Boundaries And The Interpretation Of Conveyances: Myths And Legends

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1 Boundaries And The Interpretation Of Conveyances: Myths And Legends The aim of this seminar is to examine a number of commonly held misconceptions about boundary interpretation the myths - and to look at one or two legends along the way. Myth 1: General boundaries Take the following, all-too familiar scenario: Neighbour X sees that the fence separating him from Neighbour Y does not accord with the plan of his title filed at HM Land Registry. According to this plan it appears that his garden should be 9 inches wider. While Neighbour Y is on holiday, Neighbour X moves the fence, repositioning it along the correct line. Neighbour Y returns from holiday and is incensed. A dispute ensues. Neighbour X engages a surveyor to plot the boundary for him. The surveyor scales measurements off the filed plan and confirms his client s view that the fence is now correctly located. Neighbour Y does not accept this, and engages his solicitor. Depending on the precise facts, Neighbour X may well be correct. But his approach is an extremely risky one to take. It is the risk faced by anyone who places total reliance on filed plans, or indeed any plan (such as a conveyance plan) which does not contain precise measurements from clear and existing datum points. It is surprising how many surveyors still focus on scaling measurements off small plans as the be-all and end-all of boundary disputes. Neighbour X, and his surveyor, have been taken in by the myth that registered boundaries are somehow definitive. They have overlooked, or failed to appreciate, the general boundaries rule, set out in s.60 of the Land Registration Act 2002: (1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section. (2) A general boundary does not determine the exact line of the boundary So the filed plan is usually no more than representational. It is usually drawn to a very small scale and cannot show matters of detail. Conveyance plans usually suffer from the same affliction, and have the added difficulty of often being expressed to be for identification purposes only. So anyone seeking to ascertain the legal boundary normally has to look well beyond it. 1

2 Judicial Legend: Mummery LJ Mummery LJ attempted to distil many of the important principles of boundary construction into a series of easy-to-follow principles in Pennock v Hodgson [2010] EWCA Civ 873. He said (and I paraphrase) that: 1. The starting point is to identify the conveyance which first separated the relevant properties the root conveyance. 2. It is necessary to then interpret that conveyance, especially any description of the properties in the parcels clause and any plan that is attached. He drew attention, however, to the dangers of over-reliance on plans. Like any question of construction, the task is to identify the intentions of the parties to the root conveyance. 3. If the parcels clause is unclear, the precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the root conveyance. 4. There is no reason for preferring a line drawn on a plan, even an Ordnance Survey plan, to other relevant evidence. This is a very useful starting point for anyone dealing with a boundary issue. For that reason, Mummery LJ gets my vote as a judicial legend! Extrinsic or background evidence is thus often useful, indeed often decisive. In our Neighbours X and Y example, the background material may be evidence about the location of the fence at the time of the root conveyance, perhaps from a predecessor in title or from an old photograph. Myth 2: Extrinsic evidence is always admissible A view sometimes encountered is that extrinsic evidence is always admissible in the construction of a conveyance, even if terms of the conveyance are clear. This is a myth. For many years the conventional wisdom was that extrinsic evidence cannot be used if the terms of the conveyance are clear. Thus, in Scarfe v Adams [1981] 1 ALL ER 843 Griffith LJ concluded that: "The principle may be stated thus: if the terms of the transfer clearly define the land or interest transferred extrinsic evidence is not admissible to contradict the transfer. In such a case, if the transfer does not truly express the bargain between vendor and purchaser, the only remedy is by way of rectification of the transfer." In more recent times, there was a tendency to doubt this approach, permitting a contextual interpretation in all cases. This approach seems to have been encouraged by the speeches of Lord Hoffman in Mannai Investment Co. Ltd v Eagle Star Life Assurance Co. Ltd [1997] AC 749 and ICS Ltd v West Bromwich BS [1998] 1 WLR

