England and Wales Land Registry Adjudicator

 

REF/2011/0522

 

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN

 

Fiona Semple

 

APPLICANT

 

and

 

Michael John Anthony and Katherine Jane Anthony

 

RESPONDENTS

 

 

Property Address: 126a Tebbutts Mews, Moorland Road, Weston-super-Mare and garage BS23 4HX

Title Number: ST253910

 

 

Before: Mr Edward Cousins sitting as The Adjudicator to HM Land Registry

 

 

Sitting at: Bristol County Court

On: Wednesday 2 ^nd November 2011

 

 

Applicant Representation: Mr M Selway, of Counsel, instructed by Messrs Powells, Solicitors

Respondent Representation: Mr Toby Huggins, of Counsel, instructed by Messrs Bartlett, Gooding and Weelen, Solicitors

 

 

DECISION

 

KEYWORDS: Determined Boundary – whether title plans determinative of the boundary between car-parking spaces – whether extrinsic evidence admissible as an aid to the construction of the transfers – whether the intention of the parties to the original transfer is admissible evidence.

 

Cases referred to: Toplis v. Green [1992] EGCS 20; Scarfe v. Adam [1981] 1 All ER 843; Pennock v. Hodgson [2010] EWCA Civ 873; Alan Wibberley Building Limited v. Insley [1999] 1 WLR 894; Chartbrook Limited v. Persimmon Homes Limited [2009] 1 AC 1101; Clarke v. O’Keefe (2000) P & CR 126; Willson v. Greene [1971] 1 WLR 635; Webb v. Nightingale, unreported 8 ^th March 1957; Wigginton and Milner Limited v. Winster Engineering Limited [1978] 1 WLR 1462; Ali v. Lane [2006] EWCA Civ 532

 

 

THE APPLICATION

1.                   Ms Fiona Semple (“the Applicant”) is the sole registered proprietor of 126A Tebbutts Mews, Moorland Road, Weston-super-Mare (“No. 126A”) which was first registered at HM Land Registry on 18 ^th January 2007 under title number ST252675.

 

2.                   Mr Michael John Anthony and Mrs Katherine Jane Anthony (“the Respondents”) are the registered proprietors of 126B Tebbutts Mews (“No. 126B”), aforesaid, which was first registered on 2 ^nd March 2007 under title number ST253910.

 

3.                   By an application in form DB dated 1 ^st April 2010 (“the Application”) the Applicant applied for the line of the boundary between No. 126A and No. 126B to be determined pursuant to the provisions of section 60 of the Land Registration Act 2002 (“the 2002 Act”). In support of the Application the Applicant produced a plan drafted by Stephen & Co, Chartered Surveyors (“the Stephen Plan”), indicating the position of the boundary line to be determined between points A and B. The Respondents object to the Application. I should state that no application has been made by the Applicant for rectification of the register in accordance with Schedule 4 of the 2002 Act, and I am therefore only concerned with the question of the determined boundary.

 

THE BACKGROUND

4.                   No. 126A and No. 126B form part of a terrace of four houses constructed in 2006 on a former industrial site behind Moorland Road. Included in the respective titles and serving each property are four parking areas marked out on an apron of pavers lying to the west of the terrace of houses. The parking areas are apparently identified by lines of differently coloured pavers set into main area of the apron. It will be noted from the Stephen Plan that the two parking areas annexed to No. 126A and No. 126B are adjacent to each other on the northern side of the apron. The parking area serving No. 126A is adjacent to that house, whereas the parking area serving No. 126B lies immediately to the west of the No 126A parking area. I shall refer to these two parking areas as “Parking Area 126A”, and “Parking Area 126B”.

 

5.                   The Applicant contends that the two parking areas should be of equal widths and that the differently coloured pavers marking out the boundary line between the two parking areas in unequal widths on a north/south trajectory had been incorrectly set into the apron by the builder on its original construction. Further it is asserted this did not accord with the original intention of the parties which was that these areas should be of equal widths. Indeed on 20 ^th April 2009 the Applicant removed the line of differently coloured pavers from their original position and had them replaced in a line about a metre or so to the west. This was done in accordance with what she considers is the true boundary line between the two parking areas.

