Lines between lawns: White v Alder provides clarity on boundary agreements

The issue for the Court of Appeal in the recent case of White v Alder, was neatly summarised by Lady Justice Asplin; “This appeal is concerned with whether a boundary agreement binds successors in title and whether, if it is capable of doing so, it only binds them if they have knowledge of the agreement”.

Boundary demarcation agreements define the boundaries of the legal estate conveyed in a root conveyance or transfer. Boundary demarcation agreements may be required where the boundaries are unclear or uncertain.

Mr. White and Professor and Mrs. Alder, are neighbouring property owners in Chelmsford in Essex. Mr White and Professor and Mrs Alder purchased their respective properties just days apart in November 2005.

Just one month prior to the purchase of the properties by Mr White and Professor and Mrs Alder, their respective predecessors in title had entered into an oral boundary demarcation agreement, clarifying the boundary between their properties.

In 2016 Mr. White demolished part of a boundary wall and constructed an extension, allegedly trespassing onto the Alders land. Mr White said he had no knowledge of the boundary demarcation agreement made by their predecessors.

The County Court held that Mr White and Professor and Mrs Alder’s predecessors in title had reached the boundary agreement before the sale of the properties. The boundary agreement was an agreement to clarify the boundary position and was not a contract to convey land. The Court said that the agreement bound Mr White and Professor and Mrs White as successors in title.

Mr White argued on appeal to the Court of Appeal, that the boundary demarcation agreement did not bind successors in title, relying on the case of Gibson v New, or, in the alternative, that if such agreements did bind successors, then they should only do so if the successor had knowledge of the agreement.

Professor and Mrs Alder argued that boundary demarcation agreements have proprietary effect and bind successors in title, relying on Neilson v Poole. In the case of Neilson v Poole, two types of boundary agreement were identified:

• First, where the purpose of the agreement is to move the boundary so as to transfer land from one neighbour to the other – in which case the formalities of registration have to be complied with.
• Or secondly, where the purpose of the agreement is to define a previously unclear or uncertain boundary in order to establish on the ground what a root conveyance shows. Trivial slithers of land may be exchanged, but there is no conscious transfer of parcels of land and no formalities are required for the agreement to be binding.

The Court of Appeal in White held that boundary demarcation agreements define the boundaries of the legal estates conveyed in the root conveyance or transfer. By their very nature, they bind successors in title irrespective of knowledge, as they establish the true extent of the property acquired. This approach they considered was consistent with public policy favouring certainty and avoiding litigation. A boundary demarcation agreement is an act of peace and so should be encouraged.

White v Alder, raises some interesting issues for practitioners and clients to consider. What are the degrees of triviality of the amount of land being transferred that will differentiate an agreement to move a legal boundary (a transfer of land) from an agreement simply defining an unclear boundary position? and where does a seller stand when completing replies to standard enquiries, unaware that a previous boundary agreement exists?

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