Russell Vincent Farraday & Anor v Patrick David Smith & Anor [2026] UKFTT 1019 (PC)

[2026] UKFTT 01019 (PC)

REF/2025/0190

PROPERTY CHAMBER, LAND REGISTRATION

FIRST-TIER TRIBUNAL

Between

RUSSELL VINCENT FARRADAYApplicant

JANNETTE FARRADAYApplicant

PATRICK DAVID SMITHRespondent

JACQUELINE HEATH SMITHRespondent

LAND Registration act 2002

IN the matter of a reference from hm land registry

Property Address:

Drakes Place, Rhydd, Hanley Castle, Worcester WR8 0AD

Title Number: WR67859

Before: Judge Simon Allison KC

On: 21 and 22 April and 22 June 2026, sitting at Birmingham Civil Justice Centre

Applicant Representation: Ms Michelle Caney, counsel

Respondent Representation: Ms Elizabeth Fisher, counsel

DECISION

Date 2026-06-25

The following cases are referred to in this decision:

[1]By an application dated 22 March 2024, the Applicants applied to alter the title plan to their home, which they hold (as freehold proprietors) under title number WR67859. That property is called ‘Drakes Place’. The alteration sought would have the effect amalgamating three ill-defined (but sufficiently distinct for my purposes) pieces of land.

[2]Each of those three pieces of land, for reasons which follow below, can conveniently be treated separately for the purpose of this decision.a. Firstly, there is a small triangle of land, which is currently registered in the Applicants’ names with possessory title (following an earlier application for adverse possession) under title WR204352. That possessory title was granted on 13 September 2022. The applicants have asked the Registrar to amalgamate this title within title to Drakes Place (in effect, upgrading their possessory title to absolute title), on the basis that it should have been included within their title on first registration (i.e. under Schedule 4 to the Act, on the ground of mistake). This small area of land – not to be confused with the Triangular Land referenced below – forms on the ground a small ‘viewing platform’ at the end of the formal garden to Drakes Place, which sits at a considerably higher elevation than the adjoining land to the east and looks out over the Respondents’ land and the River Severn and beyond. So far as this small triangle of land within WR204352 is concerned, the Respondents do not (any more at least) object to the application; indeed, I heard no evidence of note with respect to it nor any submissions. Accordingly, I say no more as to this aspect, and it will be for the Registrar to process the Applicants’ application with respect to this area of land as if no objection had been made.

b. Secondly, there is a relatively large unregistered area of land which sits between the Applicants’ registered title for Drakes Place and the Respondents’ registered title for their home at Willowdene, Rhydd. This can be seen in white in the plan below, and is referred to in some places as the ‘Mistake Land’ For completeness, the small triangle of land forming the Viewing Platform can be seen adjacent to the top left corner of the Mistake Land in that plan. .

c. The Mistake Land is for the purpose of the dispute treated as two different areas, albeit the Applicants’ case overall is that the whole of the Mistake Land was mistakenly omitted from the title plan to Drakes Place when it was first registered on 5 June 2002 (which mistake they seek correction of pursuant to paragraph 5 of Schedule 4 to the Act).

d. Firstly, there is what has come to be referred to in these proceedings as the ‘White Land’. This consists of a very steep embankment, the top of which sits near the eastern edge of the formal garden to Drakes Place (and the Viewing Platform), and the bottom of which forms the current registered western boundary of Willowdene somewhere near the bottom of the embankment. The Applicant has estimated the height difference from top to bottom as being something in the region of 8-10 metres which is broadly consistent with what I observed on a site view on 20 April 2026 (prior to the first day of the hearing). The White Land is mostly overgrown, albeit maintained to a degree along its top and bottom extents and the Respondents at least have asserted some (relatively minimal) use of the White Land in years gone by. The eastern (top) extent of the White Land is roughly marked out with pegs in the ground and (now) a wire running between those pegs; whilst the pegs were renewed in recent years, it is not in serious dispute that they were replaced in broadly the same place as they had been in for many years (probably since the area was marked out in 2002, at least on the Respondents’ case). The White Land sits above the Respondents’ rear garden.

e. Then there is the ‘Brown Land’ (also referred to in some places as ‘the terrace’). The Brown Land consists of a strip of land forming the southern tip of the unregistered area of land shown in the plan above. The dimensions of this area of land are a matter of some dispute between the parties, albeit no measured survey evidence was adduced by either party. However, Land Registry have assessed this area (from scaling of plans) to be about 2.8x13m in size, and this is consistent with what I saw (and paced out) on the site view. Again, it is somewhat overgrown, but the strip of land is fairly easily identified on the ground as it is bounded on its western extent by a tall brick wall (enclosing a fruit garden for most of its length), on its eastern edge by a high quarried stone lower retaining wall that is perhaps 3m high, with the Respondents’ driveway (and in part, garage) beneath. The northern extent broadly coincides with the end of the fruit garden (and thus the brick wall), and the southern extent must logically sit at the point where another property (the Old Dairy) has its registered title to the continuation of the strip and land beyond.

