Did you miss? Crea v Camp [2025] EWHC 2638 (KB)

Crea v Camp [2025] EWHC 2638 (KB)

Boundary agreement – offer and acceptance- jointly instructed surveyor

The facts

This case concerned a typical boundary dispute between adjoining owners, the Creas and the Camps. The parties had agreed to instruct a joint expert to “assess” the boundary. The agreement was recorded in emails. The Creas first proposed a jointly instructed surveyor:-

2. As a surveyor has to be involved to assess the wall we will also ask him to assess the disputed boundaries. We suggest this is done jointly …”

The Camps responded:-

We are advised that the best way forward is to jointly instruct a Boundary Surveyor (who must be impartial by law) and agree beforehand to accept their result. They would need to be briefed by both parties and provided with all known documents to avoid duplicate costs.

The Creas replied:

“Thank you for your letter received today. We are content that a joint surveyor be appointed to assess the boundary and your suggestion of using Lewis Brown is acceptable. ….

You have not however addressed the issue of appointing a joint surveyor to assess if any remedial action is needed on our wall foundations. This will need to be a different surveyor from that appointed to assess the boundary dispute Do you wish to be jointly involved with this or shall we proceed with appointing a surveyor.”

Mr Brown was duly instructed to produce a report. His report started by stating his joint instruction and then explained:

“2.2 I was asked to ascertain the location of the legal boundary between the two properties forming”

The Creas were unhappy with Mr Brown’s report. They alleged bias and asserted that they had not “signed up” to a binding agreement as to the boundary.

The Camps pleaded case was that the Creas were bound by the report and boundary as determined within it and further that they were estopped from denying the boundary as recorded in the agreement. The trial judge found that the parties had entered a binding boundary agreement by accepting that the boundary was to be determined by a jointly instructed surveyor. ​

The Creas appealed the decision, questioning the validity of the agreement and the surveyor’s findings.

The Appeal

The Mr Justice Pepperall held that notwithstanding the fact that the law looks on boundary agreements with favour, there is no special rule in favour of construing the parties’ correspondence in this case as giving rise to a binding agreement to submit to expert determination of their boundary. Such question must be addressed on conventional contractual principles by reference to the parties’ letters and any other admissible evidence. He analysed the correspondence passing on an “offer and acceptance” basis.

The Judge held that the Camps’ email was a counter-offer, namely a response to the Creas’ original offer which, while accepting the kernel of the original offer in respect of the boundary, proposed some additional terms as to the proposed joint instruction and implicitly rejected the offer to agree a joint instruction for the purposes of surveying the alleged damage to the wall. This was then accepted by the Creas when they agreed the joint instruction of Lewis Brown and asked the Camps to proceed with contacting the firm. He Judge held that “the real question” was whether the Creas’ silence on whether they would be bound by the surveyor’s report negated an agreement from having been formed. The Judge noted that as a matter of contract law, statements that are not intended to vary the terms of the offer, or to add new terms, do not disqualify the acceptance. Applying these principles, the Judge concluded that the fact that the Creas’ letter did not invite further discussion of the terms and appeared to treat the parties’ agreement as having been concluded meant that on an objective reading of the correspondence the parties had entered into a binding agreement on the terms of the Camps’ counteroffer.

The appeal was dismissed.

Conclusion

The case is a cautionary tail of the reach of boundary agreements. Parties who jointly instruct surveyor to “assess” a boundary before solicitors are involved may be found that they are later stuck with the line plotted by the surveyor, even though it may bear little resemblance to what would be the ‘true legal boundary’. An interesting point not raised on this appeal is what would happen if the difference between the boundary “assessed” by the surveyor and the “true legal boundary” is more than “trifling”, will this negate the binding nature of the agreement applying s 2 of the of the Law Reform (Miscellaneous Provisions) Act 1989 and the ratio in Joyce v. Rigolli [2004] EWCA Civ 79, [2004] 1 P.&C.R. DG22? An interesting argument for another day.

Article by Lina Mattsson