Lanfear & Anor v Chandler

In construing a conveyance or transfer plan, the court must consider the instrument as a whole together with admissible evidence of the physical features known at the date of the conveyance. Extrinsic evidence forms part of contextual construction, but cannot contradict clear words or a clear plan. “T” marks are relevant evidence of intended ownership or maintenance of a boundary feature, especially where linked to an express covenant, but they create no conclusive or legal presumption. Their effect must be assessed with the wording, plan and site evidence. Where the plan is inaccurate or ambiguous, the reasonable layman’s understanding of the developed site may resolve the boundary. An appellate court may correct an order that does not reflect the trial judge’s findings.

The claimants owned 3 Barton Road and the defendant owned 5 Barton Road. Following a trial in the Reading County Court, His Honour Judge Hamilton declared the boundary between the properties and ordered removal of a car port whose supports rested on the disputed strip. The defendant appealed on two points.

First, she challenged the finding that a strip between the properties belonged to the claimants, relying on the transfer plans and “T” marks linked to a repairing covenant. Secondly, she argued that the order incorrectly stated that the boundary along the defendant’s garage followed its wall, although the judge’s reasoning and the joint expert’s evidence indicated an 80 mm offset. The central issues were the proper construction of the 1971 transfers and whether the order accurately recorded the judge’s decision.

1. The appeal was allowed in part. The order was varied to state the measured boundary along the garage. The appeal was otherwise dismissed.

2. The parties’ rights depended on the true construction of materially identical 1971 transfers. The plans were too inaccurate to resolve the dispute by measurement. The court therefore had to construe the transfers by reference to their wording, the plan and the physical features as they would have appeared to a reasonable layman at the date of the first purchase. Evidence of the site was part of contextual construction, not an alternative to construing the conveyance. It could not contradict clear terms.

3. The use of “T” marks was a relevant factor, reflecting a common practice of identifying ownership or maintenance responsibility for a boundary feature. It did not create a legal presumption, whether rebuttable or otherwise, that the feature belonged to the adjoining owner indicated by the mark. The effect of the marks depended on the other terms of the transfer, the plan and, where appropriate, the ground evidence.

4. Here, the plan assumed a straight boundary and a single fence, whereas the houses and boundary had been constructed differently. The concrete edging stones, the position and orientation of the white fence, and the practical consequences of attributing the return fence to no. 5 created ambiguity. The reasonable layman would have understood the relevant sections of white fence to belong to no. 3. Clause 5(b) of the transfer was therefore construed as applying only to fencing beyond point E. The trial judge was right on this issue.

5. The trial judge had accepted the expert’s proposed line between points E and F, but the sealed order stated that the boundary followed the garage wall. The Court of Appeal was not persuaded that the judge intended to reject the expert’s 80 mm allowance and varied paragraph 1(f) accordingly.

6. Obiter: where a discrepancy is apparent when a draft order is submitted for approval, it should ordinarily be raised with the trial judge before an appeal, while the judge remains able to resolve it.

• Court of Appeal (Civil Division): [2013] EWCA Civ 1497. The defendant’s appeal from the Reading County Court was allowed in part. The order was varied in relation to the garage boundary, and the appeal was otherwise dismissed.

• Reading County Court: His Honour Judge Hamilton, order dated 13 November 2012. The court declared the boundary and ordered removal of the car port.