Lanfear and another v Chandler

Boundary dispute – Residential properties – Parties owning adjoining properties on same development – Dispute arising over position of boundary – Whether this determined by plan attached to original transfer and position of “T” marks thereon showing extent of responsibility under covenant to maintain fencing – Whether judge entitled to find plan countered by actual position on ground – Appeal dismissed The appellant and the respondents owned adjoining residential properties on a development that dated from the early 1970s. The respondents were the original purchasers of their property from the developer, while the appellant had acquired hers later. A dispute arose between them as to the correct position of the boundary between the two properties, with the respondents contending that the supports for a carport built by the appellant trespassed on their land. In proceedings between the parties on that issue, the respondents contended that the boundary followed the outer edge of a line of concrete edging stones that had been in place since the properties were first built. The evidence at trial indicated that there had originally been a line of fencing along that line, the supports for which faced the respondents’ side. However, the appellant contended that the boundary should be presumed to accord with the “T” marks shown on a site plan that had been attached to the original conveyances in 1971. The T marks were used to indicate the extent of the purchaser’s responsibility under covenants to maintain fencing; according to the appellant, those marks showed that a section of the fence, and the land that it occupied, was intended to belong to her property notwithstanding that, as built, the fence posts faced the other way. The plan, unlike the features on the ground, showed all the boundaries on the development as straight lines. In the court below, the judge found in favour of the respondents, holding that the boundary lay 5” from the wall of the side extension to their property and that the supports for the appellant’s carport trespassed on that land; he ordered the removal of the carport accordingly. In reaching that conclusion, he held that the developer was unlikely to have intended to convey to the purchasers of the appellant’s property the site of a fence whose posts faced away from it; he concluded that any inferences to be drawn from the T marks on the transfer plan were effectively countered by the position on the ground. The appellant appealed. She contended that there was a presumption of law that the use of T marks indicated ownership of the relevant boundary feature. Held: The claim/appeal was allowed/dismissed. (1) The parties’ title to the disputed land depended on what had been conveyed to them or their predecessors in title in 1971. The conveyances of the two properties were in materially identical terms and used a plan the scale and accuracy of which was insufficient to enable the boundary dispute to be resolved by a process of measurement. A lack of clarity in the conveyance plan or description could be resolved by reference to extrinsic evidence such as topographical features, by asking what the reasonable layman would think he was buying: Toplis v Green [1992] EGCS 20 applied. Reference to extrinsic evidence was therefore part of the process of construing the transfer or conveyance, rather than an alternative to it. For that reason, it was not permissible simply to disregard the words of the conveyance or the effect of the plan and look at the features of the site in isolation. The clearer the terms of the conveyance, the stronger the case would be for giving primacy to the terms of the transfer over inferences drawn from the position at the time on the ground; where the balance was struck would depend on the facts of each case: Pennock v Hodgson [2010] EWCA Civ 873; [2010] PLSCS 223 applied. (2) The use of T marks did not raise any presumption of law as to the ownership of the relevant boundary feature. Any such presumption would be contrary to principle and pre-empt the process of construction in which the court was engaged. Although there was a common and well-established practice of using T marks to identify the ownership of the wall or fence marking a boundary, whether that was determinative would depend on balancing it against the other relevant terms of the conveyance and the features of the plan, coupled, where appropriate, with evidence of the position on the ground. The court had to decide how the conveyance was to be construed by reference to all those elements; no one of them was conclusive: Seeckts v Derwent [2004] EWCA Civ 393; [2004] PLSCS 76 and Avon Estates Ltd v Evans [2013] EWHC 1635 (Ch); [2013] PLSCS 144 considered. (3) Applying those principles, the judge had reached the correct conclusion as to the boundary. In the 1971 conveyances, the T marks were used to identify the subject matter of express repairing covenants contained in the transfers. That covenant was not inconsistent with ownership of the fence belonging to a person other than the covenantor. The transfer plan was an inaccurate representation of the position on the ground as built since it assumed that the boundary was a straight line with a single fence along all or most of it, whereas the respondents’ property had not been constructed in that way and there had been various adjustments to the line, with different types of fencing along its different parts. The differences between the position on site and “the fence” referred to in the repairing covenant in the transfer created an ambiguity in the terms of the transfer, which fell to be resolved by reference to the position on the ground as it would have appeared to the reasonable layman at the date of the first purchase in 1971. Such a person would have regarded it as significant that the developer had chosen to mark the front boundary with concrete edging stones and had erected the boundary fence on the respondents’ side of the continuation of those stones, with the fence posts facing the respondents’ side. The reasonable layman would be likely to conclude that both sections of the fence were intended to belong to the owners of the respondent’s property, for whose benefit they had had been erected and by whom they were to be maintained. The judge’s order would therefore be upheld save to the extent of varying his order to incorporate a measurement in respect of which there was a discrepancy between the terms of the judgment and the order as currently worded. Roger Smithers (instructed by Blandy & Blandy LLP, of Reading) appeared for the appellant; Caley Wright (instructed by Pitmans LLP, of Reading) appeared for the respondents. Sally Dobson, barrister