[3]The division between these two areas is helpfully shown on a plan attached to the Respondents’ original objection of 8 August 2024 thus:

[4]The Respondents’ case, in summary, is as follows:a. There was no mistake in failing to include the White Land within the title to Drakes Place on first registration. That is because, they say, it was agreed prior to first registration of Drakes Place that the boundary between Drakes Place and Willowdene was along the line now marked by the pegs and wire, and that boundary agreement determines the line of the boundary between the two titles. The White Land should, say the Respondents, form part of their title to Willowdene in light of that agreement as to the line of the boundary. It was also originally suggested by the Respondents that in any event the White Land consists (in large part at least) of the land conveyed by a 1981 conveyance described below (the Triangular Land) and thus forms part of their paper title that should have been included in the title to Willowdene on first registration, however, that contention is (rightly, in my view) no longer pursued.

b. There was no mistake in failing to include the Brown Land within the title to Drakes Place on first registration. That is because, shortly prior to the application for first registration of Drakes Place being made, the Respondents had agreed with the then proprietors of Drakes Place (being the executors of the Estate of Colonel Mayhew) to purchase the Brown Land for the sum of £100. That sum was, they say, paid and a transfer (in form TP1 – the ‘Transfer Deed’) was executed by the parties, and an application to register that transfer had been made to Land Registry a few weeks prior to first registration of Drakes Place. The Applicants say to this that the Transfer Deed was ineffective at law because

(a) it fails to adequately identify the land being transferred, and

(b) in fact, the registration ultimately did not occur as Land Registry raised requisitions that were seemingly not satisfied. Thus they say, had the Registrar known the true state of affairs, the Brown Land would have been included within title to Drakes Place on first registration.

The land and relevant conveyances, with some initial analysis

[5]Before I set out the detail of the hearing and my findings on the various issues, I must set out the history of the various relevant conveyances to provide context to what follows. For the sake of concision, I do so in relatively summary form; there is no significant dispute between the parties as to the conveyances themselves, save so far as the question of what the boundary was of the land conveyed (in particular, the Triangular Land).

[6]The land of the parties was originally in common ownership.

[7]By a conveyance dated 22 September 1958 between Captain C.H. Allen and Mr and Mrs Baker, the freehold cottage and garden now known as Willowdene was conveyed out of Drakes Place. The plan to that conveyance showed that the front garden / driveway of Willowdene was wider than the rear garden, which tapered down to a point (or near point) in its north-eastern corner.

[8]On the ground, at the site view, one could see some evidence of this original tapered boundary, as the retaining wall (forming one edge of the Brown Land) at the front then curves around (to the rear of the garage) and appears to be heading along a line consistent with that tapered point, albeit most of that wall is now missing.

[9]On 24 February 1966, Drakes Place was conveyed to a Colonel Mayhew. The plan to that conveyance shows the extent of the title to Drakes Place at that time thus (edged green):

[10]On 31 July 1981, Colonel Mayhew (as owner of Drakes Place) conveyed to Mrs Baker (as owner of Willowdene) a triangular plot of land (the Triangular Land). The parcels clause defined the land conveyed as being ‘more particularly shown on the plan annexed hereto and thereon edged red’. That plan is not terribly detailed, but shows as follows:

[11]Accordingly, from that point, Willowdene’s rear garden no longer tapered to a point, but was instead roughly rectangular in shape, being about as wide at the ‘house’ end as it was at the far end. That is how the garden appears today – rectangular in shape, albeit one can readily see from the position of the garage that the Triangular Land incorporated part of what is now the embankment. Indeed at the time of that conveyance, it is likely that the retaining wall had followed the line of the former boundary and thus necessarily, pending remodelling of the rear garden, it must have included part of the then embankment, with the embankment since then having been ‘cut into’ to give what is now seen on the ground. The Applicants suggest that the southern tip of the Triangular Land appears to correspond roughly with the northern end of the retaining wall running to the side of Willowdene’s house; whilst I find that is broadly correct, it is likely to correspond with the retaining wall around the point where it ‘turns in’ rather than with the very end as has been now retained, although not much turns on that distinction for present purposes.

[12]At the time of the 1981 conveyance of the Triangular Land, a memorandum was noted on the 1966 conveyance recording that a ‘small’ triangular shaped piece of land had been conveyed.

[13]In 1984, Willowdene was conveyed to Mr and Mrs Jarvis, and on 19 May 1988, they in turn conveyed Willowdene to the respondents, Mr and Mrs Smith, who have lived there ever since. Logically, Mr and Mrs Smith cannot have acquired at that time title to any land beyond the original Willowdene title together with the Triangular Land. Both titles remained unregistered at that time.

[14]Colonel Mayhew died on 30 October 2001. Executors were appointed (Mr Chetwood and Mr Croshaw as referred to below). The beneficiaries were his two sons, Bob and Michael.

[15]On 1st May 2002, the Transfer Deed (transferring the Brown Land) appears to have been completed, purportedly transferring the Brown Land out of title to Drakes Place and transferring it to the Respondents. That transfer was never given effect to by registration, as explored below.

[16]On 14 May 2002 the Executors sold Drakes Place to John Airey for £355,000 by way of a transfer of whole, with the land being identified by reference to the 1966 conveyance. Accordingly, whatever remained within the paper title to Drakes Place on 14 May 2002, was sold to Mr Airey. Drakes Place was registered for the first time as a result of this transaction; on 9 June 2002 registration took effect, with the current title number (WR67859) allocated. The title plan shows that the Mistake Land was omitted from the title plan to Drakes Place at that time.

[17]The precise reason for that is unclear as no records from that time relating to first registration of Drakes Place have been produced, but the most likely explanation is that the Executors considered the Brown Land to have been sold to Mr and Mrs Smith, and considered following discussions / the boundary agreement with Mr Smith that the eastern boundary lay along the top of the embankment; there must have been a plan of sorts lodged with the application or a survey undertaken at which the surveyor was told the eastern boundary lay along the line of the posts in the ground as an agreed boundary. Of course, at that time, Willowdene had not been registered, so there was no established adjoining title to ‘marry up’ with.

