Banerjee (2) Alison Clare Banerjee v (1) Steven Thomas (2) The Vine Market Deeping Limited (Boundary dispute) [2014] UKFTT 990 (PC)

FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)
Between
Banerjee (2) Alison Clare BanerjeeApplicant / claimant(1) Steven Thomas (2) The Vine Market Deeping Limited (Boundary dispute)Respondent / defendant
[1]The Applicants are the registered owners of Courtfield House, 21 Church Street, Market Deeping, Lincolnshire – Title Number LL166376. The second named Respondent – The Vine Market Deeping Limited – is the registered proprietor of the neighbouring title to the north, a public house known as The Vine, 19 Church Street, Title number LL294073 (“the Vine”). Mr Thomas is a Director of and shareholder in the company, and was the original objector to the Applicants’ application. The properties lie on the eastern side of Church Street. The Vine is an attractive stone building on two floors, with a window on either side of the front door, and two windows on the first floor. There is a down pipe running from the gutter at the southern end of the roof, which marks the southern end of the building. However, viewed from the street, there is another building (“the Outbuilding”) attached to the southern flank wall of the Vine. This has a blank wall to the street, and forms a solid lean-to structure, the highest point of its roof being level with the eaves of the Vine, and the lowest point being just above the top of the garden wall of the neighbouring property, Courtfield House. Viewed from the south, from within the Applicants’ front garden, the Outbuilding has a southern wall constructed from breeze blocks, with a door giving access from the garden, and two windows on either side of the door. From the south-eastern corner of the Outbuilding the external wall runs for a short distance northwards, and then intersects with a substantial stone wall (“the Boundary Wall”) that runs at a slight angle eastwards along the northern side of the Applicants’ garden. This wall forms the physical boundary between the Applicants’ garden, and the Respondents’ title. The Outbuilding is inaccessible from the Respondents’ property to the north. Its northern wall forms the southern wall of the Vine. Its eastern wall is inaccessible, due to the presence of a toilet block erected within the rear yard of the Vine. This has the effect of completely blocking access to it. An inspection of the interior of the Outbuilding does not reveal any historic sealed openings. It does not appear that the Outbuilding has ever been accessible from the north. It is currently in use by the Applicants as a general garden store and shed.[2]The filed plan of Courtfield House shows its boundary with the Vine as running in a straight line, which does not tally with any actual physical feature at this point. Although this of course is only a general boundary, it simplifies the boundary line, bearing in mind the angle of the Boundary Wall and the slight projection of the southern wall of the Outbuilding. However, the filed plan relating to the Vine shows the boundary as running along the actual line of the Boundary Wall and then along the southern face of the Outbuilding, forming a slight kink or dogleg. In other words, the Outbuilding is shown as forming part of the Respondents’ title, albeit that it cannot be accessed other than through the Applicants’ land. The Outbuilding is shown coloured blue on the Land Registry’s Illustrative Plan – the interior of the Outbuilding projecting northwards into the Respondents’ title to form a salient.[3]On 26 th September 2012 the Applicants applied to HM Land Registry to alter the Respondents’ title by removing the Outbuilding from it, and re-drawing the boundary on the filed plan so as to include it within the Applicants’ title. The application was made on the grounds that the Respondent’s filed plan is incorrect, in that historically the Outbuilding has always formed part of Courtfield House and should not be shown as included within the Vine’s title. The contention is that when the title to the Vine was first registered in March 2008, the Land Registry mistakenly included the Outbuilding. The filed plan of Courtfield House, of course, does not specifically identify the Outbuilding, nor does it accurately map the angle of the Boundary Wall. Since it is only a general boundary, it cannot be conclusively stated that it excludes the Outbuilding. However, the filed plan relating to the Vine clearly does include it. The application is made under Schedule 4 of the Land Registration Act 2002 (“the 2002 Act”). Since the Respondents are not physically in possession of the Outbuilding, the Applicants argue that the protection afforded to proprietors in possession does not apply, under paragraph 6 of the Schedule, and the register should be altered accordingly. Furthermore, although I did hear evidence relating to the possession and user of the Outbuilding dating back to at least 1999 (earlier of the statement of Mr James Howard Thomas is taken into account), this is not a claim based on adverse possession, and I am not treating it as such. THE HEARING[4]I had the benefit of a very useful site view proper to the hearing. Evidence was given by Mrs Banerjee, and her predecessor in title Mr Nigel Moore, who together with his wife was the first registered proprietor of Courtfield House. They were both cross-examined on their witness statements by the Respondents. Mrs Thomas also gave evidence, and was