Charalambous v Welding

A boundary agreement between neighbours may be informal and may be inferred from conduct, including planting or fencing, but the evidence must establish an agreement about the boundary. An arrangement for landscaping or garden maintenance does not, without more, alter the parties’ titles. The distinction between clarifying an uncertain boundary and fixing a different boundary remains important: the latter may require writing. On appeal, findings as to whether an agreement was made are factual. The appellate court will not reassess the evidence merely because another view is possible; intervention requires a finding unsupported by the evidence, or reached while ignoring relevant evidence. A trial judge is entitled to reject inconsistent evidence and to find that later conduct reflected a mistaken understanding rather than a binding boundary agreement.

The appellant owned 15 St Jude’s Walk and the respondent owned the adjoining property at 14 St Jude’s Walk. The parties disputed whether landscaping carried out by their predecessors created a boundary different from the line indicated by the Land Registry and developers’ plans.

His Honour Judge Harrington found that there had been no express or implied agreement defining or altering the boundary. The appellant challenged that factual finding, arguing that the landscaping plan, planting and subsequent conduct established a binding boundary agreement. The central issue was whether the finding could properly be disturbed on appeal.

Appeal dismissed. Lord Justice Stanley Burnton gave the leading judgment, with which Lord Justice Ward agreed.

1. The agreed evidence of the surveyors established the boundary line shown by the Land Registry plan, as clarified by the developers’ plans, unless the predecessors in title had agreed a different line.
2. A boundary agreement between neighbours may be entirely informal. It may be evidenced by planting, fencing or other conduct marking the line, and may be inferred from the parties’ conduct. Whether such an agreement was made is a question of fact. Whether an agreement binds successors in title is a separate issue.
3. The court identified a distinction between an agreement which merely clarifies an uncertain boundary and an agreement which fixes a boundary irrespective of the parties’ existing titles. The latter type of agreement would have to comply with applicable statutory writing requirements.
4. The appeal court did not hear the evidence at first hand. The appellant therefore had to show that the judge’s finding of no boundary agreement was unsupported by the evidence or that relevant evidence had been ignored. That high threshold was not met.
5. The judge was entitled to accept Mrs Pratt’s evidence that the arrangement concerned landscaping and garden maintenance rather than the legal boundary. The earlier reference to a tacit understanding did not establish discussion or agreement about the boundary. Mr Pearson’s evidence was inconsistent and insufficiently clear, particularly as his later emphasis on the pyracantha bush differed from his earlier account of a line of shrubs.
6. Subsequent conduct could be probative of the parties’ intention, but the occupants’ mistaken understanding of the boundary did not establish a firm agreement. The unexplained prominence of the pyracantha did not justify replacing the boundary shown by the title documents. The trial judge was entitled to reach his conclusion.

The formal order was: appeal dismissed.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 1578, the court dismissed the appeal and upheld the factual finding that no binding agreement had altered the boundary.
2. Gloucester County Court: His Honour Judge Harrington found that there had been no express or implied oral agreement defining or altering the boundary between the properties.