[18]The Applicants purchased Drakes Place from Mr Airey on 9 May 2005.

[19]It was not until 4 November 2002 that Willowdene was first registered (and given title WR204991). At or around the time of first registration, the Respondents also lodged an application for registration of the Mistake Land on grounds of adverse possession. The adverse possession applications did not succeed (initially being cancelled for failure to respond to requisitions, but a second application was rejected). Accordingly, the Mistake Land was not included within Willowdene’s title, which was given a title plan thus:

[20]In my view, this title plan to Willowdene accords broadly with the combination of the original conveyance of Willowdene together with the Triangular Land, and demonstrates fairly clearly that the Triangular Land did not include all of the embankment even if it included (as I find it did) some lower parts of the embankment. Helpfully, this later title plan also shows as a feature broadly the line of the top of the embankment / the eastern extent of the Drakes Place title, albeit with some imprecision near the northern edge of the Brown Land.

The hearing, the evidence and key findings of fact

[21]In advance of the hearing, I was provided with skeleton arguments from both counsel, a chronology, and a combined bundle of authorities. I am grateful to both counsel for these helpful documents, and the constructive and pragmatic way in which the hearing was conducted.

[22]As noted above, I had the benefit of a site view the day before the first day of the hearing. Where relevant, I base my findings of fact in relation to the general boundaries of the various parcels of land / their identity and other factors in part upon those observations, albeit I am also assisted by various photographs (including within HM Land Registry surveys undertaken in recent years) and of course, principally, by the plans to the various conveyances, some of which are described below.

[23]The hearing itself was due to take place in person on 21 and 22 April 2026. During the course of the first day of the hearing, the Respondents produced a number of documents to the Applicants, some of which were originals of poorly copied documents within the hearing bundle, with others being new documents. Accordingly, counsel suggested that additional time would be required to consider those documents and establish which already existed within the hearing bundle and which did not These documents were later included within a Supplemental Bundle, lodged between day 2 and day 3 of the hearing. . By that time I had heard evidence from all witnesses that were to be called save for Mrs Smith. It was agreed that Mrs Smith’s evidence and closing submissions could be comfortably accommodated within day 2 of the hearing, and accordingly, the hearing finished on day 1 shortly after lunch. Unfortunately, the following morning, counsel for the Applicants was taken ill and accordingly the final day of the hearing was adjourned and took place on 22 June 2026, where the hearing completed as planned.

[24]Six witness statements were included within the hearing bundle, however, I only heard evidence from three of those witnesses (being Mr Farraday, and both of the respondents). As to the other three witnesses:a. Mrs Farraday’s witness statement was in short form and in essence confirmed she agreed with Mr Farraday’s evidence. It was sensibly agreed by both parties there was no need for Mrs Farraday to be called.

b. A statement from Mr Croshaw had also been adduced by the Applicants. Mr Croshaw is a retired solicitor, formerly a partner at Russell & Co solicitors of Malvern. The firm had acted for the Estate of Colonel Mayhew in the sale of the Brown Land and in the first registration of Drakes Place, and Mr Croshaw himself was one of the executors. The Applicants only explained that they would not be calling Mr Croshaw on the first day of the hearing, which was not very satisfactory, in particular for the Respondents who understandably had a number of questions for Mr Croshaw on his evidence. The Respondents invited me to draw adverse inferences as to the decision not to call Mr Croshaw and in any event to afford little to no weight to his untested evidence. I accept I should give little weight to any disputed matters within Mr Croshaw’s evidence. However, it is unlikely his evidence would have been determinative of anything, not least as it is clear on the face of his statement that his recollection of matters (beyond what is clear from the documentary evidence) is very limited – unsurprisingly given the 24 years that have elapsed since the material transaction, a problem that affects to a degree the evidence of the Respondents as well. What he does confirm (which is in the Respondents’ favour) is that he does believe the executors signed the Transfer Deed given the content of a letter sent at the time by a fee earner in his firm, and I accept that evidence albeit I would have reached that conclusion on all the documentary evidence in any event given the letter (of 1st May 2002) confirms that the transfer had been completed that day.

c. Finally, there is a statement of Mr Stuart Anderson. Mr Anderson had been hired in 2020 by the Respondents to replace the post and wire ‘fence’ along the top and side edges of the White Land, which itself had dated back (it is said by the Respondents) to when the boundary was agreed between Mr Smith and the Executors / their representative in the form of Colonel Mayhew’s son Michael. Whilst that replacement work had caused something of a dispute at the time, as Mr Farraday had been unable to check whether the posts were replaced in the same place (albeit this was prior to the current dispute had reared its head), the substance of Mr Anderson’s evidence is that he did replace it in the same location as it had been previously, and that he recalled a ‘heated’ discussion between Mr Farraday and Mr Smith at one point during the day he was there. Mr Anderson’s statement was agreed and he was not called; I do not consider anything turns on his evidence, and do not address it further.

