Scott v Martin and another

Land registration – Boundary dispute – Conveyance – Two parcels of unregistered land being conveyed by common vendor – Conveyance including inadequate parcels clauses and inconsistent plans – Dispute arising as to ownership of “orphaned” parcel of land – First-tier Tribunal directing first registration in favour of respondents – Appellant appealing – Whether vendor retaining land following second conveyance – Appeal allowed A boundary dispute arose between the registered proprietors of two parcels of land, originally part of a single farmstead at Low Cotehill, Cumbria, which were conveyed separately, in 1986 and 1991. The 1986 conveyancing used an inadequate plan to show the intended boundary across an open yard separating the farmhouse retained by the vendor and a barn conveyed to the purchaser. When the farmhouse was sold in 1991, the boundary through the yard was shown in a different place on the conveyance plan. A comparison of the title plans would have indicated that an “orphaned” parcel, shown neither on the first plan nor on the second, lay between the two titles. For many years, the discrepancy was unnoticed and of no consequence, but a dispute arose concerning the orphaned parcel of land between subsequent owners: the appellant, the registered proprietor of Chapel House, and the respondents, the registered proprietors of Windhover Barn (formerly Chapel House Barn). In 2015, the respondents obtained a transfer, purportedly of the orphaned parcel, from the original 1986 and 1991 vendors. The appellant objected to the application for first registration. She claimed that the orphaned parcel was illusory and had been included in the 1991 conveyance of the house to her former husband. The First-tier Tribunal (FTT) dismissed those objections and directed the chief land registrar to give effect to the respondents’ application on the basis of the 2015 transfer. The appellant appealed. The issues were: (i) whether the 1991 conveyance conveyed the disputed land to the appellant’s predecessor in title; (ii) whether the 1986 conveyance conveyed the disputed land to the respondents’ predecessors in title as purchasers of the barn; and (iii) whether the 2015 transfer conveyed the disputed land to the respondents. Held: The appeal was allowed. (1) The position of the legal boundary depended on the terms of the pre-registration conveyance or the transfer as a whole, including the plan. If the plan was insufficiently clear for the reasonable lay person to determine the position of the boundary, the court could refer to extrinsic evidence and in particular to the physical features on the ground at the time. That was the case whether or not the plan was for the purposes of identification only. The question for the court was what the reasonable lay person would think they were buying. Evidence of the parties’ subjective intentions, beliefs and assumptions were irrelevant: see HM Land Registry’s Practice Guide 40, Supplement 3. The fact that a plan was included for the purposes of identification only did not mean that it was irrelevant. It would not prevail over a clear verbal description, but in the absence of such a description the plan should be taken into account together with other admissible evidence and might be decisive. The clearer the plan, the more helpful it might be, but it had to be interpreted as part of the conveyance as a whole and with regard to any relevant and admissible background material: Alan Wibberley Building Ltd v Insley [1998] 2 EGLR 107 followed. (2) The necessary premise of the FTT’s decision was that, having conveyed their barn in 1986, and having decided to convey their house in 1991, the vendors nevertheless wished to retain for themselves a small strip of land in the middle of the open yard between the two. It was also to be inferred that the appellant, as purchaser, agreed that the transaction should have that effect. Such a desire seemed both improbable and technically difficult to achieve, given that the area of land in question was unmarked by physical boundaries. Landowners did not, in general, reserve narrow and inaccessible strips of land along the edge of property conveyed which abutted an established boundary with land in separate ownership, unless for some very good reason, such as the preservation of a ransom strip, designed to enable the seller to share in any subsequent development value which necessitated an access road or other services being constructed across the strip: Parmar v Upton [2015] EWCA Civ 795; [2015] EGLR 58 considered. Nothing in the description of the subject land, or in the plan, suggested an intention to retain any part of the property then occupied by the vendor. In particular, there was no statement that the sale was of part only nor any careful demarcation of the boundary across the yard, as would undoubtedly have been necessary to ensure that both parties were clear what they were buying and selling if it was to be less than the whole. Unlike the 1986 conveyance, the 1991 conveyance included no acknowledgement of the right of the purchaser to production of the conveyance by which the vendors had acquired the property. That omission demonstrated that the vendors did not intend to retain the title deeds, as they would have done had they been selling only part of their property. Without going outside the four corners of the document, it was possible to be quite sure that the subject of the 1991 conveyance was the whole of the property belonging to the vendors. (3) As a general proposition, it was unlikely that a vendor would wish to retain a small portion of land without express mention in the conveyance. Each document had to be read as a whole and interpreted according to its own terms. The FTT had reached the wrong conclusion about the 1991 conveyance. That document was effective to convey all of the property at Chapel House remaining in the ownership of the vendors at the time of its completion.  The general route of the boundary was apparent from the 1986 conveyance plan and the boundary was plainly not in the same location as the boundary shown on the 1991 conveyance plan. There was no orphaned parcel of land between the two boundaries and the 2015 transfer was without content. Accordingly, there was no need to consider the FTT’s conclusion on the adequacy of the 2015 transfer. The UT would uphold the appellant’s objection to registration of the land purportedly included in the 2015 transfer and direct the chief land registrar to reject the respondents’ application for registration. William Hanbury (instructed by SDM Legal of Lancaster) appeared for the appellant; Richard Oughton (instructed by Bendles Solicitors of Cumbria) appeared for the respondents. Eileen O’Grady, barrister Click here to read a case summary of Scott v Martin and another