Sale of land – Boundaries – Interpretation of transfer – Appellant holding charge over premises granted by purchaser of those premises – Respondents claiming to be true owners of premises and bringing claim for possession and damages – Whether premises included in 1909 transfer to respondents’ predecessor in title – Appeal dismissed
The appellant bank held a charge over premises in Trinidad and Tobago granted by a 2005 purchaser to whom the premises had been conveyed by a duly registered deed and who had subsequently constructed a building on it. In 2006, the respondents had written to the 2005 purchaser claiming that they were the registered owners of the premises since the vendor on the 2005 sale had lacked good title to that land. They subsequently brought a claim for possession of the premises and damages for trespass.
In those proceedings, the 2005 purchaser claimed that he was the owner of the premises under a title derived from a 2010 deed, by which the premises had been transferred to a predecessor in title. The respondents contended that the 1910 deed had been ineffective to transfer title to the premises since they did not belong to the vendor at that time, having earlier been conveyed away by a deed of 1909 from which the respondents’ own title was derived.
The central issue was whether the 1909 deed, on its proper construction, had conveyed away the premises. Finding in favour of the respondents, the judge held that the description of the southern boundary of the land conveyed by the 1909 deed was consistent with that property including the premises and irreconcilable with them having been excluded from that conveyance. She accepted that if the premises were included in the 1909 conveyance, then the property thereby conveyed exceeded six acres, whereas if the premises were excluded, the property conveyed would be almost exactly six acres. However, she did not consider that that fact vitiated the respondents’ case.
When the appellant became aware of the claim, it obtained the permission of the Court of Appeal in Trinidad and Tobago to intervene in the proceedings, which resulted in a further hearing before the same judge in which she reached the same conclusion.
The appellant’s appeal against that decision was dismissed on the grounds that, even if the 2005 purchaser had a good paper title to the premises, the respondents could nonetheless could make out a claim to the premises based on adverse possession. The appellant appealed to the Privy Council.
Held: The appeal was dismissed.
(1) It was inappropriate for the Court of Appeal to rely on the respondents’ alternative case based on adverse possession in circumstances where that case had not been advanced before the judge below and where the Court of Appeal itself, in its earlier decision on the appellant’s application to intervene, had itself limited the appellant to arguing the paper title point. However, the judge’s decision should nonetheless be upheld for the reasons she gave. It was impossible to fault her reasoning and conclusion that the premises were included in the property conveyed by the 1909 deed and that, accordingly, the respondents had established paper title to the premises as against the 2005 purchaser, and therefore as against the appellant.
The boundaries of the property conveyed by the 1909 deed appeared clear and, unless the southern boundary was misdescribed, led inexorably to the conclusion that the property conveyed included the premises. That conclusion was not displaced by the fact that the property conveyed was described as comprising six acres and that, if the premises were included, the property would have amounted to seven acres. A choice had to be made between departing from the description of the southern boundary in the 1909 deed and treating the description of six acres as being an underestimate by some 15%. At least in the absence of other relevant facts, the first of those two options was to be preferred. The boundaries identified the property conveyed with a genuine precision, whereas it was impossible to accept that the six acre description was intended to be precise. Further, the other three boundaries were correct, which tended to suggest that the fourth was correct also. It was relatively common for the land conveyed by a deed to be misdescribed in some way, and in particular for the area to be misstated. In such cases, the court had to make up its mind which of the conflicting descriptions should, in the circumstances, be considered the true description. Once it had done that, the false description could be disregarded: Morrell v Fisher (1849) 4 Exch 591, Cowen v Truefitt Ltd [1898] 2 Ch 551 and Eastwood v Ashton [1915] AC 900 applied.
(2) Although building on another’s land in the belief that it was one’s own land was a classic basis for a proprietary estoppel claim, such a claim could not be mounted unless the owner of the land in question was, or ought to have been, aware of the relevant facts. The respondents did not seem to have been aware of the initial stages of the building work carried out by the 2005 purchaser and, when they had discovered that it was going on, they had objected reasonably promptly. In those circumstances, it was unlikely that the 2005 purchaser had any claim to the premises by proprietary estoppel. The judge had correctly concluded that the 2005 purchaser had no defence to the respondents’ claim for possession of the premises, such that the appellant, whose rights depended on those of the 2005 purchaser, had no defence either.
Jonathan Crystal and Ian L Benjamin (instructed by Norton Rose Fulbright LLP) appeared for the appellant; Anand Beharrylal and Justin McClintock (instructed by Alvin Shiva Pariagsingh) appeared for the respondents.
Sally Dobson, barrister
Read the transcript here: Republic Bank Ltd v Lochan and another
