Neighbours disputing location of boundary — Appellant’s husband informally agreeing boundary position with respondent — Whether such agreement amounting to disposition of land and therefore engaging section 2(1) of Law of Property (Miscellaneous Provisions) Act 1989 — Appeal dismissed
The appellant and the respondent were neighbours. In 2000, the appellant transferred part of her land to the respondent’s predecessor in title. At that point, the boundary between the two plots had not been pegged out, but was described in the transfer deeds and on an annexed plan. The respondent subsequently purchased the land, upon which he built a house and a garage, and he erected a fence to delineate the boundary between the two properties. The appellant maintained that the fence and part of the garage encroached upon her land.
At first instance, the judge found that the boundary could not be identified by reference to the title deeds, but held that, on the evidence, the appellant’s husband, acting as her agent, had agreed the boundary in the respondent’s favour.
The appellant appealed on the grounds that: (i) the judge had failed to consider whether the boundary could be determined from the paper title; (ii) the judge should have found that any agreement reached between the appellant’s husband and the respondent was invalid, in that it had not been in writing as required by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989; and (iii) the judge’s findings as to the location of the boundary had been inconsistent with his acceptance of the evidence.
Held: The appeal was dismissed.
1. The detail provided by the paper title was insufficient to fix the boundary with any degree of certainty. The conveyance had clearly been badly executed. Accordingly, the judge had been correct to follow Scarfe v Adams [1981] 1 All ER 843, and consider the matter on the extrinsic evidence.
2. The agreement between the parties as to the position of the boundary line had not purported to be a contract to convey land from one party to the other, but an informal agreement as to the location of the boundary. Therefore, it was not a contract to convey land and was not registrable under section 10(1) of the Land Charges Act 1925: see Neilson v Poole (1969) 20 P&CR 909. No reported authority existed on the issue of whether section 2(1) of the 1989 Act applied to an agreement as to the location of a boundary rather than to the conveyance of land for the purposes of establishing a boundary. However, parliament could not have intended that section 2 should apply to transfers of a trivial amount of land in order for neighbours to agree their boundary under such an informal agreement; given that the purpose of such a discussion was to promote harmony and neighbourliness between the parties, it would be of disproportionate expense to expect those parties to proceed under section 2.
3. The judge had found that there was little difference in the evidence given by the various parties. He had had the benefit of a site visit. His findings were open to him on the evidence and would not be disturbed.
Martin Hutchings (instructed by Taylor Willcocks) appeared for the appellant; Howard Smith (instructed by Vivash Hunt, of Worcester Park) appeared for the respondent.
Vivienne Lane, barrister
