Boundary Agreements

Introduction

There are 2 types of Boundary Agreements:

Informal Boundary Agreement
Formal Boundary Agreement

Informal Boundary Agreement

Adjoining property owners may agree between them where the line of a legal boundary should run, and may record this in the form of a written memorandum and an attached detailed plan. No part of either property is actually conveyed or transferred to either party, but the parties merely agree between themselves where the boundary should be. Such a memorandum is sufficient so long as the agreement is consistent with the available evidence.

In the leading case of Yeates and another v Line and another 2012 it was held that as no property is conveyed or transferred an informal boundary agreement does not have to be in the form of a contract or Deed. Therefore it can be prepared in the form of a memorandum attaching a detailed map. The map does not have to be prepared by a Land Registry proficient surveyor, although it should be as clear and accurate as possible. This means that it is a lot cheaper to resolve a boundary issue in this manner rather than by more formal means.

Thus an informal boundary agreement is usually a written document. Although the case of Yeates tells us it does not have to be in writing, if it is to be noted on the Land Registry Titles, it should be, and is in any event more logical to prepare it in writing and to sign it. It is prepared with the consent of each adjoining neighbour, and usually takes the form of a memorandum with an attached detailed plan. The Agreement makes it clear that no property is to be conveyed or transferred but that the parties are merely agreeing between themselves where the boundary lies (as "an act of peace, quieting strife and averting litigation" (Megarry J in Neilson v Poole 1969)). The memo and plan are signed by each party and sent to the Land Registry for them to note on the Title Register of each property.

Although the memo is not legally binding it is strongly persuasive authority for a subsequent purchaser. The Agreement can always be formalised at a later date, if required, e.g. by applying to the Land Registry for a Determined boundary.

Examples of when to use an Informal Boundary Agreement

This is a non-exhaustive list of examples. You will most likely think of many others.

To show that the boundary passes along the centre line of a hedge.
To show that it passes on the side opposite the supports of a wooden fence (rather than the presumptive case of the same side)
To show that the boundary runs along an old wire fence as opposed to a more modern wooden fence running close to it.

Once the memorandum has been completed and signed by the parties it should then be sent to the Land Registry for noting on the respective Title Registers in accordance with paragraph 5 of Schedule 4 to the Land Registration Act 2002, to bring the Register up to date. In addtiion to noting the register a copy of the agreed plan will be retained by the Land Registry and made available for anyone to obtain a copy should they wish to do so, e.g. the solicitors acting for a subsequent purchaser.

Formal Boundary Agreement

Once a boundary position has been agreed between the parties, whether recorded by memorandum or not, if it is desired to formalise the agreement and to make it legally binding then an application should be made to the Land Registry for a Determined Boundary. The application is submitted on Land Registry Form DB.

With your application you will need to include a plan identifying the exact line of the boundary. The plan should show sufficient surrounding physical features to allow the general position of the boundary to be drawn on an Ordnance Survey map. You should also include, in the plan, where the plan itself is not sufficient, a verbal description of the boundary.

The Land Registry have clear guidelines for the format of a plan supporting an application for a Determined Boundary. It is unlikely that a layman will be able to prepare a plan with these requirements, and with the further requirements of precision in measurements, i.e. accuracy to +/-10mm, taken horizontally (not along a slope) and taken from at least 2 defined points on surrounding physical features such as the corners of buildings. As per Land Registry Practice Guide 40:

The plan supporting an application to determine a boundary:

Must clearly show the extent of the boundary to be determined by suitable reference such as colouring or edging.
Must identify the start, end and any turning points of the determined boundary, preferably by way of lettered points.
Must clearly show sufficient surrounding detail to allow the general position of the boundary to be identified on the Ordnance Survey map, and show its orientation, for example, a north point.
Must be drawn to a stated scale - the preferred scale is no smaller than 1:200 and ideally no larger than A3 size (and if necessary more than one plan can be used).
Must describe the relationship with physical features where the boundary coincides with them - for example, on which side of the physical feature the boundary runs, or through which point of the physical feature the boundary passes.
Should describe those features used as points of reference in relation to the determined boundary, for example, "corner of the building" in the plan legend.
Must only include information and detail that is relevant - any superfluous information that could clutter the plan or possibly contradict the relevant information should be left off, and any co-ordinates shown on the plan that are not National Grid co-ordinates must be removed.
Must be signed by other owners where they have completed panel 9 of form DB.
Must not bear any statement of disclaimer or endorsement which casts doubt on the accuracy of the plan such as 'for identification purposes only'.

In practice, therefore, a chartered surveyor will usually be required to complete it.

It might also be necessary to include other documents, e.g. a Deed Plan, a statutary declaration or a survey report.

The Land Registry will require both parties to agree the boundary position before they will visit the property to see it for themselves. Form DB allows for both parties to sign their consent.

Once the Land Registry determine the boundary it becomes fixed, i.e. legally binding, and is no longer a "general boundary" within the meaning of Section 60 of the Land Registration Act 2002.