Brown and another v Pretot and another
Sir Andrew Morritt C and Hooper and Rafferty LJJ
Boundary dispute – Adjacent properties on new development sold to parties by developer – Whether boundary as shown on plan attached to transfer for identification purposes only – Whether boundary reflecting actual position of boundary fence and garage at time of transfer – Judge holding that fence not accurately reflecting boundary – Appeal allowed
In July 1999, the appellants contracted to purchase one of the plots on a new housing estate from the developer. The sale contract incorporated the terms of the subsequent transfer, which defined the land sold by reference to a plot number, described that plot as being edged in red on a plan annexed “for the purposes of identification only”, and described the premises as comprising a house, a garage “built within the plot” and a garden. The transfer contained a covenant by the purchaser to maintain the fences marked on the plan; the fence on the eastern boundary was shown to be the appellants’ responsibility while that on the western boundary was the responsibility of the owners of the adjacent plot. At the time of the contract, neither the garage nor the western boundary fence had yet been built. These were erected before the sale was completed in August 2011, but not in the position shown on the plan. The respondents subsequently purchased the adjacent plot from the developer.
The appellants brought proceedings to resolve a dispute over the correct position of the western boundary. The respondents contended that the fence did not accurately reflect that boundary, as shown on the plan, and that a triangular area of land on the appellants’ side of the fence in fact belonged to the respondents. Although part of the appellants’ garage lay on the disputed land, the respondents did not claim to own any part of the garage. The appellants accepted that the plan was sufficiently precise to show the western boundary, but contended that regard should also be had to the position on the ground at the time of the conveyance to them in August 2011.
In the county court, the judge found in favour of the respondents and declared that the boundary ran from a point consistent with the plan at one end to the corner of the appellants’ garage at the other. The appellant appealed.
Boundary dispute – Adjacent properties on new development sold to parties by developer – Whether boundary as shown on plan attached to transfer for identification purposes only – Whether boundary reflecting actual position of boundary fence and garage at time of transfer – Judge holding that fence not accurately reflecting boundary – Appeal allowed
In July 1999, the appellants contracted to purchase one of the plots on a new housing estate from the developer. The sale contract incorporated the terms of the subsequent transfer, which defined the land sold by reference to a plot number, described that plot as being edged in red on a plan annexed “for the purposes of identification only”, and described the premises as comprising a house, a garage “built within the plot” and a garden. The transfer contained a covenant by the purchaser to maintain the fences marked on the plan; the fence on the eastern boundary was shown to be the appellants’ responsibility while that on the western boundary was the responsibility of the owners of the adjacent plot. At the time of the contract, neither the garage nor the western boundary fence had yet been built. These were erected before the sale was completed in August 2011, but not in the position shown on the plan. The respondents subsequently purchased the adjacent plot from the developer.The appellants brought proceedings to resolve a dispute over the correct position of the western boundary. The respondents contended that the fence did not accurately reflect that boundary, as shown on the plan, and that a triangular area of land on the appellants’ side of the fence in fact belonged to the respondents. Although part of the appellants’ garage lay on the disputed land, the respondents did not claim to own any part of the garage. The appellants accepted that the plan was sufficiently precise to show the western boundary, but contended that regard should also be had to the position on the ground at the time of the conveyance to them in August 2011.In the county court, the judge found in favour of the respondents and declared that the boundary ran from a point consistent with the plan at one end to the corner of the appellants’ garage at the other. The appellant appealed.
Held: The appeal was allowed.The court had to construe the terms of the transfer as a whole as at the date of the conveyance and resolve any contradictions. Save so far as it placed the garage within the plot, the parcels clause in the transfer was not sufficient to identify the boundaries. Although it referred to the plan, that plan was for the purposes of identification only. While such a plan could be taken into account if the parcels clause was inadequate to define the boundaries with precision, the plan in the instant case conflicted with the parcels clause, so far as the latter defined the garage as “built within the plot”. The whole of the garage was therefore within the plot transferred to the appellants, and, to the extent that the boundaries marked on the plan would have placed part of it outside the plot, that plan did not show the correct western boundary.In a dispute with the features of the instant case, the court had to interpret the conveyance having regard to the actual and known physical condition of the relevant land at the date of the transfer, rather than having regard to the intention of the parties at the time of the contract: Pennock v Hodgson [2010] EWCA Civ 873; [2010] PLSCS 223 and Partridge v Lawrence [2003] EWCA Civ 1121; [2004] 1 P&CR 14; [2003] PLSCS 173 applied; Spall v Owen (1981) 44 P&CR 36 distinguished. The transfer was to be construed in the light of its terms and the objective circumstances existing at the time of the conveyance. A plan for the purposes of identification would not necessarily take precedence and did not necessarily show the true boundary. The western boundary fence, responsibility for which was shown in the transfer as lying with the owners of the respondents’ plot, could only sensibly mean the fence erected by the time of the transfer. On the facts of the case, the boundary shown on the plan had to give way to the actual position of the garage and fence, taking into account the parcels clause and the fencing covenant. It would be remarkable if the plan took precedence so that a portion of the appellant’s garage had not been conveyed to them, but had instead been retained by the developer and now belonged to the respondents.
David Holland QC (instructed by Lamb & Holmes, of Kettering) appeared for the appellants; Alasdair Wilson (instructed by Turner Coulston, of Northampton) appeared for the respondents.
Sally Dobson, barrister