 

6.                   For their part the Respondents contend that the true position of the boundary between the two parking areas should slightly further to the east by a metre or so. This is said to be in accordance with the following:

 

(1)                         the plans to the transfers of No 126A and No 126B which, it is asserted, show the boundary between the two parking spaces aligned on the same trajectory as the boundary line between the adjoining houses situated in Moorland Road immediately to the north of the apron, namely No. 126 and No. 128 Moorland Road. These plans were reproduced in the title plans to the two registered titles.

 

(2)                         the original differently coloured pavers originally inserted into the apron before their removal by the Applicant which, it is contended, marked out the true boundary line between Parking Area 126A, and Parking Area 126B.

 

These assertions are rejected by the Applicant.

 

7.                   The Applicant completed the purchase of No. 126A on 12 ^th October 2006 and was subsequently registered as proprietor thereof on 18 ^th January 2007. In the case of the Respondents they completed the purchase of No. 126B some four months later on 12 ^th February 2007, and were subsequently registered as proprietors on 2 ^nd March 2007 some six weeks subsequent to the registration of the Applicant as proprietor of No. 126A.

 

8.                   The title plan of No. 126A is scaled at 1:250 and the land transferred is shown edged red. Parking Area 126A is tinted purple on this plan. This plan appears to indicate that Parking Area 126A at its western boundary lies along a line which seems to be an extension of the boundary line between No. 126 and No. 128 Moorland Road at its northern end. This would appear to be at variance with the boundary line between the two parking spaces as contended for by the Applicant as lying between points A and B on the Stephen Plan. Be that as it may, the title plan to No. 126B which is at scale 1:500 (enlarged from scale 1:1250) shows the land transferred edged in red and Parking Area 126A tinted in purple. This also appears to indicate that the boundary between the parking spaces of No. 126A and No. 126B is an extension of the same boundary line between No. 126 and No. 128 Moorland Road, to which reference has been made above.

 

THE ISSUES

9.                   The essential issues to be determined in this case are as follows:

 

(1)                         Whether the plans attached to the respective transfers of No. 126A and No. 126B are in themselves determinative of the boundary line between Parking Area 126A and Parking Area 126B;

(2)                         If having regard to that exercise the position of the boundary line between the two parking spaces cannot be so determined, then what extrinsic evidence, if any, is admissible to assist the Adjudicator in determining the boundary between the two parking spaces

(3)                         Ultimately the position of the exact line of the boundary.

 

THE APPLICANT’S CASE

10.               The Applicant gave evidence herself, and on her behalf three witnesses were called. These were Mrs Janet Sharp, a friend of the Applicant who accompanied her on the first visit she made to the site on 19 ^th August 2006; Mrs Marian Tucker, who owns and lives at No 126D; and Mr Rodney Keith Tebbutt who was the developer of the terrace of houses from whom the Applicant purchased No 126A. Mr Timothy Venn who lives at No 126C provided a witness statement but did not attend to give evidence.

Summary of the Applicant’s evidence

The Applicant

11.               On 19 ^th August 2006 there was a meeting between the Applicant and Mr Tebbutt at No. 126A which was in the presence of Mrs Sharp. The Applicant stated that she noted during the course of this meeting that there was a parking area to the front of the houses which had been paved, and she asked about the parking allocation for No. 126A. The parking arrangements were discussed between her and Mr Tebbutt and she stated that he assured her that the parking area adjacent to the front of No. 126A was divided equally between that property and No 126B. The area apparently had been carefully measured by him and that by dividing the area equally it meant that two cars could be parked on each of the areas allocated for the two houses. The Applicant did state that during this viewing she noticed that there were different coloured pavers laid at a point between the two areas allocated for parking which one would assume indicated the dividing line between the respective parking areas. However, she noted that the position of the coloured pavers indicated that Parking Area 126B was in fact larger than Parking Area 126A and she queried the position with Mr Tebbutt. He stated that the pavers had been laid in the wrong position by the contractors. Mr Tebbutt referred to a plan (“the Tebbutt Plan”) on which he had marked the delineation of the parking areas which apparently were to be of equal widths. The applicant did not in fact see the Tebbutt Plan until a year or so later and well after her purchase of No 126A.

