Flack v Lanzante

A boundary agreement may settle or forestall uncertainty about the precise line of a boundary. It does not require an existing dispute. Where title documents leave the boundary uncertain, agreement on the ground may determine the parties’ parcels and be binding without writing or registration as an estate contract. Mutual consideration is present where each party accepts the agreed line. An agreement may identify the boundary shown by the documents without constituting a contract to convey land. On procedural fairness, legal consequences need not be separately pleaded where the underlying factual issue was pleaded and adequate notice was given. An adjournment should be sought if further preparation is required.

The claimant conveyed part of her land to the defendant, reserving a right of way. The conveyance plan did not precisely define the boundary. The parties later agreed the position of a fence and wall, and the defendant spent money constructing the wall.

Years later, the claimant alleged that the wall and fence encroached on her land. The County Court held that there was a binding boundary agreement and, alternatively, that the claimant was estopped from resiling from it. The claim was dismissed. The claimant renewed her application for permission to appeal, challenging the pleading of the boundary agreement, the legal basis for such an agreement, and the findings concerning detriment and equitable relief.

1. Permission refused. The Court of Appeal held that none of the proposed grounds had a real prospect of success.
2. The issue whether the parties agreed the position of the wall and fence was raised by the pleadings. The legal consequences of the agreement did not require separate pleading. The claimant had four days’ notice that a boundary agreement would be relied upon and did not seek an adjournment. There was therefore no procedural unfairness.
3. A binding boundary agreement does not require an extant boundary dispute. An agreement may forestall a dispute where the title documents leave uncertainty about the boundary line. Mutual consideration exists where that uncertainty is removed by agreement to a precise line.
4. The conveyance plan was insufficiently precise. The parties’ agreement on the ground could therefore identify the boundary and bind them. The court accepted the distinction drawn in Neilson v Poole between an agreement which identifies the boundary described in the title documents and one which involves concessions and amounts to a contract to convey land.
5. The judge’s factual findings placed the agreement in the identifying category. There was no real prospect of establishing that the agreement involved a conscious transfer of land. The court did not need to decide the separate arguments concerning detriment or the form of equitable relief.
6. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): permission to appeal refused from the decision of His Honour Judge Thompson in the Aldershot County Court sitting at Basingstoke on 15 May 2002.