Boundary – Agreement – Boundary between parties’ adjoining properties defined by 1963 transfer – Respondents claiming to have acquired additional land by informal agreement or adverse possession – Whether boundary agreement existing of kind exempted from statutory formality requirements – Whether sufficient exclusion of owners of disputed land to found adverse possession claim – Appeal allowed
The appellant and the respondents owned adjoining properties in London, E5. The boundary between the two properties, respectively numbered 99 and 105, was defined by a plan attached to a 1963 transfer by which number 105 had been transferred out of common ownership. The plan showed that a yard had been divided so as to transfer the rear part with number 105 while retaining the front part for number 99, but with a right of way for the benefit of number 105.
Between 2007 and 2008, the appellant carried out development at number 99 by demolishing a warehouse and replacing it with a mixture of offices and apartments, which largely occupied the same footprint as the former warehouse. The respondents brought proceedings against the appellant for trespass and interference with their right of way, contending that the development trespassed on their part of the yard and constituted an actionable interference with their right of way over the appellant’s part. Their claim was based on an assertion that that their predecessors in title had acquired an additional strip of the yard, approximately 3m wide by 4m long, by means of an informal boundary agreement reached sometime between 1963 and 1989 so as to vary the boundary shown in the 1963 transfer or, alternatively, by adverse possession. In relation to adverse possession, the respondent relied on acts of possession consisting of parking on the disputed land, the assumption of responsibility for its maintenance and the painting of a black line along the claimed boundary.
Following a trial on liability, the judge found for the claimants both in relation to the alleged boundary agreement and adverse possession. With regard to the boundary agreement, she found that the previous owners of number 99 appeared to have given the disputed area of the yard to previous owners of number 105. She gave directions for a further hearing to determine the appropriate remedies.
Held: The appeal was allowed.
(1) Although a contract for the sale or other disposition of land was required to comply with the statutory formalities of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, an exception to those requirements might apply where the agreement in question was a boundary demarcation agreement that involved the conscious transfer of a trivial piece of land. For that purpose, there was a distinction between, on the one hand, an agreement made with the purpose of moving a boundary so as to transfer land from one neighbour to another and, on the other, an agreement the purpose of which was to define a previously unclear or uncertain boundary, even if that agreement involved some conscious transfer of a trivial amount of land. The former agreement was subject to the statutory formalities whereas the latter was not: Neilson v Poole (1969) 20 P&CR 909; (1969) 210 EG 113 and Joyce v Rigolli [2004] EWCA Civ 79; [2004] PLSCS 35 applied.
The informal agreement that the judge had found to exist fell into the first of those two categories and, accordingly, was invalid for failure to comply with the statutory formalities. There was no uncertainty as to the boundary created by the 1963 transfer, which clearly showed that boundary on the attached plan. The agreement pleaded by the respondent was designed to vary, rather than demarcate, the existing boundary. The agreement was not made for demarcation purposes and the land transferred was not, in context, trivial. While a plot measuring 3m by 4m might be trivial in the context of a field or a garden, it was of real significance where it enabled the recipients, by adding it to their existing land, to obtain a car parking place in a busy urban setting. Moreover, it was difficult to see what consideration the then owner of number 105 had provided in return for the agreement to transfer the disputed land. In a true boundary demarcation agreement, the consideration was provided, each way, by the substitution of certainty for uncertainty as to the boundary, and the relief of both neighbours from the risk of future dispute. Where there was no evidence of any consideration being given for the transfer of the disputed land, the agreement would be ineffective for that reason alone.
The respondents could not benefit from any presumption in favour of a boundary demarcation agreement. One presumption favoured the existence of a pure boundary agreement, for identification or delineation where no land was consciously transferred, over a boundary agreement where, by straightening a line of division, each side gave some land to the other. However, the transfer of the disputed land from no 99 to no 105 fell into neither of those categories such that the presumption had no application. There was also a rebuttable presumption that, where the purpose of an agreement was to delineate a boundary rather than to transfer land, any consequential transfer of land was to be presumed to be trivial unless the contrary was shown. Again, that presumption did not apply in the instant case, where the purpose of the agreement was not to define an uncertain boundary but rather to transfer the disputed land; in any event, the disputed land was not trivial such that the presumption, had it applied, would have been rebutted. It followed that the respondents had not acquired the disputed land by reason of any informal agreement.
(2) Nor could the respondent’s claim based on adverse possession be sustained. The three elements of conduct relied on did not, either individually or in aggregate, point to the exclusion of the owners of number 99 from the disputed land. Parking on the disputed land had not occupied the whole of it or excluded the owners of number 99 from using it as a means of access to their warehouse. Any assumption of responsibility for maintenance had been very limited and amounted to little more than keeping the disputed land clean and tidy. Finally, the painting of the black line had been carried out, not by the owners of number 105, but by the owner of number 99 to mark out the furthest limit of permitted parking by the owners of number 105. Far from being an act of possession or exclusion sufficient for adverse possession, it was something done for a quite different purpose by the paper title owner, and did not in any way exclude his continuing access to the disputed land. The judge had erred in finding that the owners of number 105 had acquired title to the disputed land by adverse possession. The result of that conclusion, coupled with the inapplicability of the doctrine relating to boundary agreements, was that the disputed land continued to form part of number 99.
(3) As a result of other errors made by the judge, there would be a retrial of certain issues relating to allegations of trespass on the part of the yard owned by the respondents and interference with their right of way over the appellant’s part.
Tom Weekes (instructed by DWFM Beckman) appeared for the appellant; Nicholas Isaac and Harriet Holmes (instructed by Ronald Fletcher Baker LLP) appeared for the respondents.
Sally Dobson, barrister