[25]In terms of the evidence of the witnesses I did hear from, my key observations are as follows:a. Mr Farraday struck me as a straightforward, if somewhat frustrated, witness. He was prepared to make sensible concessions under examination, albeit sometimes had to be pushed (e.g. he did eventually accept the post and wire fence, despite replacement, was broadly in the same place as originally staked out). Much of his statement was closer to opinion evidence than evidence of fact, which was less helpful – comparing and overlaying various conveyance plans to seek to argue his case. I do not particularly criticise him for doing this in tribunal proceedings, I just don’t find it particularly helpful (not least as he was not giving expert evidence). He confirmed that Mr Smith had always contended that he had paid £100 for the Brown Land, but complained that despite request, Mr and Mrs Smith had refused to provide documentary evidence in support of their contentions with respect to the Mistake Land as a whole. He asserted that the Executors had never reached any agreement about the boundary with Mr Smith, but of course he had no direct knowledge of the same as his ownership post-dates those matters.

b. Mr Smith’s evidence was of greater potential importance given his involvement at the material time in reaching the alleged boundary agreement relating to the White Land and as the purchaser of the Brown Land. He sought to portray himself as not having appreciated the importance of various things, including the need to properly satisfy the Registrar as to the extent of the Brown Land included in the Transfer Deed (notwithstanding several letters requesting further information from Mr and Mrs Smith), the importance of supplying documents to Mr and Mrs Farraday to explain his position with respect to the dispute, and other matters; I found this somewhat unconvincing, and more formed the overall impression that Mr Smith had at times been deliberately obstructive and or wilfully ignored invitations to resolve issues (such as when Russell & Co had written to Mr and Mrs Smith explaining the large discrepancy in dimensions in the Transfer Deed, as referred to in more detail below). It is not at all uncommon for there to be a failure to cooperate in boundary disputes, but I found it harder to understand why Mr Smith had seemingly steadfastly stuck to his view of the dimensions of the Brown Land even in the face of repeated challenge (even up to the final hearing of this reference). He was unable to satisfactorily explain how he had arrived at the original dimensions (1x5x25) stated in the Transfer, or why he had refused to amend them; his evidence on this was very confused, as he sought but failed to justify the measurements. Eventually he appeared to agree that he had “cocked the figures up” but noted that “we all knew what the terrace was”, and he later conceded that he had “perhaps” been “lackadaisical”. Notwithstanding those concerns as to Mr Smith’s attitude to matters over the years, I did find him to be a generally truthful witness, in the sense of having an honest belief in the truth of the evidence he was giving. A good example of this was when Mr Smith was asked about where he had considered the boundary of the Triangular Land to sit, and answered it was somewhere part way up the embankment (rather than at the top) and said whilst he thought it was part way up, he was happy to accept the Executors’ suggestion (after some discussion) of the boundary being at the top of the embankment (some way much further up). He accepted he thought they were being generous to him, and indicated on a plan (that is now in evidence in a Supplemental Bundle at page 463) where he thought the boundary was (the orange line) versus where the boundary was staked out (the purple line). At other points, he sought to deflect questions by saying his wife, Mrs Smith, had dealt with matters (principally of correspondence with others).

c. Mrs Smith gave evidence last. She was well-prepared with her answers, which is not surprising given the two months that had elapsed due to the adjournment referenced above. When she didn’t know the answer to a question, or couldn’t recall, she stated so. I found her evidence to be largely very straightforward, if occasionally defensive. She accepted that if the embankment had been included within the Triangle Land, Willowdene’s title plan would have shown the plot to be significantly wider at the rear than at the front. When asked about whether the boundary agreement had resulted in the line of the boundary being ‘revised’ (the word used in the original response filed on behalf of the Respondents as found at page 18 of the bundle The objection stated that the Mistake Land had not been included on first registration of Drakes Place because by then ‘…the boundary had already been revised by mutual agreement between the [Respondents], the Executors of the estate of the late Col R. C Mayhew and Mr Michael Mayhew, one of the estate’s beneficiaries’. ), and being told that Mr Smith had referred to it being ‘moved’, she responded ‘Revised, moved, yeah’. In response to many of the questions about why things had been done in a certain way, she deflected responsibility onto her various solicitors over the years, saying she relied upon them.

[26]I should mention that Ms Caney sought in cross-examination of the Respondents (and in particular Mrs Smith) to make something of their failed applications to register the Mistake Land by adverse possession, which applications were made in the years immediately prior to the current application. The basis of the challenge was that there were inconsistencies between the various accounts of what had been agreed and between whom when the boundary agreement was entered into, and on other disputed matters of fact, and that this tended to show that they had set out to intentionally mislead. That was a proper ground on which to cross-examine, however, ultimately, I don’t find that anything turns on those inconsistencies; the answers given, in particular by Mrs Smith, explaining those inconstancies (in particular, a desire to give a more detailed account in the second application after the first one was cancelled) struck me as a satisfactory explanation.

[27]In practice, the resolution of this dispute turns more on the documentary evidence and on legal analysis rather than upon the evidence of the witnesses. I mean no disrespect when I say that their evidence overall was not determinative of many disputed issues, save to an extent with respect to the boundary agreement in respect of the White Land. It is to those issues that I now turn – dealing first with the White Land, and second with the Brown Land. The White Land Was an agreement reached as to the location of the boundary?

The White Land

[28]Having considered all the evidence, and having heard evidence from Mr and Mrs Smith, I am satisfied that a conversation on site did take place between Mr Smith and Col. Mayhew’s son Michael, together with one or two others (one of which may or may not have been an Executor) in or about March 2002. I accept Mr Smith’s evidence as broadly set out in his witness statement as to how that meeting progressed, as expanded upon by way of his answers under cross-examination.