3 In Mannai, Lord Hoffman said this: The fact that words are capable of a literal application is no obstacle to evidence which demonstrates what a reasonable person with knowledge of the background would have understood the parties to mean, even if this compels one to say that they used the wrong words. In Partridge v Lawrence [2003] EWCA Civ 1121 Peter Gibson LJ referred to Scarfe v Adams (above),and said this: "With respect to the judge, the way he expresses the principle may not do sufficient justice to the now recognised principle, as stated by Lord Hoffman, that one construes a document against the background knowledge which would have been available to the parties. To that extent extrinsic evidence is always admissible." In Adam v Shrewsbury [2005] EWCA Civ 1006 Neuberger LJ also appeared to suggest that there should always be a contextual approach to construction. That this view is wrong, now appears to have been settled by a string of more recent cases. It is now clear that, at least in relation to conveyances, extrinsic evidence is not admissible to contradict clear terms. Thus, in Ali v Lane [2007] 1 EGLR 71 Carnwath LJ said this: In the modern law the conveyance is undoubtedly the starting point. It is only to the extent that it is unclear that extrinsic evidence may have a place. Similar views were expressed in Bradford v James [2008] BLR 538, Pennock v Hodgson [2010] EWCA Civ 873 and most recently of all in Norman v Sparling [2014] EWCA Civ 1152.It is now considered to be settled by authority that extrinsic evidence is not admissible if the terms of the conveyance are clear. In reality, however, there will be very few cases where the terms of the conveyance are so clear that a judge will refuse to admit extrinsic evidence. If the terms of the conveyance leave no room for doubt, the parties are unlikely to be in dispute about them. Myth 3: Subsequent conduct as extrinsic evidence Neighbour Y wants to adduce the following evidence: That the boundaries depicted in the root conveyance were considered to be unclear by the parties to it, so they went out and put posts in the ground at intervals where they intended the boundary to be. Some of the original posts still exist in the fenceline. Neighbour X s solicitor objects that this is evidence of subsequent conduct, and thus inadmissible as an aid to construe the contract. Neighbour X s solicitor is perpetuating another myth. It is correct that subsequent conduct is generally inadmissible to interpret a contract, but conveyances are thought to be in a special category of contracts that are not bound by this rule. In the above example, it would be an absurdity if the evidence was not admissible, as it was clear evidence of what the parties intended. 3

4 The leading case is Watcham v East Africa Protectorate [1919] AC 533, in which the Privy Council relied on evidence of the African land subsequently occupied by the Watcham family in order to construe the meaning of a conveyance which was contradictory as to the extent of the land sold to them. For many years, however, the principle underlying Watcham was widely criticised. More recently, doubts about it were expressed in Beale v Harvey [2004] 2 P & CR 18, where Peter Gibson LJ said this: "As for the argument based on subsequent conduct, I confess that I find strange the notion that the true intention of the parties to Mrs Harvey's Transfer as to what they intended to be the boundary line between their properties should be ascertained by reference to what the parties did in the first few months after the Transfer at a time when it had not been pointed out, nor had it occurred to either of them, that the wall and fence had been wrongly positioned. The authority relied on by Mr Ball for the admissibility of such evidence is the Privy Council decision in Watcham... Watcham on this point runs counter to the decisions of the House of Lords that subsequent actions cannot be legitimately used to interpret a written agreement." What Peter Gibson LJ was failing to recognise, however, was that whilst evidence of subsequent conduct may be inadmissible to construe documents in general, the rule was reasonably well established that conveyances were an exception. The approach in Watcham was thus applied by Megarry J in Neilson v Poole [1969] 20 P & CR 909, who said: "Yet modern conveyances are all too often indefinite or contradictory in their parcels. In such circumstances, to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy; and I have heard none." Peter Gibson LJ was also apparently forgetting his own earlier judgment in Clarke v O'Keefe [1997] 18 P & CR 126, in which he said that ignoring evidence of the parties' subsequent conduct would be "somewhat absurd"! More recently still, in Ali v Lane, Carnwath LJ concluded as follows: "The conclusion I would be inclined to draw from this review is that Watcham remains good law within the narrow limits of what it decided. In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended." This now seems to be a settled approach: see Piper v Wakeford [2008] EWCA Civ 1378 and, most recently of all, Norman v Sparling [2014] EWCA Civ In the latter case, the evidence of subsequent conduct was not only ruled admissible but decisive. Elias LJ held as follows: "The boundary itself cannot be precisely determined from the terms of the deed and therefore it is legitimate to see how the parties to the original deed conducted 4

