‘I do not… accept that the days are gone when a party can litigate over a tiny strip of land, although I would certainly agree that it is usually economic madness to do so, but a person remains entitled in law to protect and preserve that which is his or hers.’

So said Judge Simon Barker QC, sitting as a High Court judge, at the end of a four-day trial to determine a disputed boundary in Acco Properties Limited v Severn [2011] EWHC 1362 (Ch). Although the case did not involve any new principle of law, it is a useful summary of the principles to be applied in disputes of this nature and also a rare example of a decision based on an informal boundary agreement.

The judge helpfully summarised the principles which apply in the determination of boundary disputes:The judge went on to apply these principles. In addition to the conveyance, he considered the extrinsic evidence comprising a hedgerow, the front boundary wall and pier, a raised bank, the electricity meter housing, the electricity cable poles and telegraph poles, a chainlink fence, and subsequent user and conduct (including the first defendant’s ‘SAS’ tattoo - read paragraph 54 of the judgment to find out why). He conducted a site inspection, viewed photographic evidence and Ordnance Survey plans, and heard evidence from expert surveyors for each party. He determined the line of the boundary and, by way of check, asked what the reasonable layman would have thought he was buying.

  • For registered land, the file plans usually show only general boundaries and not the exact line of the boundaries.
  • Ordnance Survey plans are usually no more than a general guide to boundary features and should not be scaled up to delineate an exact boundary.
  • The starting point is the language of the conveyance, aided by the conveyance plan, or guided by the plan if it is stated as being definitive.
  • If the conveyance does not bring clarity, recourse may be had to extrinsic evidence, such as features which existed at the time of the conveyance.
  • Admissible extrinsic evidence may include evidence of subsequent conduct if this is probative of what the parties intended.
  • Evidence of features post-dating the conveyance may or may not be relevant.
  • It is important to bring certainty to the boundary, rather than leaving it ‘fuzzy at the edges’.
  • Where a boundary line can be determined by reference to a conveyance, other evidence may establish a different boundary as a result of adverse possession.
  • An informal boundary agreement need not be in writing, because it demarcates an unclear boundary rather than transferring an interest in land.
  • Boundary agreements are usually oral, but can be inferred or implied.
  • The court must also have regard to what a reasonable layman would think he was buying.

Having determined the boundary, the judge went on to consider whether there was a boundary agreement. He referred to the decision of the Court of Appeal in Stephenson v Johnson [2000] EG 92, another boundary dispute which had occupied a court for four days.

The Court of Appeal dealt with the question of informal boundary agreements and referred back to the words of Megarry J in Neilson v Poole [1969] P&CR 909: ‘A boundary agreement is, in its nature, an act of peace, quieting strife and averting litigation, and so is to be favoured in the law… many boundary agreements are of the most informal nature.’

The Court of Appeal held that it was necessary to look at the parties’ course of conduct and decide whether there was an agreement, without strictly needing to find an offer and acceptance. They rejected a submission that the law should not strive to find boundary agreements.

Judge Barker QC stated that he did not have to strive very hard to find that there had been an informal boundary agreement resulting from a meeting at which the boundary was discussed sufficiently for the defendants to understand that when cutting down two trees, those trees were on their land. The resulting boundary line could, by inference, be extended as a straight line. This boundary line took precedence over the line which he had determined by reference to the extrinsic evidence.

In practice, this means that any consideration of a disputed boundary will be a multi-layered exercise. The court will start by considering the conveyance pursuant to which the boundary was created. Any plan attached to the conveyance will be of particular significance if the property is said to be ‘more particularly described in the plan’. If the position of the boundaries can clearly be established from the conveyance, no further evidence can be considered on that issue, unless there is a claim for rectification of the conveyance.

If the position cannot be clearly established, the court will move on to look at the extrinsic evidence, including the subsequent conduct of the parties. That may require a very detailed analysis of documents, plans, photographs (including aerial photographs), expert surveying and cartographic evidence, and witness evidence.

A boundary which is thus fixed may nonetheless be subject to an informal boundary agreement, which again will require an analysis of the parties’ conduct and evidence. The boundary may also be subject to a claim that the neighbour has acquired title to the land by adverse possession, pursuant to section 8 of the Limitation Act 1980 and subject to the requirements of the Land Registration Act 2002. The requirements for adverse possession were extensively reviewed by the House of Lords in J A Pye (Oxford) Ltd and others v Graham and anor [2002] UKHL 30 (in which they stated that much confusion and complication would be avoided if in future reference to ‘adverse possession’ were avoided as far as possible; despite this, reported cases thereafter continue to refer extensively to adverse possession). This again requires an extensive consideration of the parties’ words, actions and intentions, and the recent decision of the Court of Appeal in Zarb and anor v Parry and anor [2011] EWCA Civ 1306 illustrates this.

All of this shows why litigation over disputed boundaries can be so complex and expensive, often (in the words of Judge Barker QC) ‘economic madness’. It is one area of litigation where emotions (as well as costs) run particularly high. Given the uncertainties involved in most disputes of this type, alternative dispute resolution should be of great attraction. If settlement is not possible, the parties should be ready to deal with all issues arising, from A(cco) to Z(arb).

District Judge Graeme Smith sits at Manchester Civil Justice Centre. He is a contributor to Civil Court Service