EWCA Civ 1388 ‘Clapham’.
With registered land, a person may acquire title to someone else’s land by adverse possession which, very basically, means intentionally possessing the land in fact, for at least 10 years. Such claim is perfected by making an application to HMLR to be registered as proprietor under Schedule 6 of the Act. [6]
Clapham
On 12th May 2020, Ms. Nagra bought her property, Brook Barn, Seagrave Road, Thrussington, Leicestershire (“Brook Barn”). She was registered as proprietor of the same on 5th June 2020. Brook Barn was just to the north of adjoining houses, numbers 24, 25 and 26.
These adjoining properties lay to the south of a brook which runs from west to east, with steep slopes on either side. A dispute arose between Ms. Nagra and the owners of the adjoining properties concerning land between the northern edge of the south bank of the brook and a fence ("the Fence") which stood at the top of the slope to the north of the brook ("the Disputed Land"). The building at Brook Barn is a little further northward [7].
At trial, Ms Nagra argued that the title plan in respect of Brook Barn showed the boundary with the adjoining properties as lying somewhat to the south of the brook. The judge however interpreted the plan as depicting the southern edge of the brook as the boundary and it was also noted that, in so far as the title plans for the various properties purported to show the brook, they had it in the wrong place. Further, and more fundamentally, the judge decided that the owners of the adjoining properties had acquired title by adverse possession to the north bank up to the Fence prior to the first registration of the title of Brook Barn. [8] This decision was upheld in the Court of Appeal. The effect of this decision is that the land which Ms Nagra thought she owned, simply by looking at the plan to Brook Barn had been owned by the adjoining owners prior to 19th March 2003 (the date upon which Brook Barn was first registered, over 17 years prior to Ms Nagra’s purchase of the same [9]).
Discussion
Prior precision may have saved Ms Nagra both the unpleasant surprise and no doubt the incurrence of possibly greater legal costs than the notice procedure denounced by the Commission. It must be appreciated that the result of the subsequent, no-doubt expensive litigation was that Ms. Nagra discovered what she in fact purchased on 12th May 2020. This is arguably contrary to the objective, even if not the guarantee of the Act: the register does not give us the complete and accurate picture.
Boundary Disputes
In addition to the above, the register may not give you certainty as to the boundaries of your estate but:
- Such certainty may nonetheless exist
- You may not know that when you purchase your property, and
- You may be not able to do anything about it, even if you disagree with the settled boundary position
The issue in the recent Court of Appeal case of White v Alder [10] was whether a boundary demarcation agreement binds successors in title and whether, if it can do so, it only binds them if they have knowledge of the agreement.
White
The Appellant, Mr White, and the Respondents, Professor and Mrs Alder are neighbours. Mr White is the registered freehold proprietor of "Willow Cottage" Fuller Street, Fairstead, Chelmsford and the Alders are the registered freehold proprietors of the property next door, "The Old Stores". They purchased their respective properties at about the same time. The Alders purchased The Old Stores on 2 November 2005 and Mr White purchased Willow Cottage on 11 November 2005.
On or about 18 October 2005 and no later than 22 October 2005, Mr White's predecessors in title, the Hobsons, and the Alders' predecessors in title, the Joneses, had orally agreed the location of the boundary between their respective properties. They also agreed that The Old Stores' owner owned the physical boundary features. The agreement was later recorded in writing in the form of some text and a plan. Mr. White alleged he was not aware of this. The agreement was not registered at HMLR.
Mr White demolished part of the boundary wall between the two properties and began constructing an extension to Willow Cottage. It was alleged that the wall and foundations of the extension and the temporary scaffolding for its construction trespassed on land forming part of The Old Stores. Further acts of trespass were also alleged and the Alders commenced proceedings seeking damages not exceeding £15,000 plus interest, an injunction requiring Mr White to remove goods trespassing on The Old Stores, a further injunction restraining Mr White from further trespassing on The Old Stores and declarations as to the position of the boundary between The Old Stores and Willow Cottage and that the boundary features belong to the Alders.
The Judge decided based on long-established principle that the boundary agreement existed and was binding on successors in title. Mr. White appealed and the Court of Appeal upheld the judge’s decision, rendering Mr. White liable in trespass as alleged, even though his position was he did not know of the existence of the boundary agreement.
