Drake & Anor v Fripp

A land transfer must be construed as a whole and against the physical circumstances reasonably available to the parties when it was made. A plan stated to be for identification only, not to scale and derived from a small-scale map does not ordinarily determine precise boundaries.

Registration by reference to a general-boundaries plan does not confer title to every area apparently enclosed by the plan. Once the true boundary is established, substituting another general boundary in a more accurate position does not prejudicially affect a proprietor whose title never included the disputed land. Whether a discrepancy remains a boundary question is one of fact and degree. Its area is relevant but not decisive.

The dispute concerned approximately 1.5 acres lying between a Cornish hedge and a post-and-wire fence. SLA Property Company Ltd owned and Mr Drake tenanted the transferred land. Mr Fripp owned the retained land. The transfer plan appeared to follow the hedge, while covenants in the transfer referred to maintaining the fence between identified points in stockproof condition.

A deputy adjudicator to HM Land Registry held that the fence was the true boundary and directed alteration of the title plan. Ms Susan Prevezer QC, sitting as a deputy High Court judge, upheld that decision in [2010] EWHC 2238 (Ch). On the second appeal, the issues were whether the transfer included the disputed land and whether correcting the registered title plan amounted to rectification which prejudicially affected SLA's title.

1. Appeal dismissed unanimously. The transfer had to be construed as a whole and in the context of the physical features existing when it was made. The parcels clause, approximate acreage and plan did not conclusively identify the boundary. The plan was for identification only, was not to scale and had been reduced from an Ordnance Survey map.

2. The remaining clauses made the fence the boundary. Clauses 5 and 6 linked the boundary between points B and F to the vendor's obligation to put the fence into stockproof condition and the purchasers' obligation thereafter to maintain it. The purpose of preventing lambs from encroaching beyond the fence reinforced that construction. The physical circumstances on the ground supported the same conclusion. The disputed land therefore remained with the vendor and subsequently passed to Mr Fripp.

3. Under Schedule 4 to the Land Registration Act 2002, correction of a mistake is rectification only if it also prejudicially affects a registered proprietor's title. The filed plan was governed by the general-boundaries rule in rule 278 of the Land Registration Rules. Registration by reference to the Cornish hedge consequently left the exact boundary undetermined. Section 60 of the Land Registration Act 2002 was substantially to the same effect.

4. Once the adjudicator and judge retrospectively identified the fence as the precise boundary, it became apparent that SLA had never acquired title to the disputed strip. Moving the line on the title plan therefore corrected the representation of the boundary without prejudicially affecting SLA's title. The revised plan would show another general boundary in a more accurate position.

5. There is no fixed quantitative limit separating a boundary dispute from a wider property dispute. Whether a discrepancy is appreciable is a question of fact and degree, assessed in all the circumstances. The ratio between the disputed area and the land remaining may be relevant. No distinction in principle arises merely because the competing boundaries are two physical features.

6. The adjudicator was entitled to direct alteration of the title plan, and the judge correctly upheld that direction. It was unnecessary to decide whether SLA was, or was to be treated as, a proprietor in possession of the disputed strip.

1. Court of Appeal (Civil Division): Dismissed the second appeal in [2011] EWCA Civ 1279. It upheld both the interpretation that the fence was the boundary and the direction to alter the title plan.
2. Chancery Division: Ms Susan Prevezer QC, sitting as a deputy High Court judge, dismissed the appeal from the adjudicator in [2010] EWHC 2238 (Ch).
3. HM Land Registry: The deputy adjudicator decided that the fence was the true boundary and directed alteration of the title plan.