Establishing boundaries is very important because the boundary of a property determines the extent of land and the rights and liabilities of a property owner or occupier. The million dollar question is therefore, how do you determine the exact location of the boundary?
Title deeds and plans
The first port of call in any boundary dispute should be to inspect the title deeds and plans annexed thereto. There is not, however, any guarantee that these documents will provide a definitive answer. It is commonplace for the following issues to arise when reviewing the title deeds and plans:
• The parcels clause describing the land being transferred is not detailed enough to accurately describe the extent of the land;
• The parcels clause describes the land twice and these descriptions conflict with one another;
• The scale of the plan does not allow for boundaries to be accurately established;
• The boundary marked on the plan, typically in red, when scale is taken into account, provides for a 3m wide boundary on the ground and as a result there is no certainty as to where the exact boundary lies.
What is the next step if the deeds and plans do not clarify the position of the boundary?
As set out by Lord Hoffman in Alan Wibberley Building Ltd v Insley [1999] UKHL 15 where title deeds and plans are unclear, extrinsic evidence may be used to help determine the original intention of the parties.
Examples of such extraneous evidence include the following:
• Particulars of sale;
• Replies to pre-contract enquiries;
• Maps, including old tithe maps;
• Photographs;
• Witness statements;
• Physical evidence on site, such as topographical features.
This concept of accepting extrinsic evidence was furthered in Liaquat Ali v Robert Lane [2006] EWCA Civ 1532 in which the Court of Appeal considered that extrinsic evidence might include the subsequent conduct of parties.
Norman and another v Sparling [2014] EWCA Civ 1152
In the recent case, Norman and another v Sparling, the Court of Appeal applied the approach taken in Liaquat in using the conduct of parties after the sale of land in order to determine the common intention as to the position of the boundary.
Facts
In 1988 Mr & Mrs Birch gifted a small parcel of land within their farm to Mr Birch’s mother. Mr Birch’s mother built a house on this land called Arnwood and subsequently sold Arnwood to Mr & Mrs Norman.
Mr & Mrs Birch then subsequently sold their farm to Mr Sparling.
A dispute then ensued between Mr & Mrs Norman and Mr Sparling as to the boundary between Arnwood and the farm. A bank had been built between Arnwood and the farm, and whilst Mr & Mrs Norman argued that the boundary was at the top of the bank, Mr Sparling argued that the boundary was at the bottom of the bank.
Unfortunately the deed of gift did not adequately describe the land, and the plan, marked “for identification purposes only”, was on such a small scale that it was not possible to define the position of the boundary. In this case even an expert surveyor was unable to establish the position of the boundary.
Decision at First Instance
At first instance the Court recognised the need to rely upon extrinsic evidence to determine the intention of the original parties, Mr & Mrs Birch and Mr Birch’s mother, and determined that as the bank was very steep the boundary should be at the top of the bank.
Court of Appeal
Mr Sparling appealed on the ground that the bank was not in existence at the point at which Arnwood was gifted to Mr Birch’s mother therefore should not be taken into account.
The Court of Appeal, applying Liaquat, considered the subsequent conduct of Mr Birch, Mr Sparling’s predecessor in title. The evidence was that Mr Birch:
• Sought to mark the boundary of the land (by the building of the bank) without any objection from his mother;
• Had, without objection, allowed Mr & Mrs Norman to plant bushes on the Arnwood side of the bank; and
• At the time of the conveyance of Arnwood from Mr Birch’s mother to Mr Norman, Mr Birch put posts along the top of the bank to indicate the boundary line.
As a result, the Court of Appeal determined that, due to the subsequent conduct of the parties, it must have been their intention that the top of the bank was the relevant boundary.
If you are involved in a dispute and would like advice on this or a related topic, please contact Edward Fowler either call 01392 210700 or email drx@stephens-scown.co.uk. Edward specialises in property and land related disputes acting for both individuals and companies.