Buyers frequently assume that the fence around the garden marks the edge of what they are buying, which can often be the case, but sometimes it is not, and the difference can be half an acre. According to B P Collins’ property disputes team, Todd and another v Marsh and others [2026] EWHC 1701 (Ch) confirms that a long-standing fence does not move a boundary, that a neighbourly exchange about repairing a fence does not amount to a boundary agreement and, most usefully for anyone involved in a property purchase, that a buyer who does not satisfy themselves that what is on the ground matches the title proceeds at their own risk.
The background
David Todd and Caroline Hodge bought Wyland Wood, a country house set in around 2.7 acres near Robertsbridge in East Sussex, in February 2018. Their seller at that time also owned the two neighbouring parcels: 1) a 6.5 acre plot to the west and south; and 2) a further area to the south east. The sale of Wyland Wood created the boundary that was later in dispute. It was common ground that the case turned on the proper interpretation of the 2018 transfer.
A fence was already in place when Mr Todd and Ms Hodge completed on the purchase. It ran parallel to the paper title boundary, but between 6.37 and 11.37 metres onto the neighbouring land. Mr Todd and Ms Hodge believed the fence marked the edge of their property. When the neighbouring plots were sold in May 2021 and the new owner sought to remove the fence, Mr Todd and Ms Hodge obtained an injunction and the boundary question went to trial.
The judge held that the boundary followed the paper title line, not the fence. Mr Todd and Ms Hodge appealed to the High Court on two broad grounds: 1) that the judge had misapplied the general boundaries rule; and 2) that the judge had failed to properly consider evidence of a boundary agreement. However, the appeal was dismissed.
The general boundaries rule
Section 60 of the Land Registration Act 2002 says that the boundary shown on the register is a general boundary. It shows roughly where the line runs, not exactly. That is because title plans and the descriptions in old deeds are rarely precise enough to fix a line on the ground. The register only fixes the exact line if someone applies to have it determined. The court made clear that this is all the rule does.
The trial judge had said the rule did not apply. However, everyone agreed on appeal that this was wrong – it did apply. However, the error made no difference and she had set the rule out correctly elsewhere in her judgment, and, more importantly, she had done the right thing in practice: she looked at the historic deeds rather than relying on the title plan, and she considered the surrounding evidence as well.
Why the fence lost
The starting point in a boundary dispute is the deed or transfer which divided the land, construed objectively against the factual background known to the parties at the time. Here the trail went back to a conveyance from 1970, which described Wyland Wood as 2.702 acres and showed the boundary running along an old tree line. The title plan produced on first registration in 2003 showed the same line. Both sides’ expert surveyors agreed the boundary followed the tree line, not the fence.
That agreement mattered. To find for Mr Todd and Ms Hodge, the judge would have had to reject the evidence of both experts. Nor was there anything to suggest the fence had ever been meant as a boundary: no one knew when it was built, and the three plots had been in the same ownership for much of the relevant period. Having visited the site, the judge noted that the fence stood on flatter ground away from the tree line – simply an easier place to build it.
One further point carried real weight. If the fence was the boundary, Mr Baldwin would have had no way of reaching the plot he kept to the south east. It would have been landlocked. Nobody would read a transfer as meaning the seller had cut himself off from his own land. The court called this a powerful extra factor, though it would have reached the same answer without it.
Boundary agreements: the two types
Mr Todd and Ms Hodge argued in the alternative that emails with Mr Baldwin in August 2019, after the fence was storm-damaged, had settled the boundary. In those emails the buyers mentioned “the boundary fence” and posts being “on our land some on yours“. Mr Baldwin agreed to share the repair bill and referred to “our side of the fence“.
The law is settled. Courts encourage neighbours to agree boundaries between themselves – in Megarry J’s well-known phrase, such an agreement is an act of peace, quieting strife and averting litigation. The difficulty is section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, which provides that a contract to dispose of an interest in land must be in writing, contain all the terms, and be signed.