12.               On this basis at a later stage following a dispute as to the parking of cars with tenants of No 126B, and having regard to this conversation with Mr Tebbutt, the Applicant on 20 ^th April 2009 took up these coloured pavers and moved them to the position which she maintains is the correct position of the boundary line. The Applicant also further established what she considers to be its true position between Parking Area 126A and Parking Area 126B by erecting a chain supported by one post at the southern end of the line and fixed to the northern boundary wall at the other end. This currently divides the two parking areas.

Mrs Janet Sharp

13.               Mrs Sharp recalls the conversation between the Applicant and Mr Tebbutt which took place on 19 ^th August 2006, and she clearly remembers that he explained that the parking area immediately to the front of No. 126A was to be divided equally between that property and No. 126B. She recalls him explaining that the line of coloured pavers that had been laid to differentiate the areas had in fact been laid in the wrong position. She also recalled Mr Tebbutt explaining to the Applicant that he himself had prepared a plan (the Tebbutt Plan) showing the parking areas as divided equally and that he had passed this plan to his solicitor (Mr Rugg) who was acting for him in connection with the sale of the properties.

Mrs Marion Tucker

14.               Mrs Tucker purchased No. 126D on 27 ^th October 2006. She said that she also viewed the property at No. 126A, and that during the viewing of the property she purchased it was explained to her that the parking arrangements for No. 126A and the adjoining property at No. 126B were that the parking area to the front of these properties was to be shared equally.

Mr Rodney Keith Tebbutt

15.               For his part Mr Tebbutt in his evidence explains how he came to develop the site into the terrace of four houses and the parking areas for the benefit of those properties. He said when constructing the terrace he was concerned to ensure that each of the properties would have the ability to park two motor cars on each of the parking areas at the front and that he carefully marked out these areas and also prepared a hand written plan (the Tebbutt Plan). He said that he calculated that the parking areas serving No. 126A and No. 126B could be divided equally so that each would have a parking space of 4.72 metres in width as measured against the northern boundary of the site. Mr Tebbutt went on to say that he probably prepared the plan in early summer of 2006 and that he passed it to his solicitor, Mr Rugg and explained to him that each property should have equal parking facilities in accordance with this plan. He went on to state that it was not until later after the properties were sold that he was alerted by the Applicant to the fact that it appears that the plan was not in fact used by Mr Rugg. However, this statement which is contained in his witness statement (at paragraph 6) appears to be at variance with a later statement where he stated he met the Applicant at the site prior to the sale of No. 126A and he could recall that the Applicant asked him about the parking arrangements and confirmed that they were in accordance with the plan that he had prepared, but which he could not give her as he had already passed it to Mr Rugg.

16.               Mr Tebbutt said that he also recalled the Applicant asking him about the coloured pavers that could be seen on the ground which appeared to mark the dividing line between Parking Area 126 and Parking Area 128 and that she noted that Parking Area 126B appeared to be larger than that of Parking Area 126A. He said that he explained to the Applicant that they had been laid in an incorrect position and that the properties to be sold had parking areas of equal widths. Mr Tebbutt stated during the course of cross-examination that he agreed that the line of different coloured pavers had been placed in an incorrect position but did not ask his solicitor to alter the contract plan, and that the builder had placed these pavers on “his own bat”, and not on Mr Tebbutt’s instructions. He expected his solicitor to do the job properly.

17.               It is also to be noted that the transfer plan indicating that the line between Parking Area 126A and Parking Area 126B is a continuation of the boundary line between No. 126 and No. 128 Moorland Road has been signed by both Mr and Mrs Tebbutt.

Mr Timothy Venn

18.               As I have stated above, Mr Venn did not appear to give evidence. In his witness statement he stated that purchased No. 126C on 1 ^st December 2006, and before he purchased this property he visited the terrace and spoke to the agents. It was explained to him that the parking areas serving the four properties were all to be divided equally between each property.