[29]Accordingly, I find that(a) a line representing the boundary between Willowdene and Drakes Place was agreed (at least so far as the White Land is concerned), and

(b) that this was marked out by stakes in the ground, which were placed in broadly the same location as the post and wire line that appears there now.

[30]I have considered the point made by Ms Caney that the letter of 11 March 2002 appears to cast doubt on the Respondents’ account in terms of the precise chronology (as by that time there was some form of agreement in relation to the Brown Land, but the boundaries of the White Land were still being debated), but do not consider this undermines the account more broadly that ultimately there was a discussion ‘on the ground’; however read, that letter and the other letters retained (which are not a complete record) are not determinative of the issue. Whenever the meeting was, it must have been prior to first registration of Drakes Place given the title plan that resulted.

[31]I do not consider it matters whether or not the Executors were present at the meeting. I accept that a beneficiary could not bind the Estate, but I find it inconceivable that the Estate was unaware of the meeting (which probably involved someone from the auction house as well, which was acting for the Estate in the sale). Given that the Executors were partners in the firm (Russell & Co) that acted on the conveyances, and given that the title plan following first registration of Drakes Place clearly showed a title extent consistent with what is said to have been agreed on site, it is overwhelmingly likely that the Executors concurred with and ratified what had been agreed on site if they did not expressly agree it at the time.

[32]I also accept Mr Smith’s evidence that at the time of the agreement he had believed the boundary was ‘part way up the bank’, which is where he walked to during that meeting, and that Michael instead suggested a line along the top of the embankment Albeit this account is not wholly consistent with certain marked up plans exchanged with Russell & Co when the location of the boundary was being debated. These plans may have been supplied by Mr Smith after the meeting had taken place, they are at least consistent with it; they sought to show that the Triangular Land was consistent with the White Land but I am satisfied that it was not, as well illustrated by the comparison of plans shown in Ms Caney’s skeleton argument at §5.2. . That may have been a pragmatic suggestion (as it would be far easier to mark on the ground) and or may have been a suggestion based on what might be more attractive to buyers, who might have been perceived to have preferred not to own part of a steep embankment that was hard to access and thus maintain. As Mr Smith states in his statement they ‘wanted to make sure they had a clear line so the property could be sold’. Mr Smith was happy as he was concerned with his privacy (and, I infer, as it meant he got more land than he thought he was entitled to).

[33]In short, I find there was a firm agreement between the two parties amounting to some form of boundary agreement. What was the nature of the agreement? Was it enforceable given it was not reduced to writing?

[34]It is now well established See in particular Neilson v Poole

(1969) 20 P&CR 909

at 918-920, as recently considered in White v Alder

[2026] Ch. 65

at [53-54]. that boundary agreements can fall into one of two different categories. The first form of agreement does no more than identify on the ground that which is shown in documents (whether by words or plans or both). The second form of agreement is in effect a contract to convey (transfer) land. The second form of agreement might arise where the parties agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place (the example in Poole). Whilst there might not be express discussion of a transfer or conveyance of land, nonetheless, that is the substance of the agreement in that example. The first form of agreement, by contrast, just represents agreement as to what the existing state of affairs as shown in existing plans and other documents actually represents in practice, with nothing being consciously transferred; what is agreed is what the parties understood or came to accept had always been the case; ‘the agreement is to identify and not to convey’, perPoole, and what the parties agree is ‘presumed to be the true and ancient limits Per Lord Hardwicke LC in Penn v Lord Baltimore (1750) 1 Ves Sen 444. ’.

[35]Establishing whether a particular agreement falls into one category or the other is often straightforward, but not always. This is an example of a case where the nature of the agreement is not wholly obvious on the face of it; I must ask myself what was the substance of the agreement, particularly given the lack of a written agreement.

[36]In Joyce v Rigolli

[2004] EWCA Civ 79

, Arden LJ found herself considering another case where the nature of the agreement had not been wholly obvious. There, Mr Rigolli had given up (or thought he had given up) a small triangle of land by a cherry tree, such that the agreed boundary might have encroached very slightly on the land of the appellant. Nonetheless, it was accepted that the agreement was nonetheless an agreement that merely demarcated the boundary; it did not purport to be a contract to convey and land from one party to the other, the purpose of the agreement “was to fix the boundary at about the place where they thought it ought to have been.” (at [29]). Arden LJ considered it important ([32]) to bear in mind the important public policy in upholding boundary agreements where possible, where pragmatic agreement had been reached and that requiring such agreements involving potentially minor deviations (here around a cherry tree) to be reduced to writing to be valid to be counter to that policy. Accordingly, where the land that falls to be ‘transferred’ (perhaps sub-consciously, but not necessarily) is trivial, section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, which requires contracts for the sale of land to be reduced to writing, was considered not to apply. Arden LJ held (at [33]) that it ‘is to be presumed, until the contrary is shown, that any transfer of land effected by a boundary agreement of the demarcating kind is trivial for this purpose’.

[37]In Nata Lee Limited v Abid

[2014] EWCA Civ 1652

, that ‘triviality’ exception was confirmed, Briggs LJ (as he then was) explaining that “there is to my mind a real difference between an agreement, the purpose of which is to move a boundary so as to transfer land from one neighbour to another, and an agreement the purpose of which is to define a previously unclear or uncertain boundary, even if that agreement may involve some conscious transfer of a trivial amount of land. The former agreement is subject to the formalities of the 1925 Act and the 1989 Act whereas the latter is not.”

