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INSIGHT: Boundary uncertainty can lead to costly dispute

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Disputes can arise where the line of a boundary is uncertain, case law around the determination of boundaries is extensive and whether it concerns a small residential property or a large commercial estate parties can become involved in extensive costly litigation over small areas of land.

Property Lawyer, Karen Piontek warns clients that prevention is always better in the first instance as the following case reveals:

“It is always important to instruct qualified and experienced solicitors for property matters to ensure that the transfer deeds are correctly drafted without ambiguity,” she said

“Property issues and the disputes arising from them can be expensive to put right after the event as the case here exemplifies.”

Boundaries: extrinsic evidence of subsequent conduct (Court of Appeal)

In Norman and another v Sparling the Court of Appeal considered the use of the subsequent conduct of the parties as extrinsic evidence to determine a boundary where the conveyance was unclear.

A conveyance gifting a plot of land contained a parcel clause that was unclear as to the boundaries. The Court of Appeal applied Liaquat Ali v Robert Lane [2006] and used the subsequent conduct of one of the original parties to the conveyance as evidence of the parties' intentions.


Disputes can arise where the line of the boundary between properties is uncertain. Alan Wibberley Building Ltd v Insley [1999] is regarded as the leading modern authority on boundary disputes as it considers the construction of the parcels clause in a conveyance or transfer (the clause setting out the land that is being conveyed or transferred).

Where the parcels clause is unclear, extrinsic evidence may be used. In Liaquat Ali v Robert Lane [2006] the Court of Appeal considered that extrinsic evidence might include subsequent conduct, but all extrinsic evidence must be of probative value in determining what the original parties to the title document intended.


Hebron Farm, together with land to the west of the farm, had been owned by Mr and Mrs Birch (B). In 1988, B gave the land to the west of the farm to Mr Birch's mother (M).

The deed of gift from B to M (1988 deed) described the land by reference to the length of its frontage and other boundaries, shown "for identification purposes only" edged red on a plan. The length of the boundary between the plot being gifted and the remainder of Hebron Farm was omitted from the 1988 deed. The scale of the plan was 208.33 feet to an inch, which meant that the plot being gifted was less than an inch on the plan.

On this plot, a property known as Arnwood was built and a bank was constructed between Hebron Farm and Arnwood. M sold Arnwood, and, at the time of the dispute, it was owned by Mr and Mrs Norman (N). The conveyance by M described the land being sold by reference to the description in the 1988 deed.

Hebron Farm was, at the time of the dispute, owned by Mr Sparling (S). S argued that the boundary between Hebron Farm and Arnwood was at the bottom of the bank on the Arnwood side. N argued that the boundary line was on the top of the bank.

In the County Court, the judge recognised that the starting point for determining the boundaries was the measurements and the plan in the 1988 deed. However, the plan was to a very small scale, it was not clear which point the measurements were taken from and one measurement was missing. An expert land surveyor was unable to say with certainty where the boundary should be.

Accepting that it was appropriate to use extrinsic evidence, the judge had regard to the conduct of the parties. On this basis, the judge found that what was intended to be conveyed by M was the side of the bank up to its top. The bank was very steep and the judge found that it was unlikely that the original parties had intended both sides of the bank to be within Hebron Farm.

S appealed on the basis that since the bank was not in existence on the date of the gift to M, it should not be taken into consideration in determining the boundaries of Arnwood. It could not have any proper bearing at all on the construction of the parcel of land gifted to M by B.


The Court of Appeal upheld the first instance decision, but for different reasons.

Applying Liaquat Ali v Lane the Court of Appeal considered the subsequent conduct of Mr Birch, rather than M. The evidence was that Mr Birch:

  • Sought to mark the boundary of the land (by the building of the bank) without any objection from M.
  • Allowed N to plant bushes and other plants on the Arnwood side of the bank without objection.
  • At the time of the conveyance of Arnwood from M to N, put posts along the top of the bank to indicate the boundary line.

The court held that this was highly probative evidence which justified the judge's conclusion that the top of the bank marked the boundary. Taking the boundary to be the top of the bank was within the limits of tolerance permitted by the description in the 1988 deed.

Pearson Solicitors have experts in both commercial property law and boundary litigation.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.

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