Guidance

Practice guide 40: HM Land Registry plans, supplement 4, boundary agreements and determined boundaries

Updated 20 December 2019

Applies to England and Wales

Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. Introduction

Registration with general boundaries is sufficient for the majority of titles. However, there are occasions where an owner might require something more precise. There are 2 main ways to achieve this: entering into a boundary agreement or having a determined boundary.

It should be noted that the process of agreeing the boundary line with a neighbour, whether it is for the purpose of entering into a boundary agreement or for the purpose of having a determined boundary, can itself generate forceful differences of opinion, perhaps where none had previously existed. In some circumstances this could lead to a dispute about the boundary.

2. Boundary agreements

Two or more sets of owners may come to an agreement about the boundary between their properties. The agreement can deal with the position of the legal boundary, or the maintenance of a boundary feature (such as a hedge), or both. This supplement is concerned only with boundary agreements in so far as they deal with the position of the legal boundary.

For example, neighbours may agree that the legal boundary between their properties is the middle of a hedge (and that each will keep their side of the hedge below a certain height). Or there may be a post and rail fence and a brick wall running close together between 2 properties and the owners agree which of the 2 possible boundary features marks the legal boundary.

It is for legal advisers to advise their clients, in the particular circumstances, as to (i) whether or not a boundary agreement is appropriate for them, (ii) the form the agreement should take and (iii) whether or not to apply to have it recorded in the register. However, you may find the following comments helpful.

2.1 How boundary agreements work

There is a rebuttable presumption that a boundary agreement does not involve the transfer of any land, and that the agreed position coincides with the true position of the legal boundary. The presumption will not be rebutted merely because of “circumstances of doubt or uncertainty” as to whether or not the transfer of any land is actually involved. See Neilson v Poole (1969) 20 P&CR 909 at 918 and 919. However, it must be the case that where the agreed position differs from what is shown in a title plan, the agreement can only have identified the current position of the legal boundary if the agreed position is within the scope of the general boundaries rule: see practice guide 77: altering the register by removing land from a title plan.

Where, on the other hand, it is established that there is in fact a transfer of land involved then, subject to the possible requirement to be in writing (see A simple boundary agreement), the boundary agreement gives rise to an obligation on a party to transfer any of their land falling on the other party’s side of the agreed boundary, if called upon to do so: Neilson v Poole (1969) 20 P&CR 909 at 918 and 919.

In circumstances where there is clearly a transfer of land involved, the neighbours may wish instead (or following the boundary agreement) to ‘formally’ transfer or convey the land. Only then, on registration, will the transfer be effective at law – and this is so even if only a small or trivial amount of land is involved. This approach may be most appropriate where there has been a dispute between the neighbours and there is a desire to resolve the matter once and for all. It is almost certainly appropriate, whatever the relationship, where the agreed boundary involves the transfer of a substantial amount of land.

It seems settled that an “agreement to demarcate an unclear boundary is binding on the parties and binds successors”: Haycock v Neville [2007] EWCA Civ 78 at [25] and Neilson v Poole (1969) 20 P&CR 909. But whether a boundary agreement will bind successors in title in all circumstances (in particular, in the absence of their knowledge of the agreement) does not appear to have yet been established.

2.2 A simple boundary agreement

A boundary agreement which does not involve the conscious transfer of land, or in other words does not have a “disposing purpose”, falls outside the scope of section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989 – which is concerned with “a contract for the sale or other disposition of an interest in land”. As a result, such a boundary agreement does not need to be in writing in order to be enforceable: Haycock v Neville [2007] EWCA Civ 78 at [25]; Yeates v Line [2012] EWHC 3085 (Ch) at [29]. This is also the case where only “trivial transfers of land [are] consciously involved” and the de minimis principle applies: Joyce v Rigolli [2004] EWCA Civ 79 at [32]; [45]; Yeates v Line [2012] EWHC 3085 (Ch) at [30]. But it is obviously sensible to put the agreement into writing and for the parties to sign the document. The registrar is unlikely to proceed with an application to alter the register by recording a boundary agreement (see Recording a boundary agreement in the register) unless the applicant produces a copy of a signed agreement.

Where neighbours agree on the position of the legal boundary, there is no particular reason to doubt that this was the position of the legal boundary, and they want to try to stop any going-back on the agreement, particularly when one of the properties is sold, then it might be appropriate to have the agreement put into writing and recorded in the individual registers.