[38]In Nata Lee, the boundary agreement was found to amount to a transfer of land, because there was an ‘extremely clear plan’ showing the boundary, and the agreement was pleaded as being designed to vary rather than demarcate the existing boundary. The finding was that the owners had ‘appeared to give this piece of land’ to their neighbour. But additionally, it was found that the land transferred was not, in the context trivial. It was a plot of land of about 3x4m, which in the context was found not to be trivial, even if it might have been ‘in the context of a field or a garden’ (here, it was enough to enable parking in an urban setting).

[39]Pulling all those points together, and given the findings set out above, I find as follows:a. It is true that there is no evidence before me to suggest there was an express agreement for a transfer of land. Indeed, as will be explored below, where the parties considered there to be a real transfer of land, they recorded that by way of a written agreement, as shown by the Transfer Deed relating to the Brown Land (which was for a far smaller area of land).

b. From the perspective of the Executors, they may have been very happy to ‘give away’ the White Land, which was probably viewed as being of limited utility or value, in return for which they were able to offer greater certainty and a cleaner title for the purpose of sale. From the perspective of Mr and Mrs Smith, they thought they were gaining land as a result of the transaction. The boundary was being ‘revised’ or ‘moved’ from their perspective. The fact that years later they applied to register the land by adverse possession rather than seeking to register it ‘as of right’ supports that belief.

c. Be that as it may, I consider from looking at the plans to the various conveyances set out above that in substance the western boundary of Willowdene following the transfer of the Triangular Land did not encompass the White Land. The White Land, being principally if not entirely what is now the steep embankment, remained in the title of Drakes Place. I consider Mr Smith may have been correct to think the line of the boundary was a little way up the embankment from his garden, albeit probably not as high up as he indicated on a plan (marked whilst in the witness box – at page 463 in the supplemental bundle). It does not matter, as I am only concerned with general boundaries. But I am wholly satisfied that the upper parts (at least) of the embankment sat within title to Drakes Place at the time of the boundary agreement.

d. The Applicants estimate that the total area of the White Land is approximately 250 square metres. I received no evidence to support that estimation, but I am prepared to accept that in broad terms, it is an area of that sort of magnitude. It is not enormous in the context of a field, but by contrast with the title to Willowdene, it is substantial (non-trivial) area. Indeed, maintaining the White Land would be quite an undertaking based on area alone, never mind taking the steep embankment into account.

e. Given the position of the parties is likely to have been that both considered there were benefits to fixing the boundary higher up than the plans suggested, I consider that in substance, the boundary agreement reached was one for the transfer of land. I consider it was known to both parties that the line that was agreed did not represent the line shown on the plans, and if I am wrong about that, Mr Smith at least did know this (he said so in terms) and the Estate at best gave it no thought but was at least told where Mr Smith thought the boundary was and instead suggested a line that suited them further up. On that basis, I consider the agreement was one for the transfer of land.

f. If I am wrong about that, and there was genuine uncertainty as to the boundary created following the transfer of the Triangular Land, I nonetheless do not consider that in context the land in question was trivial, for the reasons set out above, and that accordingly, the boundary agreement reached does not fall within the sort of category of cases to which section 2 does not apply.

[40]As a result, given the boundary agreement was not reduced to writing, I consider the agreement is void, and does not bind the Applicants.

Was there a mistake? Should it be corrected?

[41]The Registrar has power to alter the register for the purpose of (amongst other things) correcting a mistake: paragraph 5 of Schedule 4 to the Act. In addition, the register can be corrected for the purpose of bringing the register up to date.

[42]Ms Fisher for the Respondents submitted in closing that, even if the boundary agreement was not valid, the Applicants nonetheless could not show a mistake as all they could rely upon was their interpretation of historic documents which could not satisfy the evidential burden to prove there had been a mistake; they cannot, she says, establish where the true boundary should be – they have no expert evidence or factual evidence to establish where the boundary actually is on the ground, and the plans themselves are of small scale and imprecise. The evidence of the discussions on site proves the degree of uncertainty as to the location of the boundary, in her submission.

[43]The difficulties with those points, it seems to me, is that there is no dispute between the parties (nor any doubt in my mind) that the eastern boundary of Drakes Place adjoins the western boundary of Willowdene. There is currently an unregistered strip of land between the two (of some considerable size), and it must sit in one title or the other; it is unsatisfactory for this to be left to a failure of meeting the evidential burden of proof unless I am forced to that conclusion, given I know it must lie in one title or the other (or, conceivably, be split between the two although this strikes me as very unlikely on the facts). I must consider the evidence as a whole and reach my conclusion based upon that.

[44]Undertaking that task, as analysed above, I have found that the general boundary lies on the lower half of the steep embankment. Where precisely, I do not know. But this is not a determined boundary application, and the Applicants do not need to prove the precise (or near precise) line of the boundary in order for me to be satisfied that the current registered extent of Willowdene as shown on its title plan is correct. I am satisfied as to that for the reasons already set out – by having visited the land, by having considered various conveyances, and by a comparison of the relevant title plans (and by reference to features upon them including, most easily identifiable, the terrace / Brown Land area).

[45]That being so, I can be more than satisfied on the balance of probabilities that the White Land and the Triangular Land are separate pieces of land, and that accordingly, the White Land was never transferred out of Drakes Place (and thus still to this day forms part of the paper title). Land Registry also appreciated this when it came to the first registration of Willowdene – overlaying the plans from the original conveyance of Willowdene together with the plan to the 1981 conveyance with current OS mapping resulted in what we now see as the title plan to Willowdene.

