Boundary Issues

In the case of Gibson v New [2021] EWHC 1811 (QB), a boundary agreement between landowners is not binding on subsequent owners.

Case Notes

This is a potentially worrying case as the Court held that a Settlement Agreement, which incorporated an expert determination provision, amounted to a boundary agreement and the trial judge Murray J went on to say that that Settlement Agreement (and therefore the boundary agreement) does not bind successors in title and has no proprietary effect binding third parties...

The finding that a boundary agreement is personal to the contracting parties would mean that any boundary dispute which was resolved by way of a boundary agreement (either found to exist by the Court, or formed as a compromise) could be re-opened once one party to that boundary agreement sells their property.

In this case, two neighbours fell out over a boundary, then mediated, and came to a settlement agreement. The settlement agreement was that the mediator would select a land surveyor who would determine the boundary position. Both Owners would be bound by this determination.

Neighbour two was dissatisfied with the surveyor’s determination and his justification for this was the Inconsistent Boundary Point in Neilson v Poole. Here the trial judge Murray J decided that this type of boundary agreement had no proprietary character until adverse possession has moved the legal boundary.

Older cases such as Neilson v Poole and Joyce v Rigolli confirm boundary agreements may be treated as proprietary. The statements made obiter in Haycocks v Neville confirmed previous cases.

The decision in Gibson v New runs contrary to what was thought to be settled law.

The uncertainty generated by Gibson v New might lead to parties and their legal advisors to make determined boundary applications to the Land Registry.

Where a determined boundary application is opposed the Land Registry will refer the matter to the First Tier Tribunal and either the applicant or the party opposing the application might be liable for the costs of the other.

Practice Points

• In residential transactions check whether boundary sensitivity is an issue.
• If boundary sensitivity is an issue ensure client’s have realistic expectations and appreciate the problems in locating a legal boundary.
• A determined boundary application to the Land Registry is a means of identifying and recording a legal boundary but requires the consent of neighbouring landowners and a Land Registry compliant plan needs to be submitted with the application.