The Applicant’s Submissions

19.               The Applicant’s case on the above issues is essentially as follows:

(1)                 The respective transfer plans do not determine the boundary as they are of insufficient scale, precision and quality, and are insufficiently and inaccurately marked;

(2)                 The respective title plans show a general boundary only and do not determine the exact line of the boundary (2002 Act, section 60);

(3)                 In any event, the said title plans cannot be relied on insofar as they wrongly show that

(a)                     the boundary is in line with a wall running northward between two other properties,

(b)                     the parties’ respective car parking spaces are of unequal width, and

(c)                     there is an indentation to the western side of the Respondents’ car parking space;

(4)                 No 126A was transferred to the Applicant and registered in her name before the transfer of No 126B. It is the earlier transaction that is more important in determining the boundary. It was that transaction which governed what was transferred to the Applicant, and a fortiori could not have been transferred to the Respondents;

(5)                 It was Mr Tebbutt’s objective intention that No 126A and No 126B should each have a car parking space for two cars, it being his intention that those spaces should be of equal width as shown on the Tebbutt Plan

(6)                 Prior to the Applicant’s purchase of No 126A, Mr Tebbutt and his agents told the Applicant that No 126A would include a parking space of equal width to that to be sold with No 126B as shown on the Tebbutt Plan, and she agreed to purchase 126A on that basis;

(7)                 The position on the ground favours the Applicant’s case, as the other two properties in the development (No 126C and No 126D) also include car parking spaces of equal width;

(8)                 The pavers originally laid in respect of Parking Area 126A and Parking Area 126B were incorrect and had been explicitly said not to mark out the line of the boundary;

(9)                 As a result of the above, a reasonable layperson in the Applicant’s position would have thought he/she was buying a car parking space with the boundary in the position claimed by the Applicant, and that this should be determinative of the position of the boundary;

(10)             Ultimately, therefore, the exact line of the boundary is in the position claimed by the Applicant, and not that alleged by the Respondents.

 

THE RESPONDENTS’ CASE

20.               It is the Respondent’s case that the transfer plans to each of No 126A and No 126B Tebbutts Mews clearly show the boundary line between Parking Area 126A and Parking Area 126B as forming as continuation of the line of the boundary between numbers 126 and 128 Moorland Road. The original line of the differently coloured pavers before they were removed by the Applicant was an extension of that boundary line. The Respondents rely upon a copy of the transfer plan for No126A, upon which are marked two points “X” and “Y” to demonstrate this continuum.

21.               In short the Respondents assert that the title plans clearly define the boundary. If in the event that they are found not to be clear (which is denied) the Applicant is not entitled to rely upon extrinsic evidence as such evidence upon which she would seek to rely is inadmissible in accordance with the leading authorities.

Summary of the Respondents’ evidence

22.               The only evidence given on behalf of the Respondents was that given by the First Respondent who effectively based this on the statement of case provided by both Respondents. The essence of this evidence is that it is absolutely clear from the plans attached to the respective transfers to No. 126A and No. 126B that the boundary between Parking Area 126A and Parking Area 126B lay as a continuation of the boundary line between No. 126A and No. 126B Moorland Road. The First Respondent stated that this was confirmed on his original inspection of the two parking areas which were of unequal width and denoted by a line of different coloured pavers running as a continuation of the boundary line between No. 126 and No. 128 Moorland Road in a southerly direction. The First Respondent also stated that he was not aware that Mr Tebbutt intended that the respective properties should have the benefit of similar sized car parking spaces, and he was never informed of this at the time of his purchase.

23.               The First Respondent therefore contends that it was clear that the way in which the boundary line was laid out with the different coloured pavers was in accordance with everybody’s intention at the time and that the Applicant on her inspection of the property would have seen where the boundary line was laid out, yet did not raise this as an issue until many months later in July 2007.