[46]Had the Registrar appreciated the real extent of Willowdene’s title (and, if so informed of the same, that any boundary agreement was void), the Registrar would have included the White Land within title to Drakes Place on first registration – there having been a transfer of the whole title (TR1) rather than a transfer of land defined by a plan. Accordingly, there was in my judgment a mistake. If I am wrong about that, nonetheless, given my findings above, the register ought to be corrected in order to bring it up to date.

[47]Finally, and for completeness,(i) I do not consider this alteration amounts to rectification. The White Land is not a registered estate, and in any event, there is very little evidence as to who (if anyone) is in possession of it,

(ii) I do not consider there are any exceptional circumstances which justify not making this alteration.

The Brown Land

[48]Whilst the Applicants appear to doubt the same, I am entirely satisfied that:a. There was an agreement between the Respondents and the Executors for the sale of the Brown Land.

b. That agreement was set out in the Transfer Deed, which was in the form found at page 129 in the hearing bundle. Whilst there are several versions, the version at page 129 has the dimensions of 1x5x25 in box 4, and it is these dimensions (not the ones appearing on earlier versions) that are referenced in the later requisitions raised by the Registrar.

c. The Transfer Deed was validly executed by all parties and completed. I am satisfied as to this based principally upon the 1st May 2002 letter that confirmed the transaction had been completed, but also based on the evidence of Mr Croshaw referred to above and on the evidence of Mrs Smith as to what occurred at that time.

[49]The Transfer Deed was never registered; requisitions were raised by HM Land Registry due to a discrepancy between the dimensions shown in box 4 (1x 5x 25m, whatever that means, the three dimensions seemingly representing a solid object which is quite obviously wrong), and the dimensions of the land based upon the (scale) plan to the transfer. Mr and Mrs Smith were invited, by Russell & Co (who were acting for the Executors as vendor on the transaction, Mr and Mrs Smith taking no independent legal advice) to amend the Transfer Deed by deleting the dimensions so as to leave the plan as determinative of the extent of land transferred, but for reasons wholly unclear to me despite having heard from Mr and Mrs Smith on this, they did not take up that invitation either in 2002, or in 2003. Indeed, in 2002 it appears the Smiths told Russell & Co that the stated dimensions of 1x 5x 25m were correct, whatever they might mean, and unsurprisingly HM Land Registry remained unsatisfied. Was the Transfer Deed effective to transfer the Brown Land (subject to registration) or was it void for uncertainty?

[50]It is the Applicants’ case that the Transfer Deed fails to identify the property being transferred with sufficient certainty, and the result of that lack of certainty means there was not a concluded (binding) agreement between the parties. Ms Caney suggested that Mr Smith’s ‘doubling down’ on the dimensions of 1x 5x 25m being correct even upon requisitions being raised shows that the Respondents perhaps thought they were getting all of the terrace, including the land extending further south (i.e. the part belonging to the Old Dairy). She said that the lack of certainty means the transfer was void – it is incapable of being enforced by way of specific performance. As a result, she says, the Respondents did not acquire a legal or an equitable interest.

[51]Ms Fisher for the Respondents noted that there was quite clearly, in her submission, an agreement between the Respondents and the Executors. They all knew the land being transferred (i.e. the Brown Land), that was shown on the plan; there was, in her submission clearly no dispute or uncertainty between the parties as to the land being transferred. They had agreed a price. Solicitors had been instructed to give effect to the agreement, and that had resulted in the Transfer Deed. The transaction proceeded, she said, on a shared understanding.

[52]I accept Ms Fisher’s point that there is little doubt there was an agreement between the parties and that the parties were clear in their minds as to what the agreement was. However, the question I must ask is, objectively construed, was the agreement when reduced to writing in the Transfer Deed sufficiently certain? Just because the parties knew their minds doesn’t mean the Transfer Deed sufficiently recorded their agreement.

[53]Ms Caney relied upon Bushwall Properties Ltd v Vortex Properties Ltd

[1976] 1 WLR 591

in support of her submissions. In that case, the Court of Appeal held that an agreement for the sale of land was void for uncertainty, in circumstances where the parties had agreed (by way of exchange of letters) that the claimant would purchase land from the defendant in three phases, with a ‘proportionate part’ of the land being released on each phase turning on the amount paid for that phase. There was no agreed way in which the land to be included in each phase was to be determined (there was no power for any party to determine).

[54]In my view Bushwall doesn’t take matters terribly far. In that case, it was obviously unclear what land was to be transferred in each phase and there was no mechanism to resolve that uncertainty. By contrast, in the present case, the land to be transferred was the Brown Land. That was delineated on the plan attached to the Transfer Deed. The Transfer Deed states, expressly, in box 4 that the property transferred ‘is defined on the attached plan and shown edged red’. The fact that the description of the land in the wording above describes it as comprising ‘approximately 1 x 5 metres x 25 metres’ strikes me as somewhat superfluous. Firstly, the definition of the land transferred is that shown on the plan. Secondly, dimensions of a rectangle expressed as 1x5x25m make no sense at all (as this would constitute a 3-dimensional shape). In my view, properly construed, the erroneous dimensions can be effectively ignored; they are quite obviously both wrong and also non-determinative (and in any event expressed as ‘approximate’).

