Claimants owning a flying freehold — Claimants transferring land to first defendant by way of contract, transfer document and plan — Flying freehold omitted from plan — Whether flying freehold forming part of title — Whether flying freehold passing to first defendant under “catch-all” description within transfer document — Claim dismissed
The claimants owned a flying freehold of the upper floor of a barn that was situated on their land. In 1990, the second defendant acquired the ground floor of the building by adverse possession. Later that year, the claimants sold their land to the first defendant. The sale involved a series of transactions involving various third parties but, in effect, it took place by way of a contract for sale and a subsequent transfer, neither of which referred to the flying freehold. Both documents were accompanied by a plan that delineated in red the area for sale but which failed to include the barn area of which the claimants owned the flying freehold. The claimants were aware of these omissions and were also conscious that the first defendant believed that the flying freehold had been included in the sale.
A dispute arose as to whether the transfer had conveyed the flying freehold to the first defendant. The claimants argued that, because of outstanding transactions to third parties, various parcels of land had not, at that stage, been removed from the title, and the description of the land in the transfer could not therefore be wholly accurate. Thus, the plan took precedence over the verbal description in the transfer. Express words would be required if the transfer were to carry land that projected over the boundary as shown on the plan, and since those express words had not been included, the intention had been for the flying freehold to be excluded from the sale.
The first defendant maintained that neither the wording in the contract nor the context in which the contract had been made indicated that the plan was to take precedence. In particular, it argued that both parties were aware that outstanding transactions involving the land had still to be completed, and that the plan was therefore “for identification purposes only”. On that basis, the land conveyed to it was the land described in the wording of the transfer: “the land comprising the title above mentioned”. It also relied upon the general rule that plans attached to conveyances are normally intended to show boundaries at ground level only: see Emmet & Farrand on Title Vol 2 para 17.013. Moreover, since the claimants would lose all rights of access to the building upon completion, it was highly unlikely, if they had intended to retain ownership of the flying freehold, that they would fail to make express reference or to reserve any rights of access to it in the transfer.
Held: The claim was dismissed.
The transfer conveyed the flying freehold to the first defendant. The transfer and contract documents fell to be interpreted in the light of the principles laid down in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896. Thus, they were to be interpreted against the background knowledge reasonably available to the parties at the time and could include “absolutely anything” that would have affected the way in which the language of the document might have been understood.
There was no indication either in the body of the transfer or on the plan that the latter had been intended to show anything other than the position at ground level, and, at ground level, the plan was entirely accurate. In general terms, it was clear that the flying freehold would have been included in the transfer because it formed part of the land registered under the title. If the intention had been to include the flying freehold in the land to be transferred, the wording in the transfer and the plan did not conflict. The likelihood was that the parties had intended to include it. It was implausible to suggest that the claimants had meant to retain a small, landlocked flying freehold, which had no independent means of access and no intrinsic value, without expressly referring to it in the contract or transfer, or without reserving any right of way to it.
Jonathan Manning (instructed by Andrew Keen & Co) appeared for the claimants; Elizabeth Weaver (instructed by Ashurst Morris Crisp) appeared for the defendants.
Vivienne Lane, barrister