not cross-examined. I read other witness statements, from a Mr Mills and Mr James Howard Thomas, but these witnesses were not called to give evidence. THE APPLICANTS’ DOCUMENTS[5]The Applicants’ case is that they are able to make out a good paper title to the Outbuilding. However, the Applicants are unable to produce all the title documents that led to first registration. They have produced copies of certain documents, which they obtained from Mr Moore, a previous owner, who gave evidence before me. These include documents of some antiquity, including a Plan dating from 1863, of “House, Premises, Gardens and Field in the occupation of W.B Deacon Esq. ”. The house is Courtfield House, and the plan shows a building identified as “ Carriage House ”, in the approximate position of the Outbuilding – i.e in the extreme north-western corner of the garden. A valuation in 1884 of an estate belonging to the same W.B Deacon Esq. refers to a “ Coach House ” within the curtilage of Courtfield House. The Applicants have produced various conveyances, but the plans are drawn to a small scale and I do not think any very safe conclusions can be drawn from them. However, the most recent Conveyance of Courtfield House that they have been able to produce is that dated 27 th April 1959 and made between Mr Jones (1) and Mr and Mrs Sandercombe (2). At that time Courtfield House was known as “the Limes”. The parcels clause reads:
“ ALL THAT messuage or dwellinghouse known as “The Limes” situate at Church Street Market Deeping aforesaid with the barn stable garage and outbuildings and garden thereto adjoining and belonging …. For the purpose of identification only delineated on the plan annexed hereto (being an extract from the said Ordnance Survey Map) and thereon edged pink….”
. They are unable to produce any documents evidencing the devolution of title to “The Limes” from the Mr and Mrs Sandercombe to the Moores, who were the first registered proprietors. However, they have produced a Schedule of Deeds and documents relating to Courtfield House, and a partial Abstract of Title relating to an intermediate owner, Mr Wynne. From this Schedule, it is apparent that Mr and Mrs Sandercombe sold off part of the land which they acquired from Mr Jones in 1959, to builders known as Adkins & Shaw (Builders and Contractors) Limited. They seem to have retained the house itself, which they then sold to Mr Wynne in 1961. In 1965 Williams and Deacons Bank Limited sold the Limes to Dr and Mrs D Thomas – presumably this was a sale by Mr Wynne’s mortgagees. Dr and Mrs Thomas eventually sold the property to Mr and Mrs Moore in February 1999, resulting on first registration. OTHER EVIDENCE RELIED ON BY THE APPLICANTS[6]The Applicants rely on certain additional facts and matters. They point to the similarity of the stonemasons’ makers’ marks on the Outbuilding and Courtfield House. They refer to the fact that in 2009 the Boundary Wall between the two properties, a substantial stone structure – to the east of the Outbuilding – was repaired and partly replaced by them and the Respondents’ predecessors in title, the brewers Charles Wells Ltd. They have produced a detailed survey and work schedule prepared in 2009 by a firm of engineering consultants called Bingham Hall, which formed the basis of the rebuilding works. They rely on this to demonstrate that the Boundary Wall – a listed structure – was rebuilt along exactly the same line as previously, to rebut the Respondents’ suggestion that in some way the boundary had been adjusted during the rebuilding process. Mrs Banerjee in her witness statement explains how the dispute with the Respondents developed, after they had acquired the Vine in 2011. Suffice it to say that views have become very entrenched, and there is considerable bad feeling between the parties. In August 2012 the Respondents wrote to the Applicants stating that they intended to take possession of the Outbuilding within 28 days, since they considered that it fell within their registered title and ownership. This triggered the Applicants’ application to alter the register in September 2012. A survey was conducted by the Land Registry in October 2012, and the results and photographs have been produced in evidence. The requisition to the surveyor indicates that the Outbuilding is not specifically identified on the existing Ordnance Survey map, and there is uncertainty as to which title it is included in.[7]A witness statement was obtained from Mr James Howard Thomas, who is the son of the Dr and Mrs Thomas who bought Courtfield House in 1965. He was born there in 1967 and lived there full-time until leaving for university in 1985. It was his recollection that the Outbuilding – referred to by the family as the “Garden Tool Store” – was always exclusively used and accessible by his family as occupiers of Courtfield House. There was no means of access from the Vine to the north. He recalls that his parents employed a builder to construct the southern wall, with breeze blocks, and to install the door and windows. Prior to that time, the building was in effect an open bay, with stone walls on three sides, but no wall to the south where it adjoined the Courtfield House gardens. Mr Thomas, who works in Bath, was not called to give evidence, but his statement is of course admissible. However, “live” evidence was obtained from Mr Nigel Edward Moore, who, together with his wife Nicola, bought Courtfield House in 1999 when it was first registered. He