5 themselves with respect to the property. The evidence was that Mr Birch, having gifted the property, sought thereafter to mark the boundary of the land he had gifted without any objection from his mother. Subsequently he allowed Mr Norman to plant bushes and other plants on his side of the bank without objection. He also, at the time of the conveyance of Arnwood from his mother to the Normans, put posts along the top of the bank to indicate the boundary line. In my judgment, this is highly probative evidence which justifies the judge's conclusion that the top of the bank marks the boundary." It is worth stressing the limitations on the permissible use of extrinsic evidence, whether it be contemporaneous or evidence of subsequent conduct. As we have seen, it cannot be used to contradict the clear words of a conveyance. Furthermore, it must be truly probative. If a boundary is fixed at a point in time, it will only be probative to admit evidence of physical features established on a subsequent date if there are grounds to conclude that the later features replaced original ones that existed when the boundary was fixed. Furthermore, the evidence must always be probative of the intentions of the original parties to the root conveyance. In Ali v Lane, Carnwath LJ left open the question of whether evidence of long and unchallenged conduct by later parties can ever be probative. To illustrate these points, consider a recent case in Birmingham in which I was involved. According to the root conveyance plan, the side wall of the claimant's house was 12 inches inside the boundary, which made sense because it allowed for the construction of eaves and footings without trespassing on the next door property. But there was evidence that subsequent owners of both properties had later granted each other reciprocal easements, and in the deed of easement there was a reference to the boundary being the side wall itself. The defendants relied on this subsequent conduct to assist their interpretation of the boundary line. The claimants countered that the evidence was not probative it did not reveal the intentions of the original parties and the purpose of the deed of easement was to grant reciprocal rights of drainage etc., not to define the boundary. There was no evidence that either party had given any thought as to precisely where the boundary may have been. It was probably no more than an assumption that the side wall marked the boundary. The case settled at trial, but it is considered that the claimant's argument would have prevailed. Legend 2: Guard against literalism The modern approach is not only to have regard to extrinsic evidence in the vast majority of cases, but also to be wary of taking written descriptions too literally. A straight line on a small scale plan is not necessarily intended to be a straight line on the ground, and descriptions in the parcels clause can often be imprecise or misleading. The danger of an overly literal interpretation is illustrated by the legend of the ruler Temures. Temures besieged the garrison of Sebastia. To end the siege he promised 5

6 the defenders that no blood would be shed if they surrendered. They surrendered, and (true to his word) he buried them alive. The tendency away from literalism in favour of a more liberal and contextual approach is well illustrated by Norman v Sparling [2014] EWCA Civ The issue in that case was whether the legal boundary ran along the top of a hedge bank, or at the base of it on Mr and Mrs Norman's side. The root conveyance contained some measurements, but there was uncertainty over which datum points had been used to produce them. Attempts by surveyors to plot the boundaries according to these measurements, using the most likely datum points, produced odd results, namely that the boundary ran half way up the hedge bank or bisected a long-established gate. Extraneous evidence, in the form of evidence of subsequent conduct, was therefore relied on to reach the conclusion that the legal boundary ran along the top of the hedge bank, even though this did not accord with any of the measured boundaries plotted by the surveyors. The court felt justified in taking this approach because "taking the boundary to be the top of the bank is within the limits of tolerance permitted by the description itself." The location of fences, hedges or other features will thus often play a decisive role in determining where the legal boundary is. Marc Wilkinson No5 Chambers + 44 (0) mw@no5.com 6