Joyce v Rigolli

An informal boundary agreement is ordinarily presumed to identify and demarcate an uncertain boundary rather than to convey land. It is therefore outside section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989, even if its implementation involves trivial conscious exchanges of land. Such transfers are assessed in aggregate, not by netting one against another.

Where title plans do not identify a boundary with sufficient certainty, extrinsic evidence may be used. An appellate court will not disturb a trial judge’s factual finding on the agreed boundary unless it was not open on the evidence.

The appellant owned 6 Chanton Drive and the respondent owned the adjoining 7 Chanton Drive. The transfer of the latter property included a plan and a measurement intended to identify their common boundary. The plan did not state the angle from which the measurement was to be taken.

The respondent built a fence and garage. He contended that, in November 2000, he and the appellant’s husband, acting as her agent, orally agreed the boundary on the ground, including a diversion around a cherry tree. The appellant alleged encroachment.

His Honour Judge Hull QC, sitting in the Epsom County Court, held that the title documents did not fix the boundary and that the agreed boundary was binding. The appellant challenged the adequacy of the title plans, the validity of the oral agreement under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, and the judge’s factual finding as to the agreed line.

1. Appeal dismissed. Lady Justice Arden held that the transfer plan and measurement did not identify the boundary with sufficient certainty. The judge was entitled to reject the expert attempt to derive a precise line from general boundary material. The court applied the warning in Scarfe v Adams [1981] 1 All ER 843 that a transfer dividing property must identify each parcel and boundary with adequate precision. Extrinsic evidence was therefore admissible.

2. The oral agreement was a boundary agreement of the demarcating kind described in Neilson v Poole (1969) 20 P&CR 909. Its purpose was to identify on the ground the boundary which the parties believed should exist, rather than to effect a conveyance. The small areas of land which may in fact have changed sides of the line did not alter that character. Section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989 did not require the agreement to be in writing. In assessing whether transfers under such an agreement are trivial, the court aggregates conscious transfers rather than netting them.

3. Lady Justice Arden further held, as an independent ground, that the agreement had been acted upon and gave rise to proprietary estoppel. Following Yaxley v Gotts [2000] Ch. 162, the resulting constructive trust fell within section 2(5), so that section 2(1) would not apply even if the agreement had been one for a disposition of land. Sir Martin Nourse agreed that the agreement was outside section 2(1), but considered it unnecessary to rely on section 2(5).

4. The judge had heard the witnesses, conducted a site visit and was entitled to regard the evidence about the fence and cherry tree as substantially consistent. His finding that the boundary was agreed along the relevant line was open to him and could not be disturbed on appeal.

• Court of Appeal (Civil Division) — dismissed the appeal and affirmed the County Court’s dismissal of the action: [2004] EWCA Civ 79.
• Epsom County Court — His Honour Judge Hull QC, by order dated 3 April 2003, held that the boundary agreement was binding and dismissed the action.