ACCO Properties Ltd v Severn & Anor

In a registered-land boundary dispute, title plans ordinarily show only general boundaries. The court should begin with the language of the conveyance, using a plan where it is intended to define the boundary. If uncertainty remains, admissible extrinsic evidence, including physical features and subsequent conduct, may be considered. An informal boundary agreement may be oral or inferred from the parties’ conduct because it demarcates an uncertain boundary rather than disposes of an interest in land. Such an agreement takes precedence over the boundary otherwise established by the evidence. The court must define the boundary with sufficient certainty. Even where a claimant’s land has been enclosed, an injunction remains discretionary and should be granted judicially, having regard to principle and good reason.

The claimant owned 159A Marshall Lake Road and the adjoining driveway. The defendants owned the neighbouring property, 159 Marshall Lake Road. A narrow strip between the properties was disputed after the defendants cleared vegetation and erected fencing. The parties relied on the 1934 underlease and plan, Ordnance Survey material, a hedgerow, walls, a raised bank, utility structures, fencing, subsequent conduct and discussions between the parties. The claimant sought a mandatory injunction requiring the defendants to remove and resite the fence. The principal issues were the location of the true boundary, whether adverse possession or an informal boundary agreement affected it, and whether injunctive relief should be granted.

1. The court held that the 1934 underlease was a useful starting point, but did not itself identify the disputed boundary. The language of the instrument and its plan had to be supplemented by extrinsic evidence.

2. The court assessed the hedgerow, raised bank, electricity meter housing and poles, chainlink fence, and subsequent conduct. The true boundary, as established by that evidence, ran north of the felled trees and south of the electricity meter housing in its proper position.

3. The court held that the parties’ March 2008 discussion amounted to an informal boundary agreement. The agreed line ran north of the relevant tree trunk, south of the meter housing in its proper position, and towards Marshall Lake Road as nearly as possible at right angles. That agreement took precedence over the line otherwise established by the extrinsic evidence.

4. No sufficient case of adverse possession was established in relation to the disputed land, apart from the possibility concerning the southerly section of the wall, for which no cogent reasoning had been advanced.

5. The claimant was not entitled to a mandatory injunction. Although a narrow strip might have little monetary value, the true owner could ordinarily expect legal protection. The court nevertheless had to exercise the injunction jurisdiction judicially and, applying the rule in Shelfer’s case, awarded modest compensation while allowing the fence to remain.