A friendly email about splitting the cost of storm repairs to a fence is not a boundary agreement. That is the short lesson from Todd v Marsh (EWHC 1701 (Ch), 2026), a High Court decision on a boundary dispute in East Sussex that turned on half an acre of woodland and a few lines of correspondence [1]. For homeowners in Kingston upon Thames, the words "your side" and "our side" in a neighbourly message do not move the legal boundary.
Key Takeaways
- A 2019 email exchange about fence repairs did not create a binding boundary agreement, because there was no conscious meeting of minds about the boundary [1].
- Even if the neighbours had agreed, the strip was not trivial, so the agreement would have needed to be in writing under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 [1].
- Both parties' expert surveyors agreed the paper title boundary followed an old tree line, not the fence, and that shared conclusion carried the case [1].
- Title plans show general boundaries only under section 60 of the Land Registration Act 2002, so a fence line is not proof of ownership [2].
- Expert evidence under CPR Part 35 often decides the outcome, and a single joint expert can save cost in lower-value disputes [3].
The Facts of Todd v Marsh
The appellants, the Todds, owned Wyland Wood in Robertsbridge, East Sussex. The respondents, the Marshes, owned the neighbouring land. The Todds argued that a "dog and deer proof fence" marked the true boundary. The fence ran roughly parallel to the paper title boundary, but about 6.37 to 11.37 metres onto the Marshes' side. The strip between the two lines came to about half an acre, roughly 18.5 per cent of a 2.7-acre property [1].
The Todds relied on a 2019 email exchange with the previous owner, Mr Baldwin, about storm damage to the fence and splitting the repair cost. The emails referred to "your side" and "our side" of the "boundary fence". The County Court held that the paper title boundary applied and no binding boundary agreement existed. The Todds appealed to the High Court (Chancery Division) on two grounds, and both failed [1].
What the Court Decided on the Emails and Section 2
The High Court found no evidence of a conscious meeting of minds intended to fix the boundary. The emails concerned practical fence repairs, and Mr Baldwin gave credible evidence that he acted in a "neighbourly" way without considering the boundary [1].
The court went further. Even if an agreement had been reached, the strip was not trivial. A transfer of non-trivial land must satisfy section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, which requires writing. An informal exchange about repair costs did not meet that test [1].
On the general boundaries point, the County Court had correctly applied section 60 of the Land Registration Act 2002. The 2018 transfer was clear and unambiguous read with the historic conveyances back to 1970. The paper title boundary stands [1].
The General Boundaries Rule Explained for Kingston Homeowners
Many owners in Kingston assume the red line on their title plan is an exact record of where their land ends. It is not. Under section 60 of the Land Registration Act 2002, a title plan shows a general boundary only, unless the boundary has been formally determined [2].
The precise legal line depends on the original conveyance, its plan and description, and the physical features on the ground at the time [2]. This matters in the Victorian terraces of Norbiton, the Edwardian semis around Surbiton and the long rear gardens of Canbury, where fences have often been replaced several times and drifted a little each time.
Owners who want certainty can apply for a determined boundary under rule 118 of the Land Registration Rules 2003, which needs a precise plan and, in practice, the neighbour's agreement or a tribunal decision [2].
What the Surveyors Agreed in This Boundary Dispute and Why It Mattered
Both parties instructed their own expert surveyors, and both agreed that the paper title boundary followed an old tree line rather than the fence [1].
That agreement narrowed the case. With the physical evidence settled, the only live question was whether the emails had changed the legal position. They had not [1]. Where surveyors agree, parties can focus on the legal issues, or settle.
The Expert Evidence Angle: How Boundary Surveyors Build a Case
Expert surveyors in boundary litigation owe their duty to the court, not to the party who pays them. CPR Part 35 sets out that duty and the form a report must take [3]. A credible report draws on four strands of evidence.
Measured survey
An accurate measured survey records fences, walls, hedges and building lines to a precise grid, giving a base map onto which all other evidence is plotted.
Ordnance Survey and conveyance plan analysis
The surveyor examines the title plans, successive Ordnance Survey editions and, above all, the plans attached to the original conveyances. Scaling from old plans needs care. In Cunningham v Holehouse (UKFTT 771 (PC), 2026), the First-tier Tribunal held that a "15 feet" figure on a 1987 conveyance plan marked "for identification purposes only" was indicative only and could not fix the line [4][5].
