The great divide

The judgment in Graham Huntley & Ors v Simon Armes [2010] EWCA Civ 396, as reported in Solicitors Journal on 12 May 2010, has fuelled public interest in and added to the weight of case law on boundary disputes, but the extent to which the decision has refined this area of law or provided practical guidance is less clear.

The Court of Appeal ruling was widely reported in the press, the common theme being excitement over the costs of the litigation under tantalising headlines such as: 'Neighbours' war over 35cm strip of land sparks five-year legal battle which could cost losers up to £80K.' The debate emphasised the public's deep-rooted interest with all matters concerning land and property, bringing to mind the adage 'an English man's home is his castle'.

In Huntley, the Court of Appeal upheld a decision of the Kingston-Upon-Thames County Court concerning a typical suburban boundary running front to back between two family homes, separating driveways and gardens: two areas often causing hot dispute for neighbours.

At first instance the claimants relied on a 1930s conveyance plan attached to the defendant's title deeds in seeking to establish the boundary between the parties' properties. The defendant asserted that the physical boundary had not moved before or during his period of ownership (the green line): the conveyance plan did not accord with the physical boundary. The claimants alleged that the defendant had embarked on a process of shifting encroachment in recent years thereby moving the physical boundary away from the conveyance plan boundary, and claimed an injunction for a return of the physicalboundary to the line of the conveyanceplan boundary (the red line).

On appeal the claimants argued that the lower court had failed to properly apply the conveyance plan to the dispute and had reached the wrong conclusion on the boundary line (in maintaining the green line) particularly in regard to findings of fact.

The defendant argued that the conveyance plan had questionable legal and no practical significance, in particular because any land falling outside the original conveyance of the defendant's demise had long since been acquired by adverse possession.

The Court of Appeal found that the lower court's findings of fact were not open to appeal, and those findings fundamentally undermined the claimants' assertions as to the line of the original fence between the parties' properties. The significance of the conveyance plan had been lost to history.

The original developers of the estate had physically fenced the parties' properties in the 1930s on the green line. The land not included in the original transfer had been adversely possessed by the defendant's predecessors in title by the 1950s.

Misleading plans

However, the Court of Appeal did find that the lower court had failed properly to weigh the conveyance plan. The claimants argued that a conveyance is to be given primacy in a boundary dispute, and extrinsic evidence (witness evidence, boundary features, etc) should not have been admissible to contradict a clear transfer (Woolls v Powling CA (Hirst LJ, Cazalet J)). The conveyance plan in Huntley included two measurements in the manuscript: one for the front boundary, the other for the rear boundary, both being 27'6'.

The overall shape of the boundary on the conveyance plan was rectangular, albeit that the defendant's case was that his land had always been wider at the rear. The frontage measurement was referred to in the parcels clause in the body of the conveyance, whereas the rear measurement was not.

In many respects the conveyance plan was roughly drawn, and the defendant submitted that the manuscript measurement to the rear boundary might well be in error, relying on the argument that most conveyancing plans are not drawn up by surveyors, but conveyancing clerks. The court may huff and puff (Scarfe v Adams [1981] 1 All ER 843) but judges have learned over the years that plans, however neat and well drawn they may seem, can be misleading and that notional lines drawn on the ground on the basis of plans have less validity than actual lines that appear from features that can be seen (Wilson v Greene, Moss (Third Party) [1971] 1 WLR 635; Hatfield v Moss [1988] 2 EGLR 58). Indeed, it is of note that the Law Commission warned against the conveyancing practice of trying to fix precise boundary lines: ''¦the process of fixing a boundary will all too likely create a boundary dispute where none had existed' (Land Registration in the 21st Century, Law Com. No.254 CM.402).

The Court of Appeal's conclusion on this point was: 'I would accept that the line of the disputed boundary could only be identified by reference to the line of the fence purportedly marking it at the time of completion. I do not, however, see how that measurement can simply be ignored. True it is that, unlike the frontage measurement, it was not referred to in the parcels clause. But it was included in the plan that the clause incorporated and I see no basis for a conclusion that it was so included by mistake. In my judgment, it must be as definitive as to the width of the rear boundary as is the measurement for the front boundary.'

Accordingly, but for the defendant's claim to adverse possession, it is likely that the claimant would have succeeded in imposing the conveyance plan on the ground. To that extent there is perhaps a tension between the decision of primacy of title documents in Huntley (which might be classed as taking a restrictive construction approach, see for example Horn v Phillips [2003] EWCA Civ 1877) and those recent authorities where extensive evidence is allowed in to determine whether title documents are in fact ambiguous and therefore not determinative of the issue. As suggested by one author: 'If the property in reality known as Vine Cottage does not correspond to the [conveyance] plan then there is ambiguity. If the property in reality formerly occupied by Enoch Cribbins does not correspond with the measurements set out in the [conveyance] plan, then there is ambiguity.'