There is no prescribed form for a written boundary agreement, even where the land concerned is registered. The following shows the form that a simple boundary agreement might take where the properties concerned are both registered.

“Boundary Agreement

This agreement is made on 15th July 2014 between John Smith of 10 Acacia Avenue title to which is registered under title number XX12345 and Mary Brown of 12 Acacia Avenue title to which is registered under title number XX67891.

The parties agree that the legal boundary between the land within their respective registered titles and running from the point marked ‘A’ to the point marked ‘B’ on the plan attached is as shown by the red line drawn between those points.

Signed

[Witness (Signature, name and address)]

Signed

[Witness (Signature, name and address)]”

It would be sensible for both parties, and any witnesses, to sign and date the plan attached to the agreement. Generally speaking, the better the quality of the plan – and, in particular, the more precisely it shows the position of the legal boundary – the more helpful the agreement is likely to be to the parties and their successors in title. You may, therefore, wish to ensure that the plan complies with the guidelines in practice guide 40 supplement 2: guidance for preparing plans for HM Land Registry applications. But there will be cases where the particular circumstances mean that a more basic plan is sufficient.

This is not to suggest that a plan of some sort will always be necessary. In some cases it may be thought enough to identify the boundary in words alone. For example, the agreement might include a clause along the following lines:

“The parties agree that the legal boundary between the land within their respective registered titles is the centre line of the wall running between their properties.”

It would seem that a mortgagee will not generally need to be a party to a boundary agreement. Assuming that the presumption mentioned earlier in this section is not rebutted, then the agreed boundary will be taken to be the legal boundary of the mortgagor’s estate from the start – and so at the time the estate was charged. But the mortgagee’s involvement is a matter that you would need to advise your clients on, bearing in mind the clients’ particular circumstances.

2.3 Recording a boundary agreement in the register

Where neighbours agree on the position of the legal boundary, they want to try to stop any going back on the agreement (particularly when one of the properties is sold) and there is no particular reason to doubt that the agreed position is the position of the legal boundary, then it might be appropriate to have the agreement put into writing and recorded in the individual registers.

Where the position is the same but there is thought to be a transfer of a small piece of land involved, then the neighbours may again simply want to apply for the boundary agreement to be recorded in the register. They would be relying on their ability to enforce, if necessary, the obligation to transfer created by the boundary agreement.

The registrar has power to alter the register of title for a number of purposes, one of which is ‘bringing the register up to date’: paragraph 5 of Schedule 4 to the Land Registration Act 2002. So, unless all the property concerned is unregistered, a boundary agreement can be noted in the register. An application must be made in form AP1 for the register(s) of the relevant title(s) to be altered. Applicants should lodge a copy of the boundary agreement. The prescribed fee for applying to alter the register must be paid.

If the application is in order, an entry along the following lines will be made in the property registers of the registered titles involved:

“An agreement dated [date] made between [the parties to the agreement] relates to [the boundary concerned – eg the south western boundary] of the land in this title.

NOTE: Copy filed.”

If a registered chargee is not a party to a boundary agreement and its consent to the alteration is not lodged, we shall serve on the chargee notice that the entry has been made.

Unless determined under section 60 of the Land Registration Act 2002, the boundary of a registered estate as shown for the purposes of the register is a general boundary. Note that this is so even if there is a boundary agreement and it has been recorded in the register. The registrar is not in any way guaranteeing that the legal boundary is where the parties have identified it as being in the boundary agreement. If the parties want to ensure that the exact line of the legal boundary is shown for the purposes of the register, they should apply for a determined boundary.

3. Determined boundaries

The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under section 60 of the Land Registration Act 2002. Unlike a general boundary, a determined boundary shows “the exact line of the boundary of a registered estate”. The Act does not define “exact”.

HM Land Registry does not determine a boundary in the sense of resolving a disagreement as to where the exact line of the boundary is located. Instead, with the exact line having been identified, HM Land Registry will then make it apparent from the register that the boundary has been determined. Reference to the boundary concerned being a determined boundary is made in the property register of each affected title. The general position of the boundary will be marked on the title plan of each affected registered title, often with lettered points showing the extent of the boundary which is determined. A filed copy of the determined boundary plan (see below) is retained and can be referred to in order to identify the exact line.

