This article is the third of a 4-part series dealing with Property Boundaries, and discusses the different types of Boundary Agreement, i.e. formal agreements and informal agreements. The article explains the difference between the two, and provides a template for an Informal Boundary Agreement. The articles in this series will help you to understand every aspect of Boundary Disputes in England and Wales. Articles 1-4 can be read by selecting the page tab above the heading of this page.
There are two types of boundary agreement, i.e. a formal boundary agreement, which is professionally created, executed as a Deed by the parties thereto, and includes an attached Plan that has been drawn by a surveyor in accordance with the Land Registry's plan requirements. The other is an informal boundary agreement, which has less stringent requirements. Each are described below.
Informal Boundary Agreement
Where there is uncertainty of the precise line of a boundary the adjoining owners can agree between themselves as to where they think the boundary is. Their agreement can be noted in a memorandum, and a detailed plan or drawing can be attached to it. No part of the property will actually be conveyed or transferred to either party, they simply agree where the boundary should be, and are noting their agreement in the form of a memorandum.
Provided the memorandum is consistent with the available evidence (the Land Registry documents) this will be acceptable to the Land Registry who will normally agree to note the memorandum on the respective title registers.
In 2012, in the case of Yeates and another -v- Line and another the Court of Appeal held that as no property was conveyed or transferred, an informal boundary agreement did not have to comply with the provisions of the Law of Property (Miscellaneous Provisions) Act 1989, which meant the memorandum did not have to be prepared as an executed deed or in the form of a contract. There are no formal requirements for its preparation and so there is no need to employ the services of a surveyor. The memo and plan must, however, be as clear and as accurate as possible.
Although the agreement does not necessarily need to be in writing it is certainly wise to do so, and would, in any event, be a requirement of the Land Registry if it were to be noted on the Registers.
Each neighbour should consent to the agreement, and it therefore makes sense for the agreement and the plan to be signed by each party. The written agreement should make it clear that no property is to be transferred or conveyed, but that the agreement is made to confirm what they believe to be the boundary, as "an act of peace, quieting strife and averting litigation", as Megarry J said in Neilson -v- Poole 1969.
This was confirmed in the case of Joyce v Rigolli 2004. The Court of Appeal stated that where the purpose of an informal boundary plan was to confirm the position of a boundary line, even though the formal provisions as to execution as a deed have not been complied with, and even though the parties intended there to be an actual transfer of a trivial area of land, then section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (execution as a Deed, etc) will not apply. Cited in this case where the further cases of Scarfe v Adams 1981 and Kingston v Phillips 1978.
Once the agreement and plan are signed by each party it can then be forwarded to the Land Registry with an application to note it on the title registers. The agreement will not be legally binding but it is persuasive evidence that would be difficult to overturn.
The agreement can be formalised at a later date, if required, on application to the Land Registry for a determined boundary.
When to use an Informal Boundary Agreement
The following are some examples:
- To confirm the boundary passes along the centre line of a hedgerow.
- To confirm it passes on the side opposite the supports of a wooden fence (the legal presumption is that it would pass on the side that does contain the supports).
- To confirm that the boundary runs along an old wire fence rather than a new wooden fence running alongside it.
Noting the Agreement at the Land Registry
When the memo and plan are signed an application on Land Registry form AP1 is made pursuant to Paragraph 5 of Schedule 4 of the Land Registration Act 2002, to bring the Register up to date. The Land Registry fee of £40 must be paid by each applicant (each neighbour).
Template for an Informal Boundary Agreement
If you would like to use our template for an informal boundary agreement, please click the link below to download the file in PDF format.
Informal Boundary Agreement
Formal Boundary Agreement
Before an application can be made to the Land Registry for a Determined Boundary, i.e. a formal boundary agreement, it is necessary that the boundary position be already agreed and not in any way contrary to the contents of any of the documents registered at the Land Registry. Once it is then an application is made to the Land Registry on Form DB.
You will need to provide a detailed plan with your application, identifying the exact line of the boundary. The plan must show sufficient physical features to allow the general position of the boundary to be drawn on an OS map. There should also be an accurate verbal description of the boundary, to assist with the plan identification.
The plan should be prepared by a surveyor proficient in Land Registry practice, who should follow their requirements as set out in Practice Guide 40.
Following a successful application the Land Registry will determine the boundary and update the Register and Plan accordingly. The boundary will no longer be a general boundary as defined in section 60 Land Registration Act 2002, but a fixed and determined boundary.
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