recalled that the Outbuilding had the appearance that it has today, in other words that the breeze block wall had already been constructed on its south side. He confirmed that it was accessible only from within the garden of Courtfield House, and was exclusively used and occupied by himself and his family from the time of his purchase. He rejected the suggestion that the entrance was blocked by trees and bushes. Mr Moore is a solicitor, and a partner on the firm of which Mrs Banerjee is a member. The Respondents invited me to bear this in mind when assessing his evidence. THE RESPONDENTS’ CASE[8]From the Respondents’ side, it is their case that the Outbuilding is included within their title, and that the Applicants are unable to prove a good title to it themselves. They state that they believed from the outset that they would be able to incorporate the Outbuilding – variously described as “the Extension” or “void” – back into the pub premises. They thought that they would be able to remove the unsightly toilet block and open up the “extension”, increasing the floor space available to them, and improving the appearance of the building. Accordingly, they say that they were surprised and alarmed when the Applicants claimed that they owned the Outbuilding. They do not consider that any of the documents produced by the Applicants demonstrates their ownership. Accordingly, they object to the application, and contend that the register is correct. THE PROPER APPROACH[9]Before I consider the title documents, such as they are, and the other evidence on which the Applicants rely, it might be helpful at this stage to outline the proper approach to ascertaining the boundaries of Courtfield House by reference to the documents and other evidence. The following (regrettably lengthy) passage from the judgment of Lord Justice Mummery in the Court of Appeal in the case of Pennock v Hodgson [2010] EWCA 873 provides a useful introduction:[1]In this boundary dispute the main ground of appeal is that David Richards J, in his judgment of 31 July 2009, construed an unambiguous conveyance by relying on inadmissible evidence of physical features of the land conveyed that are neither mentioned in it, nor identified in an attached plan. The result was a declaration of the position and ownership of a boundary feature that contradicted the conveyance.[2]The parties’ neighbouring properties were in common ownership before division occurred and the question of the boundary could arise. At the respective dates of purchase from the common vendor each of the purchasing parties reasonably believed that the relevant conveyancing documents gave them title to the bed of a narrow stream. A plan taken from the Ordnance Survey map and attached to the conveyance of the first area of land sold off showed a black wiggly line. It is agreed that the line represented the stream.[3]The claimants, who have brought this appeal, contend that the stream ran through land retained by the vendor, who later transferred the retained land, including the bed of the stream, to them.[4]The defendant, who is the respondent to the appeal, was a purchaser under the first conveyance. She contends that the boundary of the land conveyed to her and her husband was the line of a post and wire stock fence, which stood back from the southern side of the stream. The fence existed at the time of that conveyance, though it was neither mentioned nor (unlike the stream) was it shown on the attached plan.[5]The judge held that the bed of the stream had passed to the defendant along with a strip of its southern bank as far back as the fence. It followed that the later transfer of the retained land to the claimants could not, and did not, pass the bed of the stream to them. In reaching his decision the judge relied on evidence of the physical features of the land at the date of the first conveyance, including the fence. He held that the position of the fence would have been considered by a reasonable person to be the boundary line of the property conveyed to the defendant.[6]The claimants complain that the judge’s method of construction was incorrect. If he had applied the proper principles, he would have had to find in their favour. Authorities, mainly from this court, were cited in support of the contention that the judge ought not to have looked outside the conveyance in order to ascertain the boundary and whether the bed of the stream was retained or conveyed.[7]The opinion of Lord Hoffmann in Alan Wibberley Building Limited v. Insley [1999] 1 WLR 894 is now regarded as the leading modern authority on the construction of the parcels in a conveyance. The rest of the Appellate Committee agreed with it. It discusses the status of an Ordnance Survey plan attached to a conveyance “for the purposes of identification” and the inferences that may properly be drawn from physical features of the land existing and known at the date of the conveyance. They are all familiar themes in boundary disputes.[8]Ought the judge to have ignored evidence of the presence and position of the fence, when construing the parcels clause and the attached plan? The judge should, according to the claimants, have excluded the fact of the fence from the process of construction, because there was no ambiguity in the presence and position of the stream shown as a boundary feature on the attached plan.[9]Alan Wibberley supplies the solution. From it the following points can be distilled as pronouncements at the highest judicial level :-(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time.