#14794 - Boundary Dispute - BPC Property and Chancery

PRINCIPLES 1

RULES 2

General boundaries rule 2

Title deeds 2

Title plan 2

Where is the boundary line? 3

‘For identification only’ 3

‘More particularly delineated’ 3

‘Delineated’ 3

Both forms of words 3

No words 4

‘T marks’ 4

Extrinsic evidence 5

PRESUMPTION 7

'Hedge and ditch' presumption 9

Boundary agreements 9

Determination by registrar 10

How does a court decide? 10

• A boundary separates the land owned by one person from their neighbour.

• A general boundary is an imaginary line dividing one person’s property from another. It is rarely identified with precision on the ground or in documents.

• Section 60 of the Land Registration Act 2002 provides:

1. the boundary of a registered estate shown for the purposes of the title register is a general boundary, unless shown as determined under this section, and

2. a general boundary does not determine the exact line of the boundary

• All boundaries shown on title plans that are produced by the Land Registry are subject to the general boundaries rule.

• This rule means that the precise line of a boundary is undetermined by the Land Registry unless an application is made for it to be fixed. In Drake, it was emphasised that the boundary line on a title plan is just a general boundary and cannot show the precise boundary between two properties.

• In Lee, the contract plan and the transfer plan showed a plot of land with irregular boundaries and these had been marked out on the site by pegs. The Land Registry title plan showed a plot with regular boundaries. The defendant built his house based on the title plan and the claimant brought an action for trespass. The claimant was entitled to seek relief. It was held that the general boundaries rule is confined to the effect of the title plan only. It does not allow the registrar or the court to alter the effect of a transfer plan, which represents the contractual bargain between the parties.

• Title deeds constitute the primary evidence and the boundaries indicated in them prevail if they are clear and unambiguous. The starting point is the parcels clause in the conveyance.

• Generally, where a deed describes the boundaries by reference to known physical and natural objects and also contains a statement of area, the former takes precedence in case of discrepancy.

• If reference is made to a physical object not yet in existence but subsequently erected to conform with the deed, that physical boundary is binding upon them, even if it differs from the boundary line or area in the deed. [Alan Wibberley Building v Insley [1999] 2 All ER 897]

• A title plan is based on Ordnance Survey mapping and shows:

1. the ordnance survey map used to prepare the title plan

2. the north point

3. any building, walls fences or hedges represented by a black line

4. the general boundary of the land indicted by a red line

5. (sometimes) measurements that have been taken from deeds when the land was registered/agreement reached by way of a deed that has been used to update the register

If a plan is taken from an ordnance survey map the boundary line is taken to be the centre line of any boundary feature eg a hedge.

• The description in the title deeds should be sufficient to allow the extent of the property to be determined, but there may be discrepancies between the description used in the document and the plan.

• If the exact boundary needs to be established, it will almost always need to be supplemented by inferences that can be drawn from topographical features that existed when the documents were entered into.

• A plan stated to be ‘for the purposes of identification only’ does not define precise or exact boundaries. It does not override the verbal description.

• If the conveyance specifies that a particular acreage is to be transferred, but the land within the boundaries on the plan is less, the acreage takes precedence. However, this does not prevent the court using the plan to assist in understanding the description, provided it does not contradict or control it.

• In Brown, the Court of Appeal made it clear that a plan attached to a contract and transfer for identification purposes only does not necessarily take precedence over other extrinsic evidence as to the true boundary.

• Where registration is required, Land Registry practice is that plans described as for the purposes of identification only will be rejected.

• Where land is referred to as being ‘more particularly delineated’ on the plan, this tends to show that the plan is to take precedence in the case of uncertainty.

• In Network Rail, a lease stated that the premises were ‘delineated’ on the plan. The High Court confirmed that ‘delineated’ should bear its dictionary meaning, namely that it showed the outline of the demised premises. Therefore, the lease wording indicated that the plan was intended to define the boundaries.

• In Avon, the High Court confirmed where both forms of words are used, ‘the draughtsman has achieved neither one thing nor the other and the two expressions may be said to be ‘mutually stultifying’'. The issue of which is to be given priority is of importance where there is some apparent inconsistency between the parcels clause and the plan. In Avon there was no such inconsistency.

• The court did not consider ‘identification’ is in all cases limited to identifying the location of a piece of land in a general or approximate way. As a matter of ordinary language if a parcels clause gives a non- specific description of land referred to as ‘more particularly delineated for the purposes of identification’ on a plan, the more particular delineation on the plan assists in identifying the location extent and boundaries of the land, as long as it is not inconsistent with the parcels clause.

• This remained the same whether the word ‘only’ was present or not. That word might have the effect of subordinating a plan to the body of a conveyance where the two are inconsistent, but where they are not and the plan adds to and clarifies the meaning of the words used its relevance to construction is not removed by the addition of the word ‘only’

• If there are no words indicating the importance of the plan, but the land is described by reference to one, the inference is that the parties intended the plan to show the boundaries. However, the document must be construed in the light of the actual circumstances at the time and what a reasonable layman would think he was purchasing.

• In Beech, the Court of Appeal confirmed that although the plan was not described as being for identification only, the smallness of its scale and the fact that it was hand-drawn, led to the inevitable inference that the reference on it to a hedge was the key determining feature of the boundary. The measurements, though doubtless intended to assist, did not appear to be accurate and were consistent with both parties’ contentions as to where the boundary lay. They did not override the line of the hedge as the chosen boundary to the extent that they were inconsistent with it.

• In Cameron, the Court of Appeal confirmed that mismatch between a clear plan and the actual physical features on the ground is not, in itself, justification to ‘ditch’ the title documents and determine the position of the boundary by reference to topographical features alone. However, even where a plan is not marked as being for identification only, if the document is insufficiently clear to the reasonable layman with the plan in his hand to determine the position of the boundary, the court can seek assistance on construction of the plan and title documents by taking account of the topographical features at the relevant date.

• In Avon, there were ‘T’ marks drawn on one section of the boundary on the plan, but there was no reference to them elsewhere in the conveyance. The court confirmed there was no single meaning or default meaning established by the evidence or authority that could be attached to ‘T’ marks where a meaning could not be ascertained by reference to the body of the conveyance or other admissible material.

• The construction of a deed is always a matter for the court. Extrinsic evidence of all material facts existing at the time of execution of the deed is admissible, so that the court may have the same knowledge as the parties had at the time. Extrinsic evidence is admissible only if the terms of the transfer do not clearly define the land transferred.

• If there is a dispute over a position of a boundary and it is clear from the title deeds where the boundary lies, extrinsic evidence will not be allowed and the title deeds cannot be contradicted.

• There is often therefore a dispute as to whether or not the position of the boundary is so clear as to not allow extrinsic evidence. If it is unclear, extrinsic evidence can be used. This may include:

1. sale particulars or photographs from estate agents or from an auction

2. pre-contract enquires and the replies

3. historical statutory declarations or witness statements

4. physical features of the property boundary on the site

5. historic maps

6. old abstracts of title

• In Pennock, the Court of Appeal held that the judge at first instance had been entitled to look at the physical features on the ground at the time of the relevant conveyance, where the plan was insufficiently clear. This was permissible in construing the conveyance against the surrounding circumstances which included the knowledge of the objective...