It is not always possible for the owner to apply for a boundary to be shown in the register as determined. In particular, the applicant may be unable to produce the necessary evidence to establish the exact line of the boundary.

4. Applying for a determined boundary

The most obvious way to go about having a boundary determined is to apply for a determined boundary.

This option might be appropriate where there is agreement between the neighbours about where exactly a boundary lies. Sometimes there will be this agreement from the start. If not, the neighbours might jointly instruct an independent expert, as was done by the parties in Jones v Murrell [2016] EWHC 3036 (QB). In this case the court had to consider a boundary award made by a chartered surveyor jointly appointed by the parties to identify the position of the legal boundary. The letter of instruction recorded the parties’ agreement to be bound by the expert’s award. The court held that neither party could challenge the expert’s award merely on the basis that it might be mistaken. If the neighbours do not want to leave the matter at just getting the legal boundary identified by an expert, they might go further and agree to use the expert’s report to support an application for a determined boundary.

4.1 Preliminaries

The first step is for the exact line of the boundary to be identified from whatever evidence is available. It must be identified by way of a plan, or a plan and a verbal description, and the plan must show sufficient surrounding physical features to allow the general position of the boundary to be identified on the Ordnance Survey map. See Determined boundary plan requirements. Where the legal boundary is to be identified by an expert, they should be instructed to show this boundary on such a plan.

All the owners of the land adjoining the boundary must also be identified, together with an address at which each of them may be given notice. “Owners” means those with a legal estate in land (freehold or leasehold) or a registered charge.

Where the adjoining land is not registered the applicant will need to provide evidence of the adjoining owner’s documentary title. We need this to verify that this is indeed the owner of the adjoining land. We also need to check that the deeds contain no evidence showing the boundary in a different position. (Ideally the adjoining owner should lodge the original deeds under cover of a form FR1 and apply for voluntary first registration.)

Because of the general boundaries rule and the scale of title plans, it is possible that a third party may own land between 2 properties (for example, a drain), even though the red edging on the 2 title plans is adjoining. Applicants should note this possibility.

Once a registered proprietor has done all this, they are then in a position to make an application to the registrar for the boundary to be shown in the register as determined.

4.2 The application for a determined boundary

The application must be made on form DB. Only one application form is required, irrespective of the number of adjoining boundaries. A fixed fee is payable. Please see HM Land Registry: Registration Services fees.

On receipt of the application or after further enquiries under rule 17 of the Land Registration Rules 2003, the registrar must decide whether they are satisfied that: (i) the plan identifies, or the plan and verbal description identify, the exact line of the boundary claimed, (ii) the applicant has shown an arguable case that the exact line of the boundary is in the position shown, and (iii) they (the registrar) can identify all the owners of the land adjoining the boundary and has an address at which each owner may be given notice. If so satisfied, the registrar must give the adjoining owner(s) notice of the application, unless the evidence relied on and lodged with the application includes an agreement in writing with the adjoining owner as to the line of the boundary or a court order determining the line of the boundary. Panel 9 of form DB should be completed where there is agreement by the adjoining owner. The registrar must cancel the application if not satisfied as to (i), (ii) and (iii).

The evidence lodged to satisfy the registrar that the exact line of the boundary is in the position shown might include plans or provisions within pre-registration deeds, statutory declarations, statements of truth or other signed statements. Where an applicant is relying on an expert’s report, a copy of that report should be lodged. It should be noted that an expert’s finding as to the position of the legal boundary is not conclusive on the point, even though it may bind the parties instructing the expert. The registrar still needs to be satisfied that an arguable case has been shown for the exact line of the boundary being where the expert has assessed it to be, hence the need for a copy of the expert’s report to be lodged. If there is particular reason to think that the registrar might not be satisfied about an arguable case being shown, it may be better to consider taking the transfer approach explained in Transfers and determined boundaries without an application.

If there is an objection to the application and the objection is not found to be groundless, the matter will have to be referred to the Land Registration division of the Property Chamber, First-tier Tribunal, unless the parties can reach agreement.

4.3 The determined boundary plan

It will be seen below that a chartered land surveyor or other suitably qualified professional will normally have to endorse a determined boundary plan with a certificate. But even where this is not necessary, it is recommended that such a professional should prepare the plan.

A surveyor will normally survey the boundary to be determined in one of 2 ways.

