Boundary dispute — Option to purchase plot identified on plan — Plan filed at Land Registry showing different boundary for plot — Land Registry plan attached to eventual transfer — Whether original plan showing correct boundary — Whether general boundary rule applying — Claim dismissed
The claimants had agreed to sell a plot of land to the first defendant, a company owned by the second and third defendants, for the development of five houses. Under the sale contract, the claimants took an option to purchase the house to be constructed on plot 1. The extent of plot 1 was shown on the attached plan 2.
The second and third defendants purchased the adjoining plot, plot 5, and registered their title. The original plan attached to that transfer, based upon the 1:1250 Ordnance Survey map, was subsequently lost. However, the Land Registry plan, attached to the registered title, differed from plan 2 in that a steep bank separating the two plots was shown as part of plot 5, rather than plot 1. When plot 1 was finally transferred to the claimants, the Land Registry plan was annexed to the transfer document.
The claimants subsequently brought proceedings asserting ownership of the bank and the fence. They relied upon plan 2 in the original contract, and upon the general boundaries rule that title plan boundaries were only indicative, and that revisions could be made to the filed plan at any time. An issue also arose as to the ownership of a strip of land between the eastern boundary of the land comprised in the claimants’ registered title and a roadway.
Held: The claim was allowed in part.
Since the transfer to the claimants was unclear, the court was entitled to have recourse to extrinsic evidence in order to define the parcel of land conveyed. On a true construction, the bank had not been conveyed to the claimants. The substitution of the Land Registry plan, in place of plan 2, in the transfer to the claimants had been deliberate, and the claimants, were not entitled to rely upon plan 2 delineating the land intended to be transferred.
That conclusion was unaffected by the general boundaries rule. The rule was confined to the effect of the filed Land Registry plan. It did not allow the registrar or the court to alter the effect of a transfer plan, which represented the contractual bargain between the parties: Lee v Barrey [1957] Ch 251 distinguished. Although the transfer to the second and third defendants had been lost, the transfer plan had been based upon the 1:1250 Ordnance Survey map, and that map was admissible as secondary evidence where the primary document had been lost. It could be inferred that the Land Registry had correctly plotted what was shown on the transfer plan: Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894 considered.
On the evidence, the strip of land next to the roadway had passed to the claimants following a boundary agreement between the parties, and the claimants’ claim would be allowed to that extent.
Kathryn Purkis (instructed by Bolitho Way, of Portsmouth) appeared for the claimants; Philip Glen (instructed by Paris, Smith & Randall, of Southampton) appeared for the defendants.
Sally Dobson, barrister
