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Boundary – trivial transfers |
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If neighbours adjust their boundaries then the transaction can either be regarded as (i) a formal exchange of land, or (ii) a mere ‘demarcation’ and tidying up of the boundaries.
The importance of this distinction is that if there is an informal agreement to adjust boundaries, then the court will accept that that was merely intended to be a ‘demarcation’ rather than a land transfer.
Accordingly, it will not be necessary to comply with the formal requirements of s2 Law of Property (Miscellaneous Provisions) Act 1989. In particular, this means that the agreement does not have to be in writing and signed by all the parties concerned.
This approach was first laid down by Megarry J in Neilson [1969], but has now been adopted by the CA in a case in which there had been an informal agreement to change boundaries. An argument that the boundary agreement was invalid because it was not in writing (as required by s2) failed. In particular, the CA took the view that if s2 were to apply to trivial transfers arising from ‘demarcating’ boundary agreements then the expenses involved would be disproportionate to the value of the land involved. In this situation, the overriding objective had been to demarcate the boundary rather than to transfer the land; thus, the formalities of s2 did not apply.
Needless to say, you would be unwise to rely upon an argument that a boundary adjustment is a mere exercise in ‘demarcation’. The moral of this case is to avoid any boundary disputes at all by ensuring that the original documentation is comprehensive and clearly worded; when in doubt, attach a large-scale plan (and bear in mind that 1:2500 is not adequate). Joyce v Rigolli [2004] Source: practicallaw.com.
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April 2004 |