24.               He further asserted that the title plans are accurate and that they correctly show the designated parking spaces, and that the boundary line between Parking Area 126A and Parking Area 126B is correctly delineated on the title plans.

25.               In short, the Respondents agree that the true boundary line should be established, but that it is along the line indicated on the transfer and title plans, and in the position of the originally laid coloured pavers before they were taken up and moved by the Applicant.

THE LEGAL POSITION

The clarity of the plans and extrinsic evidence

26.               In Wigginton and Milner Limited v. Winster Engineering Limited [1978] 1 WLR 1462 it was stated that where a court is required to decide what property passed under a conveyance it will have regard to the conveyance as a whole, including any plan which forms part of it, and the plan may be looked at to assist in the understanding of the description of the parcels.

27.               In the case of Scarfe v. Adam [1981] 1 All ER 843 it was held that it is a well-established principle that if the terms of a transfer of land or of an interest therein clearly defined the land or interest transferred extrinsic evidence is not admissible to contradict the transfer. In such a case if the transfer did not truly express the bargain between the vendor and the purchaser the only remedy was by way of rectification of the transfer. However, if the terms of the transfer did not clearly define the land or interest transferred extrinsic evidence, including any auction particulars forming the basis of the contract of sale, was admissible so that the court might do the best it could to arrive at the true meaning of the parties on a fair consideration of the language used. In that case in the event the court permitted the admission in evidence of auction particulars.

“… the starting point is that extrinsic evidence is not admissible as an aid to its construction [of the transfer deed] unless the relevant provisions of the deed are uncertain, contradictory or ambiguous.” (per Cumming-Bruce at page 847).

28.               In the case of Toplis v. Green [1992] EGCS 20 it was held by the Court of Appeal that:

(1)                 In construing a plan attached to the transfer an objective approach has to be assumed, namely that the plan was addressed to a lay person and was to be construed by the ordinary reasonable observer. The construction of any contract must be objective, the circumstances viewed as known to the parties at the time and the question was to be approached on the footing of the locus in quo.

(2)                 Further, it is not realistic to look at a plan in isolation. The judge has to construe it in its context, in the light of the replies to enquiries at the time and by examining all the surrounding circumstances and documentation. The answer then has to be given to the question posed “what would the reasonable layman think he was buying?”

In the context of that case it was held that the plan was not accurate.

29.               In the case of Clarke v. O’Keefe (2000) P & CR 126 the Court of Appeal upheld the decision of the circuit judge who found that the small scale plan was insufficiently precise and admitted extrinsic evidence which was evidence upon which the judge had properly admitted. The Court of Appeal relied upon the case of Scarfe v. Adams to the effect that if the terms of a transfer of land clearly defined the land transferred, extrinsic evidence was not admissible to contradict the transfer.

30.               In the case of Pennock v. Hodgson [2010] EWCA Civ 873 the Court of Appeal made reference to the leading case of Alan Wibberley Building Limited v. Insley [1999] 1 WLR 894 as being regarded as the leading modern authority on the construction of the parcels clause in a conveyance. In paragraph 9 of the Pennock case four propositions are set out as to the construction process.

31.               This case is authority for the proposition (paragraph 13) that if a conveyance or plan is insufficiently clear as to the precise boundary, physical features of the land existing at the date of the conveyance can be used as an aid to construction, but the parties’ subjective beliefs or intentions were inadmissible as extrinsic evidence in the construction of the relevant conveyance.

“Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach…”

“The effect of the conveyance is not determined by evidence of what the parties to it believed it means, but what, against the relevant objective factual background, they would reasonably have understood it to mean.”

(Paragraphs 12 and 13.)

32.               In the case of Chartbrook Limited v. Persimmon Homes Limited [2009] 1 AC 1101 dealing with the question of rectification it was held that pre-contractual negotiations and communications between the parties to a contract should be excluded as inadmissible simply because they were usually irrelevant to the question which the court had to decide, namely, what the parties could reasonably be taken to have meant by the language which they had finally adopted to express their agreement. If the agreement subsequently incorporated into writing by the parties was in some way defective then the appropriate remedy would be rectification of the contract.

