Brown & Anor v Pretot & Anor

A transfer or conveyance must be construed as a whole at the date of conveyance. A plan described as being for identification only is evidence, but does not necessarily fix the boundary. The court may consider the actual and known physical condition of the land, including structures and fences, together with the other terms of the transfer. Where those matters conflict with the plan, the plan may give way. The parties’ intentions at the earlier contract date do not necessarily control. This reflects the contextual construction approach applied in Pennock v Hodgson [2010] EWCA Civ 873 and Strachey v Ramage [2008] EWCA Civ 384.

The appellants bought a house and garage from Connolly Homes. The respondents later bought the adjoining plot. A dispute arose over the western boundary because the garage and boundary fence had been constructed in positions that differed from the plan annexed to the appellants’ transfer.

HHJ Bray declared that the boundary ran between points G and D on the plan. The appellants appealed, arguing that the plan, the contract and the physical construction supported the fence as the boundary. The central issue was whether the transfer should be construed by giving precedence to the plan or to the actual garage and fence, read with the transfer’s other terms.

Disposition. Lord Justice Hooper gave the judgment of the court. Lady Justice Rafferty and the Chancellor agreed. The appeal was allowed and the respondents’ claim against the appellants failed.

1. Applicable approach. The transfer had to be construed as a whole at the date of conveyance, with contradictions resolved by reference to its terms and the objective circumstances then existing. The contextual construction principles in Pennock v Hodgson [2010] EWCA Civ 873 permitted the court to consider the actual and known physical condition of the land, with the plan in hand. A plan marked for identification only did not necessarily establish the precise private boundary.
2. Contract and conveyance. The relevant inquiry concerned the transfer, not the parties’ intention at the earlier contract date. Clause 3.2 of the contract did not determine the issue, particularly as the reason for the garage’s position was unknown.
3. Distinction from Spall. Spall v Owen (1982) 44 P&CR 37 was distinguishable. There, the plan identified the plot when no physical boundary existed at the date of contract. In this case, giving the plan precedence would produce the remarkable consequence that part of the completed garage had not been transferred to the appellants and had later passed to the respondents. The court also doubted whether Spall’s emphasis on the contract was consistent with Pennock.
4. Application. The plan conflicted with clause 1.1.9, which defined the garage as the garage built within the plot. It also conflicted with paragraph 15 of the Third Schedule, which assigned responsibility for maintaining the western boundary fence to the owner of plot 56. Those provisions, read with the actual position of the garage and the constructed fence, showed that the whole garage was within the appellants’ plot and that the fence marked the western boundary.
5. Result. The plan’s boundary had to give way to the physical position of the garage and fence, taking account of the parcels clause and the Third Schedule. The declaration made below was set aside to that extent.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 1421, the court allowed the appellants’ appeal and concluded that the respondents’ claim failed.
2. Northampton County Court: HHJ Bray declared that the western boundary ran between points G and D on the plan.