Land registration – First registration – Conveyance – Appellant applying to be registered as proprietor of unregistered land – Conflict between clear words in conveyance and plan on which land more particularly delineated – First-tier Tribunal directing registrar to cancel application – Appellant appealing – Whether extrinsic evidence admissible to displace general rule that clear plan prevailing over words of conveyance – Appeal allowed
The appellant was the registered proprietor of Lunsford Farm in Pett, East Sussex and was the fourth generation to have farmed that land. In December 2018, the appellant applied to HM Land Registry to be registered as proprietor of unregistered land adjoining his property. The application land was part of a lane adjoining the farm.
The respondent was the proprietor of Westcott, a house to the north of the road; he objected to the application, with the result that the matter was referred to the First-tier Tribunal (FTT) pursuant to section 73(7) of the Land Registration Act 2002. The FTT directed the registrar to cancel the application for registration. The appellant appealed.
His primary case was that the application land was conveyed to his grandfather (T) in 1918 and that he was now entitled to all the land then conveyed. The appellant said that the 1918 conveyance included the application land, despite its not being shown as included on the plan attached to the conveyance on which the land was “more particularly delineated”, since it was included in a schedule to that conveyance. The FTT found against him and the appellant appealed.
After T’s death in 1958 Lunsford Farm passed under his will to his executors and trustees. The appellant’s father (A) was the last survivor of those executors and trustees who died in 2004. In September 2018, his executors transferred to the appellant “such right, title and interest as they might have” in the application land.
The respondent did not dispute the validity of that transfer; the only issue on appeal was whether by the 1918 conveyance T acquired the application land.
Held: The appeal was allowed.
(1) There was no authority for the notion that a schedule to a conveyance was a document incorporated by reference and that the main clauses automatically prevailed over it. Conveyances and leases commonly used schedules as a way of organising material; schedules were not documents incorporated by reference and they did not have any less importance than any other part of the document.
The respondent relied heavily upon the proposition that the use of the words “more particularly delineated” in the 1918 conveyance created a hierarchy of importance, and that where the highest element in the hierarchy, here the plan, was clear then there was no reason to resort to extrinsic evidence. Only if there was no “unified truth” in the conveyance and no hierarchy of precedence within it could one move outside the four corners of the conveyance and look at extrinsic evidence. That was inconsistent with authority. The conveyance was to be construed as a whole, and where, as here there was an internal inconsistency it was right to look at extrinsic evidence rather than to simply disregard the schedule and its measurements: Wood v Capita Insurance Services Ltd [2017] UKSC 24 considered.
(2) The plan attached to the 1918 conveyance was perfectly clear about the application land. This was not a case where the verbal description was in any way unclear. There was an inconsistency between clear words and a clear plan. Where a plan more particularly delineated the land it would normally take precedence over a verbal description, and over any physical features of the property, unless it was not clear enough to show where the boundary lay: Eastwood v Ashton [1915] AC 900 considered.
The proposition in Network Rail Infrastructure Ltd v Freemont Ltd [2013] EWHC 1733 (Ch), that a plan on which land was more particularly delineated would normally take precedence over a verbal description unless it was not clear enough to show where the boundary lay, went further than the House of Lords went in Eastwood v Ashton, insofar as it related to a situation where the wording of the conveyance was clear. But that was a legitimate extension of what the House of Lords said, provided the word “normally” was not forgotten.
Stripped to the bare essentials, the law was that where a plan more particularly delineated the land conveyed and either the wording was unclear or the wording was clear but inconsistent with the plan the plan would generally, or normally, prevail: Eastwood v Ashton and Network Rail Infrastructure Ltd v Freemont Ltd distinguished.
(3) The tribunal had to decide where there was anything to take the case outside general rule that the plan prevailed.
The tribunal could look at extrinsic evidence where the conveyance did not tell the full story. In looking for something that took this case out of the general rule, the tribunal was not limited to the four corners of the conveyance, because to accept that limitation would be to accept that the acreage in the schedule was to be disregarded, which was inconsistent with the proposition that the conveyance was to be construed as a whole.
In the present case the extrinsic evidence was overwhelmingly in favour of the schedule to the conveyance. If in doubt, the tribunal was to prefer the construction that made business common sense. In all the circumstances, the 1918 conveyance of Lunsford Farm, properly construed as a whole with the benefit of extrinsic evidence, conveyed the application land to T: Wesleyvale Ltd v Harding Homes (East Anglia) Ltd [2003] EWHC 2291 (Ch) considered.
(4) If that was wrong, and it was not possible to read the conveyance as a whole in that way, then a “corrective interpretation” was legitimate. It was clear from the extrinsic evidence that, insofar as the plan to the 1918 conveyance of Lunsford Farm cut out the application land, that was a mistake. Accordingly, the FTT was wrong to reject the possibility of a corrective interpretation and insofar as it was necessary the tribunal would interpret the 1918 conveyance by correcting the plan to include the application land.
Accordingly, the appeal succeeded, and the chief land registrar would be directed to give effect to the appellant’s application to be registered as proprietor to the application land as if the respondent’s objection had not been made.
Matthew Mills (instructed by Attwells Solicitors LLP) appeared for the appellant; Christopher Maynard (instructed by Whitehead Monckton) appeared for the respondent.
Eileen O’Grady, barrister