The Court of Appeal explained both the legal and public policy justification for the binding effect of boundary agreements as between the parties to it, and successors in title without knowledge of the same, as follows:
- The consideration for the agreement is the substitution of certainty for uncertainty and the avoidance of the risk of future disputes
- Whilst parties may act upon the same e.g. by building a wall or erecting a fence, there is no need for anything more in order to render it binding as between the parties
- Such an agreement has proprietary effect and, as a result, also binds successors in title. It does so because of its very nature. It defines and delineates the boundary between the properties as from the root conveyance or transfer
- Such an agreement is, of its very nature, a delineation of the property transferred or conveyed and is so for all purposes
- As no one is able to transfer or convey more than they own, such an agreement effectively "binds" successors in title whether or not they have knowledge of it. It does so because it defines what they purchase
- In other words, a boundary demarcation agreement establishes on the ground the physical extent of the respective legal estates created by the conveyance or transfer. The boundary is presumed always to have been in that location
- In the case of registered land, upon registration the purchaser is deemed to be the proprietor of the registered estate: section 58 of the Act
- The boundary of that registered estate will, however, only be a general boundary unless exceptionally it has been determined under section 60 of the Act
- A general boundary does not determine the exact line of the boundary: section 60(2) of the Act and the exact boundary of registered land may, therefore, be established by a boundary demarcation agreement
- There is no need for knowledge or notice of a boundary demarcation agreement on a successor in title’s part because, it is neither an equitable interest for the purposes of unregistered conveyancing nor an overriding interest for the purposes of registered land. It clarifies the border or boundary between the properties shown in the conveyance or transfer
- A boundary demarcation agreement is an act of peace which should be encouraged. It does not undermine the formalities for the transfer of land because its purpose is not to effect such a transfer. Where trivial amounts of land are transferred it avoids the disproportionate expense of a survey and avoids the preparation and execution of a written contract (public policy) [11]
Discussion
Whilst someone who purchases registered land with an undefined boundary is arguably in as uncertain a position as someone who purchases it without knowing that the previous owners had agreed between themselves the boundary, it might be considered unpalatable to be bound by an agreement to which you were never party, particularly if you disagree with the settled boundary position. That is certainly not the norm in our law of contract, even if the present position accords with the policy of English property law.
Further, whilst a boundary demarcation agreement may be an act of peace, if a purchaser of property had prior notice of such an agreement, they may of course never commit ‘an act of war’ (to borrow the analogy).
Achieving Greater Certainty and Conclusion
It might be argued that a better balance at achieving greater certainty on the land register as to the extent of what is owned, is to make boundary demarcation agreements subject to compulsory first registration under section 4 of the Act and to make it mandatory for a would-be adverse possessor to make their application to be registered proprietor within a defined window of time, failing which any such alleged right is extinguished. [12]
Although the Act has made the conveyancing process more efficient overall, it is arguably at too high a price when it comes to certainty as to the boundary position of your property. Very arguably, the situation was anything but ‘pleasant’ for Ms. Nagra and Mr. White.
That stated, the land register does not purport to guarantee the extent of what owners, own. A position which is contrary to one of the fundamental objectives of the Act, that the register should be a complete and accurate reflection of the state of the title of the land at any given time. This clearly has not been met and it may be that the fallout is sufficiently few and far between, to be tolerable.
Of course, steps can be taken to mitigate uncertainty which may absolve parties of the need for future litigation. Pre-contract enquiries should obviously include whether there have been any boundary disputes between neighbours and whether any unregistered boundary agreements exist, which have settled previously uncertain boundaries (not forgetting that such agreements may be concluded verbally).
Further, if the boundaries have not been fixed by HMLR or an agreement reached between predecessors in title, subject to considerations of expense and the importance of possibly later disputed boundaries, it may be sensible to instruct a surveyor prior to purchase on where that boundary likely lies. Such report would likely be admissible in later civil proceedings without permission of the court, since the expert would not have been instructed for the purpose of such proceedings [13], but it would not be determinative. That is for a judge.
If you are experiencing issues with a neighbouring owner as to the extent of the property you own, uncertain boundaries or relating to adverse possession and whether you may acquire title on that basis or may be vulnerable to such acquisition, please contact our Property Litigation team. We have considerable experience in advising clients on all these issues and others and would be delighted to have an initial discussion.
[1] Paragraph 10 of the Explanatory Notes to the Act
[2] Certain transactions will trigger compulsory first registration under s.4 of the Act
[3] See Newey LJ’s citation of such history in Clapham v Nagra [2024] EWCA Civ 1388 ‘Clapham’, para 32)
[4] Para 33, Clapham
[5] Para 45 of Clapham
[6] Unlike the system with unregistered land, by which the paper owner’s title is extinguished after the requisite period of 12 years’ worth of adverse possession (factual possession and intention to possess)
[7] The facts can be found at paras 5 to 7 of Clapham
[8] Para 10 of Clapham
[9] This was because at the time title to Brook Barn was registered, the same had already been extinguished by a good adverse possession claim as it applied to unregistered land, when there is no need to perfect such claim by registration
[10] [2025] EWCA Civ 392 “White”
[11] Paras 53 to 60 of White
[12] Neither of which is the case - see Schedule 6 of the Act and the discretionary basis upon which an applicant under the same can make such application, though there may be prejudice to them in not doing so
[13] Civil Procedure Rules Part 35.2 (1)
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