• By the use of measurements from permanent features.
• By the use of Ordnance Survey National Grid co-ordinates.

Using National Grid co-ordinates would only be appropriate in areas where there is little in the way of suitable permanent features or where taped measurements would be excessively long. Using co-ordinates requires specialist surveying equipment and is likely to be the more expensive option when determining the boundary or attempting to reconstitute it.

The position of the boundary to be determined may be marked on the ground by a feature such as a fence or wall. However, this is not a requirement and may not always be possible. For example, some housing developments with open garden frontages contain covenants preventing the erection of fences. An alternative way of marking a boundary can be the use of “permanent ground markers”: see Use of permanent ground markers. Their position will need to be marked on any determined boundary plan lodged with the application.

4.4 Determined boundary plan requirements

This section should be read in conjunction with practice guide 40: supplement 2 - guidance for preparing plans for HM Land Registry applications, which describes general plan requirements applicable to all applications.

The plan supporting an application to determine a boundary:

• must clearly show the extent of the boundary to be determined by suitable reference such as colouring or edging
• must identify the start, end and any turning points of the determined boundary, preferably by way of lettered points and must include a statement describing the determined boundary. For example, “The exact line of the boundary to be determined is between the points A-B-C-D and runs along the centre line of the dividing wall”
• must clearly show sufficient surrounding detail to allow the general position of the boundary to be identified on the Ordnance Survey map, and show its orientation, for example, a north point
• must be drawn to a stated scale - the preferred scale is no smaller than 1:200 and ideally no larger than A3 size (and if necessary more than one plan can be used)
• must describe the relationship with physical features where the boundary coincides with them - for example, on which side of the physical feature the boundary runs, or through which point of the physical feature the boundary passes
• must describe points of reference, and from where on that reference point measurements have been taken, for example, “north east corner of building”, “southwest corner of post”, in the plan legend. If a measurement is to be taken from a reference point which is not part of a physical feature on the ground, this point must be marked by a “permanent ground marker”. See Use of permanent ground markers
• must only include information and detail that is relevant - any superfluous information that could clutter the plan or possibly contradict the relevant information should be left off, and any co-ordinates shown on the plan that are not National Grid co-ordinates must be removed
• must be signed by the applicant(s), and where panel 9 of form DB is completed, the neighbour(s)
• must not bear any statement of disclaimer or endorsement which casts doubt on the accuracy of the plan such as ‘for identification purposes only’

Further detailed plan requirements depend on whether the boundary is determined by measurements or National Grid co-ordinates and are set out below.

4.4.1 Requirements for determined boundary plans where measurements are used

In addition to the requirements set out above, any measurements shown on the plan must:

• be accurate to +/-10mm
• be taken horizontally – in other words, not along a slope
• be taken from at least 2 defined points on surrounding permanent physical features such as the corners of buildings, and preferably from both sides of the boundary

Note: “Permanent features” in this context are taken to be those which it is reasonable to assume will remain in position for at least 10 years. Measurements from features that are subject to natural growth or decay are not acceptable. See also Use of permanent ground markers.

Following consultations with the Royal Institution of Chartered Surveyors (RICS), The Survey Association (TSA) and Ordnance Survey, it was agreed as good practice for plans prepared by a chartered land surveyor or other suitably qualified professional to be endorsed with a certificate as to its accuracy as follows:

“I certify that the measurements shown on this plan are accurate to +/-10mm”.

An example of a determined boundary plan using measurements is shown in Example of a determined boundary plan based on measurements.

4.4.2 Requirements for determined boundary plans where co-ordinates are used

In addition to the requirements set out at the start of Determined boundary plan requirements, the following applies where the determined boundary plan is based on co-ordinates, or where co-ordinates are used as associated points of reference for measurements.

The only co-ordinates that will be accepted are National Grid co-ordinates. If they are used they must have an absolute accuracy of +/-300mm and a relative accuracy of +/-10mm. The co-ordinates should be recorded as a set of two eight digit metric numbers with the eastings first, for example, Easting (m) 652,968.97, Northing (m) 303,713.39. If such co-ordinates appear on the plan we will require that Ordnance Survey, a chartered land surveyor or other suitably qualified professional endorses the plan with the following certificate:

“I certify that the National Grid co-ordinates shown on this plan have an absolute accuracy of +/-300mm and a relative accuracy of +/-10mm. Any measurements shown are accurate to +/-10mm.”