The answer is to separate two kinds of agreement. One moves the boundary, transferring land from one neighbour to the other; that is a disposition of land and must meet section 2. The other simply marks out a boundary that was never clear; it may shift a trivial strip, and it falls outside section 2 (but only while the strip really is trivial).
The link to White v Alder
This is where the case meets the Court of Appeal’s decision in White v Alder. In that case the court held that a demarcation agreement binds later owners even if they have never heard of it. The logic is that the agreement defines what the seller owned, and a buyer cannot get more land than the seller had to give.
On appeal, Mr Justice Michael Green drew the obvious consequence. Because such an agreement binds people who know nothing about it, it must be limited to a trivial piece of land. The two cases therefore sit together: White v Alder tells you how far a demarcation agreement reaches, and Todd v Marsh tells you when an informal arrangement can be one in the first place.
Why there was no agreement here
The argument failed on the facts. The judge accepted Mr Baldwin’s evidence that he was dealing with a damaged fence in a neighbourly way and was not thinking about the boundary. In cross-examination he said he knew a fence was not a boundary and that he had no idea whether this one was in the right place. The emails were about the repair, not the line.
The court accepted that saying nothing in response to someone else’s mistake can sometimes count as agreeing with it. But the judge was entitled to find that ignoring passing references to a boundary, in an exchange about storm damage, did not create a binding agreement. There was no dispute at the time to resolve, and nobody had asked Mr Baldwin to confirm the fence was the boundary. He had never applied his mind to it, so there was no meeting of minds.
The judge added that, even if there had been an agreement, it would have moved around half an acre – increasing Wyland Wood by about 18.5%. That is not trivial. It would therefore have been an agreement of the first type and would have needed to satisfy section 2, which a handful of emails plainly did not. Having seen the site and compared the sizes of the plots, she was entitled to take that view. That was an alternative finding, though: the appeal failed on whether there was an agreement at all, regardless of triviality.
What this means in practice
The decision carries several practical lessons:
- A fence is not a boundary. A physical feature, however long established, does not move the legal line. Where land has been in common ownership, a fence may have been erected simply where it was convenient to build, and that is exactly what the court found here.
- Buyers proceed at their own risk. The court rejected the argument that this approach would force purchasers to commission boundary surveys, but its answer is a clear warning. It is always important for a buyer and their solicitors to satisfy themselves that the physical features of the land correspond to the registered title. They can raise enquiries with the seller, inspect, and if necessary, obtain a detailed survey. If they do not, they proceed at their own risk.
- Check the conveyancing history, not just the title plan. The paper boundary here was established by a conveyance from 1970 and confirmed consistently through every subsequent transaction. Where a boundary is in doubt, the pre-registration documents are where the answer is usually found.
- Commercial absurdity is a legitimate check. An interpretation which would leave a seller with a landlocked parcel is unlikely to be what the parties objectively intended. If a proposed boundary line produces an obviously impractical result, that is a strong signal it is wrong.
- Be careful what you write to a neighbour. Mr Todd and Ms Hodge came close . Casual references to “the boundary fence” in correspondence, left uncorrected, were argued to be an agreement. They failed here, but the safer course is to say expressly whether you are agreeing a boundary or merely arranging a repair.
- If you do agree a boundary, record it properly. Where the land involved is anything other than trivial, an informal agreement will not bind. Put it in writing, comply with section 2, and register it. That is cheaper than the alternative, which in this case was a trial, an appeal and four years of litigation.
Get in touch
The property disputes team advises homeowners, developers and landowners on boundary disputes, including the interpretation of transfers and historic conveyances, boundary agreements, determined boundary applications and trespass claims. If you are concerned about where your boundary lies, or a neighbour has challenged it, we can help.
Call us on 01753 889995 or email enquiries@bpcollins.co.uk. The team’s ethos is simple: solve the problem.
