In December 2016, neighbouring property owners, Mr and Mrs Crea (who own The Heathers) and Mrs and Mrs Camp (who own Sunnyside), were in dispute about the position of the legal boundary between their properties and various encroachments onto and across the boundary line that had been made. In an attempt to avoid litigation, they agreed to instruct a surveyor to undertake a detailed measured survey and ascertain the position of the legal boundary. A surveyor was duly instructed who said that he would start by surveying the physical boundary between the two properties and accurately recording on a plan all physical features along the boundary at the date of his survey. He would then consider the historical maps and plans in the parties’ title deeds in order to overlay these documents on to the physical features present along the boundary. By such process he said that he would be able to make “observations and comments” and that once the boundary had been “defined”, he would prepare a “determined boundary plan (with dimensions) that will define the boundary between the two properties”.
The work was done and the surveyor produced a report which, inter alia, said that:
the two end points of the boundary line were defined by the stone walls at points A and G of his plan, but, between these two well-defined points there have been many changes and modifications to the physical boundary, so defining the definitive boundary becomes more difficult,
the exact legal boundary line between A and G cannot be accurately reproduced on the ground today because there have been so many changes to the physical feature(s) that define it, and there is nothing in writing that describes it in detail,
there have been material changes on and adjacent to the boundary over the years that could be considered encroachments,
it would be ridiculous to suggest that either neighbour should demolish parts of permanent buildings or structures that have been in place for such a long time,
as it is not possible, with the evidence to hand, to determine the exact legal boundary, the best solution is to create a new Determined Boundary that provides a practical solution to an unanswerable question.
The surveyor then went on to present his suggested solution and concluded his report by saying:
“Please find attached the Boundary Report in accordance with your instructions. Once you have had the opportunity to read the report, please confirm your acceptance, or otherwise, of my conclusions. As soon as I receive confirmation of acceptance and payment of my fees in full I will prepare and issue the Determined Boundary Plan.”
Mr and Mrs Crea were unhappy with the surveyor’s report. By an email dated 15 February 2017, they set out a detailed critique of his report. They alleged bias and asserted that they had not “signed up” to a binding agreement as to the boundary. They asserted that they had only expected the surveyor to produce a definitive site plan at which stage the boundary could be assessed by “someone expert in boundary law” after which the surveyor could produce the determined boundary plan. In view of that attack, the surveyor felt that he had no choice other than to withdraw as the parties’ jointly instructed boundary expert.
Mr and Mrs Camp’s solicitors said that Mr and Mrs Crea were bound by the surveyor’s report and that the position of the boundary had therefore been determined. Mr and Mrs Crea’s solicitors said that they were not bound and that the position of the boundary remained to be determined.
Litigation ensued and, in October 2018, our Mark Sanders was instructed to provide expert evidence as to the position of the legal boundary. The case went to the County Court and, after considerable delay was heard in April 2024 by His Honour Judge Berkley. There was legal argument around the enforceability of the surveyor’s report and considerable evidence of fact and expert opinion as to the position of the legal boundary. The judge expressed his regret (at para. 110 of his judgment) that the parties did not propose that the issue of the boundary agreement was determined as a preliminary issue and went on to find that, as a matter of law, they were bound by it.
Mr and Mrs Crea appealed to the High Court and the case was heard by The Honourable Mr Justice Pepperall in June 2025. The judgment includes a summary of the law around boundary agreements and, despite the fact that the surveyor had concluded that he was unable to determine the position of the legal boundary and proposed a different solution, held that the judge at first instance was correct and dismissed the appeal.
Having been directly involved in this case, we are even more alive to the fact that boundary disputes can be all-consuming and can have a devastating affect on the lives of those embroiled in them. This case involved much unpleasantness and included claims for trespass and harassment. It will also have cost the parties very significant sums of money which, with deep irony, the appointment of the boundary surveyor was intended to avoid.
Perhaps the most striking lesson is that what may appear to be a loosely worded exchange of letters and/or e-mails between unrepresented parties can create an enforceable contract so that, even where the appointed surveyor proposes a solution that goes outside what the parties thought their instructions were, they are bound by the outcome.
