Todd v Marsh: High Court upholds paper title boundary over long-standing deer fence

A dog and deer proof fence standing several metres inside the paper title line did not move the boundary, and an exchange of neighbourly emails about repairing it did not amount to a boundary agreement.

In Todd and Hodge v Marsh, Marsh and Tapstone Ltd [2026] EWHC 1701 (Ch), handed down on 10 July 2026, Mr Justice Michael Green dismissed an appeal from HHJ Parker in the County Court at Hastings, upholding the finding that the boundary between Wyland Wood in East Sussex and the neighbouring land lies where the registered title plan and the historic conveyances place it.

A fence in a convenient place

The appellants bought Wyland Wood in 2018 from a vendor who then owned all three adjoining titles. The fence, in place at the time of sale, ran parallel to the paper boundary but between 6.37m and 11.37m onto the retained land. Both experts agreed the paper line followed an old tree line and matched a 1970 conveyance and the 2003 first registration.

The trial judge found no clear evidence of when the fence was erected, and, the titles having been in common ownership for much of the intervening period, no evidence that it was ever intended to mark a boundary. On her site visit she saw wire fragments embedded in a tree along the old line. The fence, she observed, sat on flatter ground away from the trees, which is convenient for anyone building it who owns both sides.

An error that went nowhere

The judge had stated that the general boundaries rule under section 60 of the Land Registration Act 2002 "does not apply" because the conveyance was clear. That was wrong: the rule applies to any registered boundary not determined under the section, and the parties agreed as much.

Green J held that the misstatement did not matter. Read in context, and against the accurate statement of the rule two paragraphs earlier, the judge was in substance applying it. She construed the 2018 transfer against the historic conveyances, as Alan Wibberley v Insley and Pennock v Hodgson require, and found the line consistent throughout. She then went on to consider the extrinsic evidence in any event. The point, he said, goes nowhere.

Expert evidence that almost no purchaser of such a house would commission a boundary survey, and that none could have detected the discrepancy without one, had been considered and found insufficient to displace an unambiguous transfer. Purchasers and their solicitors must satisfy themselves that what is on the ground matches the title, by enquiry, inspection or survey. Those who do not proceed at their own risk.

Decisive support came from the respondents' notice. Had the fence been the boundary, the vendor would have retained a parcel of land accessible from nowhere, and the third respondent would have knowingly bought a landlocked plot. No reasonable party could have understood the transfer to mean that. Green J described this as a powerful further factor, while making clear the judge's reasoning would have stood without it.

Neighbourly repairs are not agreements

The 2019 emails referred to "the boundary fence" and to each party's side of it, and the vendor agreed to share repair costs without correcting those descriptions. He told the court that fixing a fence was a neighbourly thing to do, and that he knew a fence is not a boundary.

Silence in the face of a mistaken statement may sometimes signal acceptance. But the judge was entitled to find that the vendor never turned his mind to where the line ran, and so could not have been ad idem. Nothing required resolving at the time, and he was never asked to confirm the position.

Had there been an agreement, it would have transferred roughly half an acre, some 18.5 per cent of a 2.7 acre property. Following Joyce v Rigolli and Alder v White, that is no trivial demarcation, and section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 would have required writing.