(2) An attached plan stated to be “for the purposes of identification” does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.(3) Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.(4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.[10]The long standing general principles of how to construe a conveyance underpin those points. In Eastwood v. Ashton [1915] AC 900 at 906 Earl Loreburn said in a dispute about title to a small strip of land:- “We must look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what was therein expressed as the intention of the parties.”[11]Lord Parker said much the same thing in different words (see p913.) He also said:- “There is nothing on the face of the indenture to show that any one of these descriptions in any way conflicts with any other. In order, however, to identify the parcels in a conveyance resort can always be had to extrinsic evidence…” (p. 909) “It appears to me that of the three descriptions in question the only certain and unambiguous description is that by reference to the map. With this map in his hand any competent person could identify on the spot the various parcels of land therein coloured red. The other descriptions could only be rendered certain by extrinsic evidence…” (p. 912)[12]Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach: Partridge v. Lawrence [2003] EWCA Civ 1121 ; [2004] 1 P. & C.R. 176 at 187; cf Beale v. Harvey [2003] EWCA Civ 1883 ;[2004] 2P. & C.R. 318 where the court related the conveyance plan to the features on the ground and concluded that, on the facts of that case, the dominant description of the boundary of the property conveyed was red edging in a single straight line on the plan; and Horn v. Phillips [2003] EWCA Civ 1877 at paragraphs 9 to 13 where extrinsic evidence was not admissible to contradict the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. Neilson v. Poole (1969) 20 P. &C.R 909; Wigginton & Milner v. Winster Engineering Ltd [1978] 1WLR 1462; Scarfe v. Adams [1981] 1 All ER 843 ; Woolls v. Powling [1999] All ER (D) 125; Chadwick v. Abbotswood Properties [2004] All ER (D) 213 and Ali v. Lane [2006] EWCA Civ 1532 were also cited on the construction points.[13]Before the judge and in this court it was agreed that the parties’ subjective beliefs about the position of the disputed boundary in this case and about who owned the bed of the stream were extrinsic evidence that was inadmissible in the construction of the relevant conveyance: Investors Compensation Scheme Ltd v. West Bromwich BS [1998] 1 WLR 896 at 913. The effect of the conveyance is not determined by evidence of what the parties to it believed it means, but what, against the relevant objective factual background, they would reasonably have understood it to mean.10. Furthermore, where a title is registered, it is provided by section 60 of the 2002 Act that the title boundaries are general boundaries only, in other words that the line shown on the filed plan does not purport to determine the exact line of the boundary. Since the exact line of the boundary cannot be determined by reference to the filed plan, it is usually necessary to look at the pre-registration title deeds in order to ascertain the precise boundary line. This approach has been followed in a number of cases – for example, in Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch) . Where it is possible to ascertain the boundary more precisely, by whatever means, the general boundary may be altered so as to show a more accurate boundary – see the Fallon case. FINDINGS AND CONCLUSIONS11. Before deciding whether to alter the parties’ titles in accordance with the Applicants’ application, I must first seek to establish the true boundary line. Having ascertained that, I must consider whether the general boundaries, as presently shown on the respective filed plans, is consistent with the true boundary line. If it is, no alteration is required. If it is not, I must consider whether it is possible to perform the Fallon exercise, and alter the filed plan boundary to more accurately depict the general boundary. I should point out, for clarity, that there is a procedure available to registered proprietors, whereby the Land Registry may be required to register a “determined boundary”. That is a separate procedure which has not been invoked in this case. The exercise in this case is to find the true boundary line, in order to ascertain whether there has been a mistake on the register such as to invoke the registrar’s powers of alteration under Schedule 4.12. The exercise of determining the true boundary is complicated in this case by the absence of the immediate pre-registration title documents. On first registration in 1999, the Moores must have been able to deduce a good marketable title to Courtfield House. That would require a root of title at least 15 years old – namely, the Conveyance of July 1985 to Dr and Mrs Thomas. That document – and the 1999 Transfer to the Moores – has not been produced. Mr Moore was asked about the lack of documentation, and he replied that he had handed over to the Applicants all the documents that he retained, but these did not include these specific deeds. In the circumstances, I think it is legitimate to draw an inference as to what the 1965 Conveyance would have contained. It must, at the very least, have included a reference to “the Limes”, or Courtfield House, or 21, Church Street, Market Deeping – being the various description of the same property, now registered under title number LL166376. The Schedule of deeds and documents prepared prior to first registration is headed “ COURTFIELD HOUSE, 21 CHURCH STREET, MARKET DEEPING ” and clearly the conveyancing will have been done by reference to that precise description or something broadly equivalent. 