Kerdene Ltd v Pernull-Excell

A disputed boundary created by an original conveyance must be determined by reference to the property’s position when the land first came into separate ownership, using the conveyance plan and other evidence then available. A later purchaser’s understanding of the property, or later physical features and occupation, cannot determine the boundary if they do not bear on that earlier position. Fresh evidence must be sufficiently important and relevant to the critical issue to justify appellate intervention. A defence under the Land Registration Act 2002 based on prolonged occupation and reasonable belief in ownership turns materially on the occupier’s state of mind.

Kerdene Limited claimed that the garden occupied by Pernull-Excell extended beyond the boundary shown on the registered plan. Mr Recorder Patterson, sitting in the Bodmin County Court, determined that the true boundary was substantially nearer the property and rejected the defendant’s alternative defence under section 98 of the Land Registration Act 2002.

Mummery LJ refused permission to appeal on paper. Pernull-Excell renewed the application orally before the Court of Appeal. The central issues were whether the recorder had wrongly determined the boundary by reference to the 1988 conveyance and whether the additional evidence or the section 98 defence disclosed a realistic basis for an appeal.

1. Application refused. The applicant showed no reasonable prospect of persuading the Court of Appeal that the recorder had wrongly assessed the evidence or determined the boundary.
2. The critical date was 9 November 1988, when the relevant properties were conveyed out of common ownership. The boundary therefore had to be assessed by considering the property as it then stood, together with the conveyance plan and other documents then available. The perspective of a reasonable purchaser in 2002, when the appellant acquired the property in its later physical form, was not the correct measure.
3. The conveyance plan was the most important evidence. The recorder was entitled to reject the alleged Cornish hedge as an unreliable indication of the original boundary and to accept the evidence supporting a boundary approximately four metres from the bungalow. The Court of Appeal would not interfere merely because the appellant advanced a different interpretation of the plans and neighbouring boundaries.
4. The further photographs, plans and documents were not sufficiently important to alter the conclusion. In particular, the statement from the former owner describing the position in 1998 could not determine the crucial position in 1988. Evidence about a later fence or the absence of objection therefore did not assist the boundary issue.
5. The alternative defence under section 98 of the Land Registration Act 2002 also disclosed no arguable error. Although successive owners had occupied the extended garden for more than ten years, the decisive issue was their state of mind concerning ownership. The recorder’s conclusions on that issue were plainly correct.

Order: application refused.

1. Court of Appeal (Civil Division): Mummery LJ refused permission to appeal on paper. On oral renewal, Lloyd LJ refused the application.
2. Bodmin County Court: Mr Recorder Patterson determined the true boundary and rejected the defendant’s section 98 defence under the Land Registration Act 2002.