Effect of contract and transfer — Plan — Inaccurate plan attached to transfer — Dispute over strip of land adjacent to property sold — Vendor successfully bringing claim in trespass and damages — Purchaser contending that judge wrongly allowed evidence extrinsic to plan — Whether plan to be viewed in isolation from contractual negotiations — Whether plan to be construed in terms of “reasonable lay person” — Whether vendor under duty to purchasers to produce accurate plan — Appeal by purchasers dismissed
In the action at first instance the plaintiff vendor, a farmer of Boat Lane, Gibsmere, sought an injunction and damages for trespass against the defendant purchasers, who became the owners of the bungalow, Gibsmere, Nottinghamshire. The bungalow had been built on land belonging to the plaintiff’s father in 1933 and had formed a continuous extension of his farming land. Planning consent for the bungalow had been obtained in 1962 and the plaintiff and his father built the bungalow and, at a later stage, added the garage. A concrete drive was built to the road and edged with shrubs. After his parents’ death, the plaintiff put the bungalow on the market in 1986 while the remainder of the adjacent land still remained in his possession. The defendants had made it clear that they would want to extend the property. At the time of transfer to the defendants, a plan was attached which was not contemporaneous and the provenance of the plan was unclear. The plan showed some dotted lines about 10 ft into an adjoining ploughed field but did not show the garage.
The defendants went into occupation and asserted ownership over a strip of land about 12 ft wide at the front and rear, running the depth of the defendants’ property on the northeast side. The reply to enquiry 1(A) of the preliminary enquiries before their purchase had stated: “Viewed from the road, there is no fence on the first part of the left hand boundary but it is clear where the boundary is”. The judge at first instance found for the plaintiff, who continued to plough the field adjoining the bungalow, to which he had access by a gate. The defendants appealed on the grounds, inter alia, of the effect of contract and the transfer of the property, contending that the judge had failed to construe the plan properly. Once the plan was clear and unambiguous, extrinsic evidence other than as to physical layout of the land should not have been admitted. They further contended that the vendor was in breach of his duty to ensure site plan was accurate.
Held The appeal was dismissed.
1. In construing the plan, an objective approach must be assumed, namely that a plan was addressed to a lay person and was to be construed by the ordinary reasonable observer. The construction of any contract must be objective, the circumstances viewed as known to the parties at the time and the question was to be approached on the footing of the locus in quo.
2. Further, it was not realistic to look at a plan in isolation. The judge had to construe it in its context, in light of the replies to enquiries at the time and by examining all the surrounding circumstances and documentation. The answer then had to be given to the question posed: “What would the reasonable layman think he was buying?”
3. In the context of the present case, the plan was not accurate but was annexed to the transfer and seen by the defendants after they had received a reply to their preliminary enquiries that it was “clear” where the boundary lay. The plan showed dotted lines running from the road, but otherwise unmarked and unidentified, some 10 ft into the ploughed field. It did not represent accurately what was on the ground, for it did not show the garage at all. The court had had the assistance of a number of photographs which showed that the adjacent land was ploughed and came up to the position of the garage. The farm gate ran immediately across the disputed strip. If the defendants’ contention were correct, its consequence would be to make the farmer dig up the hedge and reposition the gate. There was only one answer to the question of construction as viewed by the reasonable observer, ie that the boundary, as the judge had found, did not include the disputed strip of land but lay along the line of shrubs at the edge of the concrete drive.
4. The defendants also submitted that there had been a breach of a duty of care for which the remedy should be a transfer to the defendants of the disputed strip in lieu of damages. However, there was no common mistake for which rectification of the contract could be sought and there was no authority for the suggested remedy of transfer of land in lieu of damages.
Godfrey M Jarand (instructed by Gompertz Buckley, of Hucknall, Notts) appeared for the appellant purchasers; and Atalanta Goulandris (instructed by Epton & Co, of Lincoln) appeared for the respondent vendor.