[55]Whilst I can understand HM Land Registry’s concerns as set out in the requisition, I find as a matter of law the Transfer Deed is not void for uncertainty. The land to be transferred will have been that shown in the plan annexed to the Transfer Deed. Whilst there is no copy of the executed Transfer Deed in evidence, nor is there is clear colour plan attached to the draft that is in evidence, I am satisfied on the balance of probabilities that the plan will have been in the form found at page 430 in the supplemental bundle. Indeed, the Registrar was obviously able to identify the Brown Land from the plan attached to the Transfer Deed, as it resulted in the production by the Registrar (see letter at page 455) of the plan found at page 457 in the supplemental bundle (with dimensions of 2.8x13m shown upon it), which is consistent both with the plan at page 430 and with the extent of the Brown Land in this application.

[56]All that being so, I find that, subject to the registration difficulties encountered, the Transfer Deed would have been enforceable and capable of transferring a legal interest in the Brown Land. Do the Respondents have a legal interest in the Brown Land such that there is no mistake to be corrected?

[57]Unfortunately, as already explained, ultimately the Transfer Deed was not registered, as a result of the Registrar not being satisfied as to the discrepancy between the dimensions and the plan.

[58]At the time of the transfer, the compulsory registration of an unregistered legal estate would have been triggered by the disposition – section 123(1) of the Land Registration Act 1925. A failure to register within the statutory period of two months (subject to the possibility of an extension of time) had the effect that the transfer was void at law.

[59]By section 123A Land Registration Act 1925, the Respondents were under an obligation to apply to the Registrar to be registered as the first proprietor of that estate within two months of the Transfer Deed (i.e. by 1st July 2002). They complied with that obligation – I do not know the precise date an application to register was made, but there is a letter of 23 May 2002 which shows the application had certainly been made by that date. Pending the application to the registrar, so long as a party was within the two month period (or any extension thereof) the disposition operated to transfer a legal estate in the land: s.123A(4).

[60]I am not told what happened to the application to register the Transfer Deed. I can only conclude on the evidence that ultimately the Registrar cancelled the application (certainly no one has suggested it remains pending today). Once cancelled, the effect would appear (by s.123A (5)) to be that in effect the Respondents have failed to comply with their duty, and thus the title to the legal estate will have reverted in or about 2003 to the then owner of the estate (Mr Airey) who then probably held the estate of the Brown Land on a bare trust for the Respondents.

[61]None of the parties addressed me on whether the equitable interest in the Brown Land would still bind the Applicants. The provisions of the Land Registration Act 2002 will have taken effect prior to the Applicants’ purchase on 24 March 2005, and it seems to me I should not engage in an analysis of the resulting position when I have not been addressed as to the same by the parties and when it is unnecessary to do so for the purpose of this application (as there is no application to note any beneficial interest in the Brown Land flowing from the Transfer Deed).

[62]Was there a mistake? In my view, there was not. At the time of application for first registration, and indeed at the time the registered title to Drakes Place was granted, the legal owners of the Brown Land were the Respondents. It is only at a later point in time that the legal interest reverted back, for want of registration.

[63]However, nonetheless, it seems to me that in order to bring the register up to date, the Brown Land ought to be shown as forming part of Drakes Place. That reflects the current position as to the legal ownership of the land.

[64]It is a matter for the Respondents to consider what (if anything) they might be able to now do in order to register the Transfer Deed.

Disposal

[65]In light of those findings, I shall direct the Chief Land Registrar to give effect to the whole of the Applicants’ application as if the objections of the Respondents had not been made.

[66]As I made clear to the parties several times, my jurisdiction is solely to determine whether the Application should proceed, in whole or in part. I am not determining the actual line of the boundary between Drakes Place and Willowdene, which remains a general boundary. As indicated above, I have found it lies within the embankment, in the lower half, potentially around where Mr Smith indicated on the plan at page 463 in the Supplemental Bundle but I suspect considerably lower than this. However, those observations are made in general terms to assist the parties and in no way bind a future court or tribunal if it were asked to determine the precise line of the boundary. My sincere hope is that, with the finding set out above, the parties (who are neighbours) can now find a pragmatic solution; in reality, the land has little practical utility to either party, particularly if the line lies part way up the bank.

[67]That leaves the question of costs. As the successful party, my preliminary view is that the Applicants are in principle entitled to their costs. At this stage I consider it likely that any costs claimed will be subject to detailed assessment on the standard basis, if they cannot be agreed between the parties, albeit depending on the quantum it is possible that standard assessment may be more suitable. I have not been given any indication of the likely quantum of the parties’ costs.

[68]If the Applicants wish to make an application for their costs to be paid by the Respondents, they should make that application in writing (by email to the Tribunal, copying in the Respondent) within 28 days of the date of this decision, setting out their submissions on the principle of costs and only giving summary headline detail of the quantum of those costs. The same applies in the event that the Respondents wish to make an application for their costs to be paid by the Applicants of course.

[69]I shall make directions providing for the replies to any such application to be provided 28 days thereafter. Such reply should set out the party’s position as to the principle of whether or not a costs order should be made only. There will then be a brief period for any brief response to the points taken in those replies. Upon receipt of those written submissions I shall determine the question of the principle of costs on the papers, without the need for a further hearing, and at the same time determine whether or not detailed or summary assessment of those costs would be most suitable. Dated this 25th day of June 2026 Judge Simon Allison KC By Order of The Tribunal