33.               In the case of Willson v. Greene [1971] 1 WLR 635 it was held that in that case the court could take into account objective surrounding circumstances indicating where the boundary line had been agreed and marked out by the parties. Thus extrinsic evidence of where the land was identified by pegs was admissible and the extrinsic evidence was admitted. (See also Webb v. Nightingale, unreported 8 ^th March 1957 – where again a boundary had been marked out and extrinsic evidence was admitted in that case.)

34.               Thus extrinsic evidence is only admissible to aid construction in very limited circumstances. It is also important to stress that it is necessary to look at the objective circumstances, not the subjective intentions of the parties themselves.

35.               Finally, it has been held that if the conveyance is unclear or ambiguous, evidence of the subsequent conduct of the parties to the original conveyance is admissible subject to it being of probative value in determining what the parties intended (see Ali v. Lane [2006] EWCA Civ 532).

THE DECISION

36.               Having regard to the evidence of the parties and the legal principles set out above, I have come to the conclusion that the Application must fail. My reasons are as follows:-

(1)                 When construing a plan, an objective approach must be taken. In such circumstances if the location of boundaries is clear from the transfer, then no extrinsic evidence nor any presumptions can be used to contradict it. Different considerations would apply in the case of an application for rectification of the register, but I am not concerned with that aspect in this decision.

(2)                 The respective TR1s for each property indicate that No 126A and No 126B are defined by the transfer plans. I appreciate that the plans are a relatively small scale, but both plans indicate that the boundary line between the parking areas is a continuation of the boundary line between No. 126 and No. 128 Moorland Road. Thus in my judgment the transfer plans demonstrate that the boundary between the parking spaces continues in a southerly direction along the line of the boundary between 126 and 128 Moorland Road.

(3)                 Thus I find that the transfer plans to No. 126A and No. 126B are sufficiently clear to identify the extent of Parking Area 126 and Parking Area 128. This cannot be gainsaid.

(4)                 The fact that the parking areas were of unequal widths was noted by the Applicant and Mr Tebbutt at a time prior to her purchase of No 126A, and that this did not accord with Mr Tebbutt’s apparent intention as relayed to the Applicant, is in my judgment irrelevant to the issue as to what a reasonable layman would think he/she was buying. These were subjective intentions which did not accord with what was on the ground at the time and noted by the Applicant and Mr Tebbutt at that stage, and subsequently by the Respondents when they visited the site some months later. The applicant did not engage in self-help by moving the coloured pavers and erecting the chain until April 2009.

(5)                 Further, the Applicant did not have sight of the Tebbutt Plan until November 2007, over one year after she purchased 126A. It cannot therefore be said that she relied upon any measurements in Mr Tebbutt’s plan when purchasing No 126A, or that any measurements in Mr Tebbutt’s plan could have been incorporated as a term of the contract of purchase.

(6)                 It is also to be noted that not only did Mr Rugg apparently not act upon the instructions given to him by Mr Tebbutt as to where the boundary line should be placed in accordance with the Tebbutt Plan, but also Mr Tebbutt signed the transfer plan which showed the boundary as being a continuation of the boundary line between No 126 and No 128 Moorland Road.

(7)                 Finally, as I have found that the location of the boundaries between Parking Area 126A and Parking Area 126B is clear from the transfers and the plans are not uncertain, contradictory, or ambiguous, then no extrinsic evidence is admissible as an aid to construction, such evidence being in any event subjective in nature.

(8)                 Further, I find that that the true boundary between Parking Area 126A and Parking Area 126B lies on the line X to Y as shown on the copy transfer plan as referred to in paragraph 20, above.

37.               In such circumstances I shall direct the Chief Land Registrar to cancel the original application.

38.               As is usual in this jurisdiction, costs follow the event. I therefore order that the Applicant do pay to the Respondents the costs of and occasioned by the Application. The Respondents should serve on the Applicant and lodge with this Office a statement of their costs within 28 days.

 

 

Dated this 13 ^th day of January 2012

 

 

 

By Order of The Adjudicator to HM Land Registry