Darren White v Michael Alder & Anor

A boundary agreement whose purpose is to identify an unclear boundary, rather than to transfer land, has proprietary effect. It defines the physical extent of the estates conveyed from the root title and binds successors in title, whether or not they knew of it when purchasing.

Such a demarcation agreement is not an equitable or overriding interest. It is ancillary to the conveyance or transfer and establishes what land the vendor owned and could convey. A trivial consequential exchange of land does not alter its character. An agreement intended to move a boundary so as to transfer land, however, remains subject to the formalities governing land transfers.

The parties owned neighbouring freehold properties. Their predecessors had orally agreed, shortly before both properties were sold, the position of their common boundary and ownership of the physical boundary features. The agreement was later recorded in writing and on a plan.

Following alleged trespasses arising from building works, the respondents sought declarations, damages and injunctive relief. The district judge decided preliminary issues, finding that the agreement existed, merely clarified an uncertain boundary, and bound both parties as successors in title. HHJ Duddridge dismissed the appellant’s challenge to that conclusion, while granting permission to appeal on it.

The appeal concerned whether a boundary demarcation agreement binds a successor in title and, if so, whether the successor’s knowledge of it is required.

1. Appeal dismissed. The agreement was a boundary demarcation agreement. Its purpose was to identify an uncertain boundary, not to transfer land. A different category of agreement, intended to move a boundary in order to transfer land, is subject to the applicable land-transfer formalities.

2. A true demarcation agreement binds the original parties without any additional act, such as adverse possession or estoppel. Its consideration lies in substituting certainty for uncertainty and avoiding future disputes. A consequential transfer of a trivial area does not change its essential character.

3. The agreement also bound successors in title. By defining and delineating the parcels conveyed from the root title, it established the physical extent of the legal estates for all later transfers. It was ancillary to the conveyance or transfer, rather than an equitable interest or an overriding interest. A purchaser could not obtain more land than the vendor owned, so knowledge or notice of the agreement was immaterial.

4. This conclusion accorded with Neilson v Poole (1969) 20 P&CR 909. The contrary observations in Gibson v New [2021] EWHC 1811 (QB) were obiter and concerned the effect of a declaration enforcing a settlement agreement between its original parties. They did not alter the general law of boundary demarcation agreements.

5. It was unnecessary to decide whether the court had jurisdiction or should exercise discretion to admit the knowledge ground as a new argument. Had this been necessary, the court would have answered both questions affirmatively, but no remittal was required because knowledge was legally irrelevant.

• Court of Appeal (Civil Division): dismissed the appeal and held that the boundary demarcation agreement bound successors in title without knowledge: [2025] EWCA Civ 392.
• County Court at Chelmsford (HHJ Duddridge): refused permission on four grounds, granted permission on the ground concerning the agreement’s effect, and dismissed that appeal on 20 October 2023.
• County Court at Chelmsford (District Judge Mills): determined preliminary issues on 29 July 2022. The judge found that the agreement existed, clarified an uncertain boundary, and bound successors in title.