Why Developers and Property Owners Should Be Cautious
Everyone, (except nerdy property lawyers), would understand it, if as a property owner or developer, you assumed that the red line on your Land Registry Title Plan is definitive as to the boundaries of your property.
Understandable also would be your investment, relying on that red line, in the fees for obtaining the various professionals’ reports and documents required, (these days), to support a planning application for development on your property. Indeed, a client told me recently that a planning application generated 396 documents, before consideration of it, by the planning authority.
Developers might further agree it’s a no brainer to say the size of a property is one fundamental in establishing the density of and therefore the yield from development it might support. The boundaries therefore, affect your bottom line. Being able to rely on the boundary position is key, then.
Okay, so you’ve done the work, you’ve paid for all the reports. You made the application and expect approval any day. You will want to crack on and are ready to call your new solicitor. You think they might be a bit nerdy, but hey, caution is what you pay them for. You send the site details to them and make the call.
Nerdy property lawyer: “…but hang on, this development depends on you building, actually on the red line. The site plan shows an enormous hedge and a line of trees which you will need to fell. You can’t rely on that being the actual boundary, even if that is where the Land Registry says it is. The hedge and trees might belong to the neighbour”.
Whilst stifling a yawn and thinking “..can that be right, and am I really paying for this?”, you ask for clarification. Nerdy property lawyer settles in and explains:
Four Boundary Realities You Need to Know
There are at least four concepts all developers and landowners need to know about boundaries:
- Unless there has been a boundary determination by the Land Registry, the red line on the Title Plan shows only general boundaries. It reflects only a “reasonable interpretation of the land” and cannot be relied on to show what you own. The actual property could be significantly larger or smaller.
- If a boundary feature is a hedge and ditch, a non tidal river, a highway, or a ditch between a hedge or fence and highway, specific rules apply. The red line is unlikely to be accurate. Centuries’ worth of cases contain the rules on those types of boundary.
- Party owned structures will most probably need a Party Wall Agreement, as will building near to a neighbouring structure.
- A boundary agreement may have been made in the past, which you know nothing about, but which sets the boundary in a place different from the red line.
It’s that problem we are going to explore.
Back in time, perhaps even before the property became registered land, neighbours may have, between themselves, agreed on the legal position of a boundary. That might be because they wanted to even out creases or because of the thickness of a hedge. Or because of parallel boundary features running alongside each other – which is the actual boundary?. A conveyance or transfer might have described the boundary as being “the hedge” or “the line of trees along the road to the west”. A drawing attached might not have shown the two boundary features running parallel, or small scale creases in a line.
If those neighbours made such an agreement, even if the position they chose was different from that shown on the drawing attached to a conveyance or transfer, the law says that agreement reflects the true position of the legal boundary. It “establishes on the ground the physical extent of the .. legal estates… and that “The boundary is presumed always to have been in that location”. It assumes the description in the deeds or the plan was wrong or incomplete. Also, the court will not require an actual transfer or conveyance of that land to take place if there is such a difference. It will (unless rebutted), presume it’s a trivial amount of land which might swap sides of the line. The court also believes it is in the public interest for there to be such “trivial transfers” without them having to be registered at the Land Registry.
Recent Cases That Change The Game
Any such boundary agreement will bind future owners of the property even if they have not been registered or be in their knowledge. And that was confirmed in two 2025 cases.
The first is Bishop v Jaques whereby in 1971, an agreement was made as to the ownership between neighbours of a boundary described in a 1949 Conveyance. The boundary concerned is an extraordinarily large, for a boundary, (and not trivial at all), strip of land four metres by thirty meters on which there had been a line of tall trees and a hedge. The property it defined was described in the 1949 Conveyance by cardinal points and a very thick line on a plan.
It appears Mr Bishop might have needed the full extent of the boundary, to use for access to an intended residential development. He applied to the Land Registry for determination that the boundary belonged to him, but when Mrs Jaques objected to Mr Bishop’s application, she brought evidence from her previous owners. They had made that 1971 written agreement with Mr Bishop’s predecessor saying the (very large) boundary belonged to their property, which subsequently was transferred with their house, to Mrs Jaques. The Upper Tribunal found for Mrs Jaques, possibly leaving Mr Bishop’s ambitions for development in tatters.
The second is White v Alder. Here, neighbours bought their properties from a common seller within a month of each other in November 2005. The Alders owned the “Old Stores” and Mr White owned “Willow Cottage”. Sounds idyllic and it probably was, until in 2016, Mr White demolished a boundary wall and began to build an extension on it. The Alders began injunction proceedings.
Neither of the parties had known of an agreement made in October 2005 between the then respective owners, that the Old Stores owned the boundary wall. The agreement was not registered and was only recorded between them in text and by way of a drawing. Despite that, the Court of Appeal found for the Alders, rendering the extension unlawful. It was reinforced that a boundary agreement demarcating the boundary is not required to be registered, because it settles questions of existing fact (even where parcels of land might physically “change hands”). That being the case, those boundary agreements bind future owners, even if they don’t know of them.
As might be expected, the Land Registry has a view. It seems officially the Land Registry will tolerate changing the position of the red line only if its new position set by a demarcation agreement falls within the general boundaries rule. That means if the new line can also be “a reasonable interpretation of the land in the pre-registration deeds”, they will change the Title Plan without the need for a transfer. Nerdy property lawyer: “Good luck with that!”
You are becoming a bit troubled and are wide awake. You say: “So what about my development then?”
Nerdy property lawyer’s thought bubble reads “better late than never”, but they say “Okay, let’s have a look at your title and the information that was revealed to you by the seller when you bought. Whatever you do, don’t approach your neighbours, in case we might be able to insure it. But I hope your solicitor asked specific questions as to ownership of the boundary features and whether any agreements have been made in the past as to them. We can take it from there. If the questions were asked and information was not revealed or was wrong, you might explore a claim against your sellers.”.
So, What Does This Mean for Your Development?
- Get absolute clarity on your boundaries before investing.
- Use solicitors to help you with all boundary issues and don’t approach your neighbours without asking solicitors first. It might be possible to insure.
- Don’t make informal agreements with your neighbours without using solicitors, registering them at the Land Registry and revealing them to buyers.
- Reveal differences in the actual boundaries from the Title Plan, to buyers.
- Despite the cases, and the courts’ opinions on “trivial transfers”, the Land Registry will in all likelihood, always want a formal transfer if land changes hands (and so will a funder and future buyers).
- Litigation afterwards is much more expensive than preventive caution.
If you would like expert advice on how these changes may impact your development plans, please contact Deirdre Smith and our Real Estate team.
Note: this article is for information only and may not be taken for legal advice.
References:
HM Land Registry Plans boundaries (practice guide 40, supplement 3 and supplement 4)
Property Development – A Practical Guide by Gavin Le Chat
White v Alder [2025] EWCA 392
Bishop v Jacques [2025] UKT141