Harrison and another v Brading

Boundary dispute – Title to land – Residential properties – Parties owning adjoining properties previously forming part of single farm – Dispute arising over position of boundary between properties – Whether boundaries being changed by earlier conveyance – Whether either party acquiring land by adverse possession – Whether part of boundary being settled by boundary agreement – Boundary determined In 1999, the defendant purchased a property known as Cathole Manor Farm (the old farmhouse), near Ilmington in Warwickshire. In 2009 the claimants purchased an adjoining property known as Cathole House, which had been built in the early 1970s. An issue arose concerning the boundary between two properties which were formerly parts of a single farm. In 1989, the then owner (T) sold the old farmhouse to B. A plan attached to the conveyance showed an area of land and gave dimensions for most of the boundary. A number of “T” marks on the plan were referred to in the conveyance as showing fences or walls. It appeared that the fencing between the gardens of the properties had been in the same position since the 1970s. In about 2010, the defendant built a retaining wall along the line of an old tumbledown wall near the eastern boundary. Disputes developed between the parties over the position of the eastern boundary south of the orchard (“area A”); and the southern boundary between the gardens (“area B”). The matters for the court’s determination were: (i) the boundaries of the land conveyed by the 1989 conveyance; (ii) whether either party had acquired land by adverse possession; and (iii) whether the boundary in area A had been settled by a boundary agreement, arising from events in 2011, after the claimants returned from holiday to find that the defendant had planted laurel bushes next to the retaining wall in area A and, following a lengthy exchange of correspondence, agreed to tolerate a fence being erected temporarily, until the issues between the parties had been resolved. Held: The boundary was determined. (1) The construction process started with the conveyance which contained the parcels clause describing the relevant land. The conveyance was to be looked at in the light of the circumstances which surrounded it. The effect of the conveyance was not determined by evidence of what the parties to it believed it meant but what, against the relevant objective factual background, they would reasonably have understood it to mean. On the other hand, subsequent conduct of the parties to a conveyance could sometimes be relevant. In principle, reference to the intentions of the parties meant the parties to the original conveyance. In approaching the relevant law, it was essential to keep in mind the distinction between a plan which was said to be for identification and a plan which defined a property. A plan that defined the property had to be accorded full weight: Ali v Lane [2006] EWCA Civ 1532; [2007] 1 EGLR 71, Pennock v Hodgson [2010] EWCA Civ 873; [2010] PLSCS 223, Dixon v Hodgson [2011] EWCA Civ 1612, Lanfear v Chandler [2013] EWCA Civ 1497; [2013] PLSCS 281 and Norman v Sparling [2014] EWCA Civ 1152 considered. In the present case, on the true construction of the 1989 conveyance, the southern boundary followed the physical features and ran along the garden fence so that the conveyance to B did not include any part of area B. However, as regards area A, the conveyance had served to give B a strip of field and orchard to the east of the retaining wall. (2) The evidence did not come close to establishing possession by the defendant, or his predecessor, of area B, and adverse possession in relation to it could not be established. Moreover, on balance, in the light of the expert evidence, no land had been acquired in area A by adverse possession: J A Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419; [2002] 28 EG 129 applied; Powell v McFarlane (1977) 38 P & CR 452 considered. (3) An agreement to demarcate an unclear boundary was binding on the parties and bound successors in title without the need for a written agreement. Further, a boundary agreement was in its nature an act of peace, quieting strife and averting litigation and so was to be favoured in the law: Neilson v Poole (1969) 20 P&CR. 909, Haycocks v Neville [2007] EWCA Civ 78; [2007] 1 EGLR 78 and Stephenson v Johnson [2000] PLSCS 162 applied. In the present case, on balance, the conduct of the parties had not established that a boundary agreement had ever been concluded. The claimants had indicated that they were seeking a single comprehensive agreement and that the fence was to be no more than a temporary measure in the meantime. The boundaries had not changed since 1989. Anthony Verduyn (instructed by Broomfields Solicitors LLP, of Lutterworth) appeared for the claimants; Matthew Haynes (instructed by Moore & Tibbits, of Warwick) appeared for the defendant. Eileen O’Grady, barrister Click here to download the transcript of Harrison and another v Brading