Historic photographs and physical features
Aerial photographs and planning records show where features stood at key dates. In Cunningham, the tribunal found that a shed and carport existed at the conveyance date, and held that the boundary followed a fence erected afterwards [4][5]. Old posts, changes in wall construction and tree lines often mark earlier boundaries, as the tree line did in Todd v Marsh [1].
Lessons from Cunningham and Gibson
Cunningham also carries a warning about cost. Each side instructed an expert, the experts disagreed, the determined boundary application was cancelled, and the tribunal's preliminary view was that the unsuccessful applicants should pay the respondents' costs. The title plan remains a general boundary [4][5].
Gibson v New (EWHC 1862 (Ch), 2026) shows what happens when a surveyor's determination is agreed but ignored. In a 2015 mediated settlement the defendants agreed to accept a surveyor's determination but did not implement it. The dispute over a garden strip a few inches wide ran for 13 years before the High Court upheld damages of £9,000, reduced from £9,500, with a costs order [6].
When to use a single joint expert
CPR 35.7 allows the court to direct that evidence be given by a single joint expert, which is often appropriate in lower-value neighbour disputes [3]. One expert instructed by both sides removes the risk of duelling reports and keeps costs proportionate. Kingston Surveyors act in both roles.
Practical Steps Before Writing to a Neighbour About a Fence
A few steps reduce the risk of a boundary dispute escalating.
- Read the title documents first. Obtain the title register, plan and original conveyance if available. The plan shows a general boundary only [2].
- Avoid labelling the fence as "the boundary" in writing. Describe the fence as the fence. The emails in Todd v Marsh did not change the boundary, but they generated years of litigation [1].
- Record the current position. Dated photographs of posts and walls provide useful evidence later.
- Commission a boundary survey early. A measured survey and plan analysis from a chartered surveyor, such as Kingston Surveyors' boundary survey service, often resolves the question before solicitors are involved.
- Consider a determined boundary. Where neighbours agree, an application under rule 118 fixes the line for the future [2].
- Follow through on any agreed determination. Gibson v New shows the cost of agreeing a route to settlement and then failing to implement it [6].
Frequently Asked Questions
Does a fence show where the legal boundary is?
Not necessarily. A fence is physical evidence, but the legal boundary depends on the conveyance documents. In Todd v Marsh, the fence sat several metres from the paper title boundary [1].
Can an email with a neighbour create a boundary agreement?
Only in limited cases. An informal agreement can bind where it merely clarifies an uncertain line. Where it would move non-trivial land, section 2 of the 1989 Act requires writing [1].
What is a general boundary on a title plan?
Under section 60 of the Land Registration Act 2002, a title plan shows the general position of the boundary, not its exact line, unless it has been determined [2].
Should both neighbours instruct their own surveyor?
In lower-value disputes a single joint expert under CPR 35.7 is often more proportionate [3]. Cunningham v Holehouse shows how two disagreeing experts can leave a title plan unchanged and the applicant facing costs [4][5].
How long can a boundary dispute last?
Gibson v New ran for 13 years over a strip a few inches wide, even after a mediated settlement in 2015 [6].
Conclusion
Todd v Marsh confirms three points for Kingston homeowners. A neighbourly email about fence repairs is not a boundary agreement. Where land of real value is at stake, only writing that satisfies section 2 of the 1989 Act will do. And the paper title, read with historic conveyances and interpreted by expert surveyors, decides where the boundary lies [1].
The next steps for anyone unsure about a boundary in Surbiton, Norbiton, Canbury or elsewhere in south-west London are straightforward. Obtain the title documents, avoid informal statements about where the boundary runs, and instruct a chartered surveyor to prepare a measured survey and plan analysis. If a dispute has begun, agree a single joint expert where possible and implement any determination that follows.
References
- Charles Russell Speechlys, "No trivial matter: what Todd v Marsh tells us about informal boundary agreements", 2026. charlesrussellspeechlys.com.
- Land Registration Act 2002, section 60. legislation.gov.uk.
- Ministry of Justice, Civil Procedure Rules Part 35. justice.gov.uk.
- Cunningham v Holehouse 2026 UKFTT 771 (PC), Find Case Law. caselaw.nationalarchives.gov.uk.
- Charles Russell Speechlys, "General boundaries rule succeeds in boundary dispute between neighbours", 2026. charlesrussellspeechlys.com.
- Holmes & Hills, "Neighbour dispute ends after 13 years: High Court upholds damages award in long-running boundary battle", 4 August 2026. holmes-hills.co.uk.