This certificate means:

• the National Grid co-ordinates are each within a 300mm radius of the true National Grid co-ordinates for those points
• the actual distance on the ground between each of the points for which National Grid co-ordinates are given is within 10mm of the distance between those points as calculated from those co-ordinates

A certificate in the same terms but specifying the position of the boundary with greater accuracy (for example, referring to an absolute accuracy of +/-200mm) is, of course, acceptable.

4.4.3 Use of permanent ground markers

Permanent ground markers provide permanent reference locations for the placing of control points in surveying and are intended to be used for a long period of time. Where there is a lack of control from surrounding permanent physical features such as buildings, surveyors may use permanent ground markers as control points.

Examples of permanent ground markers include:

• a bronze disc set in concrete
• an iron pipe filled with concrete
• a crosscut on an existing concrete structure or on a rock outcrop
• a hole drilled in concrete and filled with lead, or a metal rod driven into the ground with a centre-punched mark to designate the exact point
• purpose-made anchored survey markers

Wooden hubs or stakes are sometimes used to mark out the boundary in a field, but these are not permanent ground markers as they can be more easily removed and can be subject to decay.

4.5 Example of a determined boundary plan based on measurements

Example of determined boundary plan requirements(PDF, 1MB)

5. Transfers and determined boundaries without an application

Neighbours might want their common boundary to be in a particular position in order, for example, to allow for easy vehicular access, or for the building of an extension. This may be a different position from where the legal boundary lies. More likely, it may be unclear whether the new boundary is in a different position from where the legal boundary lies: often neighbours will have different views on the exact position of the legal boundary, and both could be reasonable views. Where the neighbours want this ‘new boundary’ not only to be the legal boundary, if it is not already, but to be shown as a determined boundary, they might want to consider the following approach. It involves 3 elements: identifying the exact line of the new boundary; either mutual transfers or a single transfer to ensure the new boundary is the legal boundary if it is not already; and then a request to the registrar to determine the boundary under rule 122 of the Land Registration Rules 2003.

The neighbours would have to bear in mind that third party rights such as restrictive covenants could potentially end up affecting the land transferred to the other neighbour. (Of course this is unlikely to matter if the other neighbour’s title is already subject to the same restrictive covenant or other right involved.)

5.1 Preliminaries

The first step is for the exact line of the new boundary to be identified in just the same way as the exact line of the legal boundary has to be identified where an application is made for a determined boundary. In particular, there will need to be a plan showing the new boundary to the level of accuracy required for a determined boundary application. See Preliminaries.

5.2 Transfers

A copy of the plan can then be used in transfers from each neighbour to the other. Each transfer would need to be in form TP1. The second part of panel 3 (“Property”) might be completed so that the ‘X’ is placed in the first box, followed by a statement along the following lines:

“The property is identified on the attached plan, being any land within the title number specified in panel 1 to the [west etc.] of the line [coloured red etc.].”

Note that the copy of the plan used in the form TP1 must be signed by the transferor. In Panel 9, the ‘X’ might be placed in the third box, followed by a statement to the effect that:

“The transferor has received from the transferee for the property any land within the transferee’s title to the [east etc.] of the line [coloured red etc.].”

Obviously if the consideration is different – perhaps a sum of money being paid in addition – this statement would need to be adapted. (If only one neighbour is transferring land, so there is only one form TP1, then panel 9 is likely to be completed in the usual way, simply referring to a sum of money.)The usual points with transfers apply. In particular, if the titles are subject to charges, the land transferred by each of the transfers might need to be released from the existing charges and re-charged by the transferee (or deeds of substituted security might be executed); we shall require the normal evidence that any stamp duty land tax requirements have been met.

5.3 Request for a determined boundary

On application for the registration of the transfers, the neighbours can request the registrar to exercise their power under rule 122 of the Land Registration Rules 2003 to determine the boundary between their respective titles. The request could be made in panel 12 of form TP1, or in a covering letter. No fee is payable, other than the appropriate fee for registering the transfers. If there is only one transfer involved, then the request should be made by the transferee.

Rule 122 can operate only in so far as a transfer is out of a registered title. So this approach would not be possible where only one transfer was involved and it was out of an unregistered title, and it might not be thought appropriate where mutual transfers were involved but only one was out of a registered title.

6. Things to remember

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