Land registration: extrinsic evidence can aid construction

Where there are clear words and a clear plan, a court can rely on extrinsic evidence or prefer the construction which makes commercial common sense. In Dunlop v Romanoff [2023] UKUT 200 (LC); [2023] PLSCS 151, the Upper Tribunal (Lands Chamber) allowed an appeal against the First-tier Tribunal decision that a 1918 conveyance excluded a lane. The appellant owned Lunsford Farm in Pett, East Sussex. The respondent was his neighbour, the owner of Westcott. The parties had fallen out over the redevelopment of Westcott and the appellant sought to register title to a lane which provided access to both properties. The lane formed part of several thousand acres of land, including Lunsford Farm, which was the subject of a contract for sale on 24 September 1917. The conveyance of 6 June 1918, to the appellant’s grandfather, Thomas Dunlop, referred to an acreage of land “or thereabouts” including the plot number of the lane, but the land to be conveyed was identified as “more particularly delineated on the plan… coloured pink” which clearly excluded the lane. The FTT, following authorities that a plan expressed to be definitive will normally take precedence over a verbal description, decided that the clarity of the plan prevailed over the wording of the conveyance: see Network Rail Infrastructure Ltd v Freemont Ltd [2013] EWHC 1733 (Ch). A claim in adverse possession also failed. On appeal, the UT agreed that the plan to the 6 June 1918 conveyance was clear and excluded the lane, but the areas to be conveyed, including the lane, were precisely described in the schedule. So, there was an inconsistency between clear words and a clear plan. In determining that the lane was included in the 6 June 1918 conveyance, the tribunal relied on two principles: The ability to look at extrinsic evidence where the conveyance did not tell the whole story. This was overwhelmingly in favour of the schedule to the conveyance. Thomas Dunlop was party to a conveyance of Westcott, also dated 6 June 1918, in order to grant to the purchaser rights of way over the lane. He was also party to other conveyances of 1918 and 1933 which granted rights of way over the lane. If in doubt, the construction that makes business common sense is to be preferred. It made no business sense for parties who were contractually bound to convey the lane to the appellant’s grandfather not to do so. Alternatively, the UT considered that a corrective interpretation – to revise the plan to include the lane – was legitimate. Louise Clark is a property law consultant and mediator