02 Mar 2017
A General Guide to Interpreting Deeds in Boundary Disputes
Boundary disputes can now be heard either in the County Court or before the Land Registry Adjudicator (now part of the Property Chamber of the First-Tier Tribunal). In 2016 there were apparently conflicting decisions from the Upper Tribunal about whether the FTT could resolve all aspects of a boundary dispute or whether the powers were restricted to determining only the boundary line contended for by the applicant (see Murdoch v Amesbury  UKUT 3 (TCC); Bean & Saxton v Katz & Katz  UKUT 168; William Davis Ltd v Lowe & Lowe  Land Registry Ref/2014/0573. There is a pilot scheme in place which temporarily appoints judges of the FTT to the County Court to resolve jurisdictional restrictions.
Owners of adjoining land fall out when one asserts the physical boundary between their land does not reflect the plans filed at the Land Registry. The plans filed at the Land Registry are not usually conclusive and indicate the 'general boundary'. This means that the 'legal boundary', which is what the owners in dispute need to know, is not shown by the filed plan.
Instead, the correct approach to ascertaining the location of a legal boundary is identifying and interpreting the relevant conveyance or deed.
Evidence about the location of fences and other boundary features is admissible for the purposes of interpreting a conveyance. Consideration of such evidence takes place alongside other evidence that pre-dates the creation of the deed. There was conflicting authority about this but the matter has now been settled by Adam v Shrewsbury  where it was said that modern interpretation..
“...turns on the proper analysis of the common intention of the parties, as gathered from the terms of the conveyance, the position on the ground, and the communications passing between the parties before the execution of the conveyance, which would include the provisions of the contract. Although this court excluded as legally irrelevant any communications between the parties outside the conveyance (unless, of course, there is a claim for rectification) in Scarfe v Adams  1 All ER 843 at 851, it seems to me that such a conclusion is inconsistent with the general principle that when construing a document (whether or not it relates to land) all the surrounding circumstances should be taken into account. That this aspect of Scarfe’s case is not the law was decided by this court in Partridge v Lawrence  1 P&CR 176 at p.187)” (see also Chadwick v Abbotswood Properties Limited  EWCH 1058, per Lewison J at paragraph 43).
There was once conflicting case-law on whether the legal boundary could be determined by factors outside the conveyance or deed. This followed a long tradition affecting all sorts of contracts and notices and the strict rules affecting interpretation. Whether the strict rule was adhered to depended on how clear the language of the main document was.
Subsequent conduct can also be relevant as tending to show how the parties acted on their belief as to the position of the boundary.
Evidence about the location of fences and other boundary features will in many cases be critical. Where the conveyance or deed is unclear, a court is likely to rely on the legal boundary as reflecting the physical boundary which is made up of fences, ditches, hedgerows etc. When the document is of no value at all for reasons of poor drafting, there will be nothing else to rely on. A case such a Neilson v Poole (1969) 20 P&CR 909 captures the point :
“...in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result. The prime function of a conveyance is to convey. As to any particular parcel of land, either the conveyance conveys it, or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed. The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were. Yet modern conveyances are all too often indefinite or contradictory in their parcels. In such circumstances, to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy; and I have heard none.”
Nor should documents be interpreted in a bubble, isolated from the context in which they were created. The position of physical boundaries all forms part of that wider context.