In this article, we look at the important decision in White v Alder [2025] in which the Court of Appeal confirmed that a boundary demarcation agreement will bind future owners, whether or not they have knowledge of it.
WolfBite - the key takeaways
• Boundary agreements can involve the transfer of land or they might merely demarcate the precise position of a previously uncertain boundary.• Boundary demarcation agreements bind the parties that enter into them.
• Until now, it was not clear that boundary demarcation agreements would bind future owners who had no knowledge of them.
• The Court of Appeal has confirmed that boundary demarcation agreements will bind successors in title whether or not they know about them.
• There is a strong public policy reason for this conclusion in encouraging parties to resolve disagreements between themselves and avoid the uncertainty and risks of litigation.
Two types of boundary agreement
When a disagreement arises between neighbours about the position of the boundary, it is not uncommon for the parties to reach an agreement between themselves.Generally, such boundary agreements fall into two categories.
Firstly, a boundary agreement might involve the transfer of land from one neighbour to the other. If so, the agreement will need to comply with certain formalities that apply to the transfer of land, and the transfer will need to be formally registered at the Land Registry.
Secondly, a boundary agreement might merely demarcate the position of a previously unclear legal boundary. Land Registry title plans will usually only show the “general boundaries” between properties, not the exact position, so it is possible for the parties to agree between themselves where the precise boundary is, and this will not involve the transfer of land from one party to the other.
There is a rebuttable presumption that a boundary agreement will fall into the second category. That is, in the absence of evidence to the contrary, the parties will be presumed to have intended merely to demarcate a boundary, not to transfer land.
Boundary demarcation agreements can be made in writing and can be noted at the Land Registry against the registered titles of the properties involved. However, they do not need to be made in writing, or recorded at the Land Registry, and can be made informally and even be implied from the actions of the parties (for example, if either of them acts upon an agreement by building a wall or erecting a fence).
There is no question that boundary demarcation agreements bind the actual parties to the agreement.
But what about those who purchase the properties from the original parties and subsequent owners (called successors in title)?
The Land Registry Practice Guide that relates to boundary agreements (which, at the time of writing, has still not been updated) says that “whether a boundary agreement will bind successors in title in all circumstances (in particular, in the absence of their knowledge of the agreement) does not appear to have yet been established”.
This was the question that White v Alder sought to answer.
What was the background to White v Alder?
The dispute related to two properties in the Essex countryside called Willow Cottage and The Old Stores.In October 2005, the then owners of Willow Cottage and The Old Stores orally agreed the location of the boundary between the two properties. It was also agreed that the owner of The Old Stores owned the physical boundary features. That agreement was later recorded in writing with a plan (Boundary Agreement). This was a boundary demarcation agreement because it sought to clarify an uncertain boundary, not to transfer land.
In early November 2005, very shortly after the Boundary Agreement was entered into, both properties were sold.
Mr White bought Willow Cottage.
The Alders bought The Old Stores.
Regrettably, Mr White was seemingly not told about of the Boundary Agreement when he purchased Willow Cottage.
In 2016, unaware of the Boundary Agreement, Mr White demolished part of the boundary wall and began to construct an extension.
The Alders alleged that the wall and foundations of the extension that Mr White was building trespassed on land belonging to The Old Stores, and that scaffolding had also been put on their land without consent.
There were further allegations of trespass in 2019.
In 2020, the Alders commenced Court proceedings seeking injunctions against Mr White.
The Alders were successful in the County Court, and Mr White appealed to the Court of Appeal.
In his appeal, Mr White argued that boundary agreements are not binding on successors in title generally, and that he was not bound by this particular Boundary Agreement because he did not have any knowledge of it before he acquired Willow Cottage.
What did the Court of Appeal decide?
The Court of Appeal, firstly, confirmed that boundary demarcation agreements bind successors in title to the original parties.Such agreements define and delineate the boundary between the properties, and of the property transferred. No one can transfer more than they own and so, by demarcating where the boundary is, the owners are defining what land it is that they own and, therefore, what they will transfer to future buyers.
The principle is the same whether the boundary demarcation agreement is in writing or implied from the actions of the original owners.
The Court of Appeal found, secondly, that boundary demarcation agreements bind successors in title even if they had no knowledge of it.
A boundary demarcation agreement clarifies the border or boundary between the properties shown in a transfer. It does not turn on knowledge; it therefore does not matter whether a subsequent owner has knowledge of it or not. Successors will only acquire what is transferred to them.
The conclusion that boundary demarcation agreements bind successors in title (whether or not they have knowledge) is also consistent with public policy. Such agreements are an act of peace. They are to be encouraged because they avoid the uncertainty and risk of litigation.
Comment
This case very helpfully clarifies that a boundary demarcation agreement will bind a successor in title whether or not they have knowledge of it.It is somewhat ironic that part of the policy reason underpinning this is because these types of agreement provide certainty and avoid the costs and risks of litigation, and yet the neighbours in this case have been involved in years of no doubt expensive court proceedings to have this confirmed.
It may be of little solace to Mr White, but the outcome of his appeal does provide clarity to other neighbours who may be in a similar situation now or in the future.
One point that is not mentioned in the Court of Appeal’s Judgment is why the Boundary Agreement was not disclosed to Mr White during the conveyancing process.
The timing of the Boundary Agreement, very shortly before both properties were sold, perhaps suggests that there was an issue with the boundary that the owners at the time, or at least one of them, wanted to resolve before their respective sales completed.
The Seller’s Property Information Form at the time also contained questions relating to the boundaries, including asking the seller to confirm who owned or accepted responsibility for the boundaries.
It is therefore unclear why Mr White was not made aware of the terms of the Boundary Agreement, if not provided with a copy of it, before completion.
We may never know.
Had the Boundary Agreement been disclosed, either directly to the buyer or by recording it in the individual property registers at the Land Registry, this dispute could have been avoided.
If you have an issue with a boundary, wish to discuss how you might go about resolving a boundary disagreement or require help recording a boundary agreement, please get in touch with legal director Estella Prince.
