The Appeal in WHITE v ALDER (2025) EWCA Civ 392 is concerned with whether a boundary agreement binds successors in title and whether, if it is capable of doing so, it binds them only if they have knowledge of the agreement. Asplin LJ considered the relevant authorities at paras 21-53 inc. She concluded:-
- Where does that leave us? Drawing all of the authorities together, it seems to me that … there are two types of boundary agreement. The first is an agreement the purpose of which is to move a boundary so as to transfer land from one neighbour to another. That first type is subject to the formalities necessary for the transfer of land. The second type is an agreement, the purpose of which is to define a previously unclear or uncertain boundary, even if it includes the conscious or unconscious transfer of a trivial amount of land. It is presumed that the land transferred is trivial unless the presumption is rebutted. This second type, a boundary demarcation agreement, binds the parties to it … The consideration for the agreement is the substitution of certainty for uncertainty and the avoidance of the risk of future disputes. Although in many cases, the parties will act upon the agreement, for example, by building a wall or erecting a fence, there is no need for anything more in order to render it binding as between them …
- Such an agreement has proprietary effect and, as a result, also binds successors in title. It does so because of its very nature. It defines and delineates the boundary between the properties as from the root conveyance or transfer. Such an agreement is, of its very nature, a delineation of the property transferred or conveyed and is so for all purposes. As no one is able to transfer or convey more than they own, such an agreement effectively “binds” successors in title whether or not they have knowledge of it. It does so because it defines what they purchase. … a legal boundary does not move because the land is subsequently conveyed or transferred. The boundary demarcation agreement is ancillary to the conveyance or transfer. … a boundary demarcation agreement establishes on the ground the physical extent of the respective legal estates created by the conveyance or transfer. The boundary is presumed always to have been in that location.
- In the case of unregistered land, a vendor cannot convey to a purchaser more land than he owns. In the case of registered land, upon registration the purchaser is deemed to be the proprietor of the registered estate: Section 58 of the Land Registration Act 2002 (LRA 2002). The boundary of that registered estate will, however, only be a general boundary unless exceptionally it has been determined under Section 60(1) LRA 2002. A general boundary does not determine the exact line of the boundary: Section 60(2) LRA 2002. The exact boundary of registered land may, therefore, be established by a boundary demarcation agreement.
- In either case, the extent of the land owned by the vendor has been conclusively established by a boundary demarcation agreement, the purchaser cannot acquire title to more land than was owned by the vendor. If the effect of a boundary agreement is to define the extent of the parcels of land owned by the parties to it, it must logically continue to define the extent to those parcels when they are transferred to a successor in title.
- Although a boundary demarcation agreement which is implied may be more difficult to prove than an express agreement, there is nothing to suggest that the underlying principle should be different. In just the same way, the agreement defines the parcel of land and as a result, defines what is transferred to a successor in title. …
- None of the authorities, including those concerned with successors in title, turns upon or for that matter, makes mention of whether the person seeking to avoid the effect of the boundary agreement had notice or knowledge of it. That is not surprising. A boundary demarcation agreement is neither an equitable interest for the purposes of unregistered conveyancing nor an overriding interest for the purposes of registered land. It clarifies the border or boundary between the properties shown in the conveyance or transfer. It does not turn on knowledge, therefore.
- All of this is consistent with … public policy. A boundary demarcation agreement is an act of peace which should be encouraged. It avoids uncertainty and the risk of litigation. It does not undermine the formalities for the transfer of land because its purpose is not to effect such a transfer. … where trivial amounts of land are transferred it avoids the disproportionate expense of a survey and avoids the preparation and execution of a written contract which would be contrary to … It also avoids the time and expense involved in making a formal application for the determination of the exact line of a boundary pursuant to Rules 118 and 119 of the Land Registration Rules 2003.
- It seems to me, therefore, that public policy favours the binding nature of boundary demarcation agreements and that the uncertainties which might arise as to the existence of the agreement are no greater than the uncertainties surrounding the effect of the root conveyance itself. The difficulties in proving a boundary demarcation agreement, even if it is implied rather than express, are likely to be fewer than those encountered in delving back to the original conveyance.
- It follows that in my judgment, as a result of the very nature of a boundary demarcation agreement, a successor in title is bound by it even if they had no knowledge of it …”