The decision in Huntley is a useful addition to the arsenal of cases to which property practitioners should refer in cases calling for argument on the application of measurements on conveyance plans.

However, the Court of Appeal was not called upon to consider the question of the application of the conveyance plan asevidence in support of the claimant's claim to the disputed land. The conveyance related to the defendant's land; the original conveyance of the claimants' land was lost. The claimants claimed ownership of the disputed parcel, but were unable to demonstrate that ownership by reference to their own conveyance.

Although it might seem obvious that any land on the other side of the boundary defined by the defendant's conveyance must have been originally conveyed to the claimants' predecessor in title, a question remained. The claimants' case was that the estate, built in the 1930s, provided each property with equal width plots, rectangular front to back. Indeed, the conveyance plan, which was no doubt reproduced for each property sale in the 1930s, showed both properties as rectangular plots. However, the road on which the houses were built was curved. The effect of that curve was that either the plots in fact had wider rears than frontages (that in itself might be considered an ambiguity sufficient to have reduced the primacy of the conveyance plan) or that there was a triangular area of no man's land between the plots which was notconveyed to either party in the 1930s, and to which the claimant had no better claim than the defendant.

Dangers of overreliance

Although the defendant's conveyance (and plan) was treated by the Court of Appeal as having primacy in determining the claimants' boundary, there remains a potential argument in a future case that a defendant's conveyance plan should not carry such status when relied upon by a claimant seeking to establish the extent of his land. Rather, its status might be argued as being that of 'extrinsic evidence' to which the court is not required to be as deferential in determining a claimant's boundaries.

The remaining parts of the decision in Huntley focused on the application of the doctrine of adverse possession to the facts of the case. Although the judgment adds to the mass of boundary dispute cases in which adverse possession plays a significant role, it does not develop the well-established parameters of that doctrine. The main impact of the decision is to remind practitioners not to overly rely upon title documents in a boundary dispute case. The case of Huntley was ultimately determined by exhaustive argument and detailed findings on physical boundary features and the witness evidence of characters who first occupied the properties in the 1930s. Any claimant who overly relies upon or becomes fixated with a boundary shown only on a plan ignores the peril that a court will strive to identify where, in fact, a physical boundary existed prior to a dispute and to fix a party's entitlement as being that boundary where possible (whether by adverse possession, rectification of title deeds, or otherwise).

Intense emotions

The public interest in the outcome of Huntley was quickly replaced by press coverage in the case of Milica Markos v Alan Goodfellow, summarised in one headline as: 'Widow, 79, to lose her home after WINNING fence dispute with neighbour over just three inches of land.' Again, a principal fascination in the newspaper coverage and public comment concerned the level of costs involved and that the winning party had to pay the losing party's costs.

Courts and lawyers cannot ignore public outcry over costs arising from boundary disputes, but there is a tension in the positions advanced by the press and public where they endorse the right to defend every inch of property yet record a disdain for the costs involved in that exercise.

The solution to this conflict has been attempted in numerous ways in different jurisdictions. In 1998, the Law Reform Committee for the Parliament of Victoria, Australia, reviewed the issue. Its report began by noting a feature well known to property practitioners that 'at the outset, the committee did not fully appreciate the intensity of the feelings and emotions that emanate from fencing and neighbour disputes', and concluded by recommending a new Act to include the transfer of such disputes to a tribunal where costs issues would be removed. In France, if a neighbour is unwilling to agree a boundary it is possible to apply to a tribunal d'instance (county court) for the boundary to be fixed under its supervision, in a process called bornage judiciaire. The new boundary line is indicated by a boundary marker placed in the ground by a court-appointed géomètre (land surveyor).

However, in any process where persuasive argument can be deployed (whether in front of a court, tribunal or expert surveyor) the subjective allure of land can still cause parties to throw caution and cash to the wind in fighting over a few square inches. Perhaps, therefore, the current approach of the English courts addresses the dilemma in a more subtle manner. The growing tendency is to refuse the discretionary remedy of an injunction requiring a physical boundary to be moved a few inches, where that relocation would be inconsequential to the claiming party's enjoyment of their land, albeit that as a matter of law the claiming party may be found legal owner of the disputed land.

Adopting that stance, the courts are rightly imposing a neighbourly 'give and take' mindset. It is too often the case that the parties to a boundary dispute are not concerned as to where their legal boundary in fact lies, but rather are troubled by the practical use to which they can put their land. A prudent approach to resolving boundary disputes concerning 'inches' is, where possible, to establish in the first instance what needs both parties in reality have over that land. It will likely thereafter be easier for the parties to agree at law where the boundary rests if those rights are nevertheless permitted to continue (e.g. by a form of personal licence, grant of easement '“ e.g. right of way or oversailing, etc.). A party that fails to heed such an approach in an 'inches' boundary disputes is increasingly at risk of a pyrrhic victory and/or an adverse costs order.