Facts
The Appellant and the Respondents were neighbours.
The Appellant was the registered, freehold owner of Willow Cottage. The Respondents were the registered, freehold owners of the next door property, The Old Stores. In November 2005, the respective properties were purchased.
In October 2005, the Appellant’s predecessors in title, and the Respondents’ predecessors in title, orally agreed the location of the boundary between their respective properties. The agreement was recorded in writing by way of text and a plan (“the Boundary Agreement”).
In 2016, the Appellant (or others on his behalf) demolished a part of the boundary wall between the properties, and began to construct and extension to Willow Cottage. It was alleged that the wall, foundation and temporary scaffolding trespassed on land forming part of The Old Stores.
In 2020, the Respondents issued proceedings for damages, interest, an injunction requiring the Appellant to remove goods trespassing on The Old Stores, a further injunction restraining the Appellant from further trespassing on The Old Stores, and declarations as to the position of the boundary between The Old Stores and Willow Cottage.
First instance
The District Judge made three findings.
First, the Boundary Agreement was reached before the sale of Willow Cottage to the Appellant, and The Old Stores to the Respondents.
Secondly, the Boundary Agreement clarified an uncertain boundary; it was not a contract to convey land.
Thirdly, Boundary Agreement bound the Appellant, and the Respondents, as successors in title.
First appeal
The Circuit Judge dismissed the Appellant’s appeal.
On first appeal, it was held that the Boundary Agreement was binding on successors in title to the parties to that agreement.
Second appeal
Snowden LJ granted permission to bring a second appeal.
There was a realistic prospect of establishing that the Circuit Judge was wrong to find that the Boundary Agreement was binding on the Appellant as a successor in title to Willow Cottage, regardless of whether the Appellant had any knowledge of it when he acquired the property.
The Appellant submitted that boundary agreements do not bind successors in title, they do not have proprietary effect, and when they do bind successors in title an additional factor is present, such as adverse possession or estoppel.
In any event, it was inequitable and unfair that successors in title should be bound in absence of knowledge. If boundary agreements did bind successors in title, they should do so only where the successor has knowledge or notice.
The Respondents submitted that binding precedent, and compelling policy reasons, supported the proposition that boundary agreements have proprietary effect, and bind successors in title.
Discussion
Asplin LJ (with whom Zacaroli LJ and Sir Launcelot Henderson agreed) gave the leading judgment.
There are two types of boundary agreement.
First, to move a boundary, so as to transfer land from one neighbour to another, and which are subject to the formalities necessary for the transfer of land.
Secondly, “boundary demarcation agreements” which define a previously unclear or uncertain boundary, even if they include the conscious or unconscious transfer of a trivial amount of land.
Boundary demarcation agreements bind the parties to it.
The consideration for a boundary demarcation agreement is the substitution of certainty for uncertainty, and the avoidance of the risk of future disputes. It is not necessary to act upon them before they become binding. For example, by building a wall, or erecting a fence.
Boundary demarcation agreements have proprietary effect. They bind successors in title because of their very nature by defining and delineating boundaries between the properties as from the root conveyance or transfer.
As no one is able to transfer or convey more than they own, a boundary demarcation agreement binds successors in title, whether or not they have knowledge of it, 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.”
Whether registered or unregistered land, “if the extent of the land owned by the vendor has been conclusively established by a boundary demarcation agreement, the purchaser cannot acquire title to more land than was owned by the vendor. 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 those parcels when they are transferred to a successor in title.”
“Although a boundary demarcation agreement which is implied may be more difficult to prove than an express agreement, there is nothing to suggest that the underlying principle should be different. In just the same way, the agreement defines the parcel of land and as a result, defines what is transferred to a successor in title.”
Furthermore: “A boundary demarcation agreement 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. It does not turn on knowledge”.
Finally: “A boundary demarcation agreement is an act of peace which should be encouraged. It avoids uncertainty and the risk of litigation. It does not undermine the formalities for the transfer of land because its purpose is not to effect such a transfer.”
Disposal
A boundary demarcation agreement binds successors in title.
Successors do not need knowledge for it to bind.
The appeal was dismissed.
To read the full judgment please click here.
Written by Dominic Bright.
Commercial. Construction. Property.