13. On this basis, it must follow, in my judgment, that the Outbuilding was included in the conveyance. Any conveyance of this property must necessarily include everything within the physical boundaries of the site. The evidence given by Mr James Howard Thomas (albeit untested by cross-examination) and by Mr Moore confirms that the Outbuilding lay within the physical boundaries of Courtfield House from at least 1965 onwards. I have no reason whatsoever to doubt the accuracy of this evidence. Furthermore, the Outbuilding was only accessible from within the Courtfield House gardens and was totally inaccessible from the Vine. There is nothing in the evidence, or from a physical inspection of the site, to suggest that there have ever been any openings to allow access into the Outbuilding from the Vine. The documents produced by the Applicants – particularly, the 1863 plan, the 1884 valuation and the 1959 conveyance to Mr and Mrs Sandercombe – are entirely consistent with this conclusion. It is possible, indeed probable, that the Outbuilding began life as a carriage or coach house with open bays, serving “the Limes”, subsequently Courtfield House, and falling within the description of “ “The Limes” situate at Church Street Market Deeping aforesaid with the barn stable garage and outbuildings and garden thereto adjoining and belonging ” as contained in the 1959 Conveyance to Mr and Mrs Sanderscombe. Although various conveyance plans have been produced, they are all somewhat unsatisfactory in terms of scale and detail, and in any event they appear to be included for the purposes of identification only. Any purchaser of Courtfield House – indeed, any objective bystander – would assume and would be entitled to assume that it included an outbuilding that was situated within its gardens and only accessible to occupiers of Courtfield House. A conveyance of Courtfield House must be construed accordingly. I conclude, therefore, that the true boundary between the Vine and Courtfield House follows the eastern and northern walls of the Outbuilding, so that its interior lies within the curtilage of Courtfield House.[14]The general boundary shown on the filed plan of the Vine – LL294073 – is not consistent with the true boundary. It shows the Outbuilding as included within this title. The filed plan relating to Courtfield House – LL166376 – is less accurate, showing the general boundary as running in a straight line down the side of the Vine building. It is not clear whether the Outbuilding is included or excluded. On any footing, however, the Respondents’ title plan is inaccurate, and I do not consider that the discrepancy falls within the tolerances of the general boundaries rule. In my judgment, therefore, the title to LL294073 contains a mistake as to the true boundary line and should be altered to show a more accurate line, as occurred in the Fallon case. Since the Respondents are not in physical possession of the Outbuilding they are not entitled to the protection given by paragraph 6 of Schedule 5. Indeed, the opposite applies – paragraph 3(3) requires the mistake to be corrected by alteration of the register, in the absence of “ exceptional circumstances ”. There are no such exceptional circumstances in this case. Whatever the Respondents may now say or believe, when they purchased the title they must have been aware that “the void” or “the Extension” was enclosed within the Applicants’ garden and wholly inaccessible from their own side. They cannot reasonably have believed that they were buying it, even if such reasonable belief might be said to constitute an exceptional circumstance, which I very much doubt. On the basis of the findings I have made, the Outbuilding never formed part of the Vine, and leaving it within the registered title would be perverse.[15]Given that the Respondents’ title will be altered, it follows that the Applicants’ title should also be altered, so that the common general boundary is the same. I shall therefore direct the Chief Land Registrar to give effect to the Applicants’ application dated 26 th September 2012. As to costs, these would normally follow the event: i.e the Respondents should pay the Applicants’ costs. Quite how much the Applicant can recover by way of costs is problematic. Although Mrs Banerjee is a solicitor, the Applicants are litigants in person, and can only recover costs on that basis. Although the regime for litigants in person has improved since 1 st July 2013 when the Adjudicator’s functions were transferred to the Property Chamber of First-Tier Tribunal, it might be regarded as unfair to expose the Respondents to additional liability, given the rules in force when the dispute was originally referred. If the Applicants seek to recover more than simple out of pocket expenses, they should file and serve their written submissions on costs no later than 8 th November 2013. The Respondent may respond in writing no later than 22 nd November 2013. In either case the Applicants should provide a statement of the costs they claim, with vouchers. Dated this 25 th day of October 2013 BY ORDER OF THE TRIBUNAL