“The Bible tells us to love our neighbours, and also to love our enemies; probably because generally they are the same people.”
G.K. Chesterton
If both you and your neighbour have read Part 2 of this series of articles and have reached a sensible agreement as to the line of the boundary, what can the parties then do to formalise that agreement?
The main options are to:
- Enter into a boundary agreement;
- Have a determined boundary.
Boundary Agreement
A boundary agreement can be relatively simple. It need not be even be in writing. However, in order to prevent future disputes it would be advisable to both record the agreement in writing and to have it registered against the respective titles at the Land Registry.
There is a rebuttable presumption that a boundary agreement does not convey land, i.e., it does no more than identify on the ground what the documents describe in words or delineate on plans. Accordingly it does not have to be registered, nor does it have to be in writing pursuant to section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. See Neilson v Poole (1969) 20 P&CR 909, Joyce v Rigolli [2004] EWCA Civ 79.
On the other hand, if one party agrees a concession in one place in return for a concession by the other party in another place in order to straighten a boundary line, then there clearly would be conveyances of land which would need to be in writing and registered.
However, where there is a trivial disposition of land made pursuant to an informal agreement of the demarcating kind, then it need not be in writing. See Joyce v Rigolli where one party gave up a small triangle of land around a cherry tree. The court reasoned that the piece of land would be difficult to define without the disproportionate expense of a survey. Further to make the validity of a boundary agreement dependent on the preparation and execution of a written contract would be contrary to the important public policy in upholding boundary agreements, namely that such an agreement is “in its nature, an act of peace, quieting strife and averting litigation, and so is to be favoured in the law” (per Megarry J, Neilson v Poole).
In the case of Drake v Fripp [2011] EWCA Civ 1279 the Court of Appeal held that a strip of land totalling 1.5 acres fell within the scope of the general boundaries rule. Accordingly, if there had been an agreement between the parties as to where the boundary line lay, it would have been a demarcation agreement rather than a conveyance.
If both properties are registered the parties can apply to have the agreement noted on the register. The registrar has the power to alter the register of title for a number of purposes, one of which is “bringing the register up to date” – paragraph of Schedule 4 to Land Registration Act 2002. An application must be made in form AP1.
Both the agreement itself and the application can be relatively straightforward. This has the benefit of resolving the matter both for the current parties and for their successors in title.
Determined Boundaries
As we have established, pursuant to s. 60 of the Land Registration Act 2002 the boundary of a property is a general boundary unless shown as determined. A determined boundary shows the “exact line of the boundary of a registered estate”.
It should be made clear that the Land Registry is not there to resolve a dispute as to where the exact line of the boundary runs. Instead, provided the relevant parties have adduced the correct evidence, then the Registry will register the particular boundary as determined.
The application is made on Form DB. The registrar must then decide whether they are satisfied that:
- The plan identifies, or the plan and verbal description identify, the exact line of the boundary claimed;
- The applicant has shown an arguable case that the exact line of the boundary is in the position shown; and
- The registrar can identify all the owner of the land adjoining the boundary and has an address at which owner may be given notice.
If the registrar is satisfied on these three points, he/she must give notice of the application to the adjoining owners unless the application includes an agreement in writing with the adjoining owner(s) as to the exact line of the boundary or there is a court order determining the exact line of the boundary.
In Supplement 2 of its Practice Guide 40 the Land Registry has set out the requirements applicable to any plan supporting an application to determine a boundary. In particular, it must be drawn to a stated scale (preferably no smaller than 1:200); any measurement must be accurate to +/- 10mm, be taken horizontally (i.e. not down a slope), and be taken from at least 2 defined points on surrounding permanent features. It is recommended that the plan be prepared by a chartered land surveyor or other suitably qualified professional.
The requirements of determining a boundary are clearly much more exacting than a simple boundary agreement, and there is no doubt that the preparation of the application is going to be more expensive. It may seem that such precision is unnecessary, but I have been involved in boundary disputes where the parties have been arguing over differences in the boundary line of less than 3 cms. In those circumstances a determined boundary may well be the preferred choice.
Although the Land Registry guide refers to an application being made by just one party, in my opinion the better course is to only use the procedure once the parties have reached an agreement as to where the boundary line should lie.
Conclusion
Both the boundary agreement and determination provide means of establishing the boundary line both for the current owners and for their successors in title. The boundary agreement is the more straightforward, simple, and cheap option. The determination is a more involved and expensive process. However, where precision is needed, it would be the recommended alternative.
If you would like to remind yourself of the first two parts of this article series on boundary disputes feel free to read them here:
Introduction to Boundary Disputes – Establishing the boundary
Boundary Disputes part two – Using the Boundary Disputes Protocol
This is not legal advice; it is intended to provide information of general interest about current legal issues.
If you wish to discuss this or any other matter related to property litigation please contact Caroline Knowles-Ley on caroline.knowles-ley@cognitivelaw.co.uk or call on 01243 943203.
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