Clash between plan referred to in transfer and newly erected fence: where was the true boundary?

When interpreting the parcels clause the search is for the parties’ objective intention. The conclusion that would be reached by a competent person visiting the site with a copy of the transfer plan would be a useful guide to this intention. The behaviour of the parties in the months following the transfer is not a reliable guide to the objective intention. Faced with a proprietary estoppel claim, the court should look at the case in the round to see whether it would be unconscionable to allow the landowner to insist on strict legal rights. The scale and duration of the detriment suffered, and their relation to the value of the interest being claimed, are relevant considerations.

In Beale v Harvey ([2003] EWCA Civ. 1883, CA (Eng)) H bought one of three plots on a small residential development. B later bought a neighbouring plot. The developer had erected a fence in a position thought to reflect the boundary between the two plots. Following exchange of contracts for her purchase, Mrs H (with the developer’s knowledge and approval) landscaped the boundary indicated by the fence. B realised (at least after completing the purchase, perhaps before then) that the plan used in the transfers to him and H were consistent with each other but inconsistent with the position of the fence. Which reflected the parties’ objective intentions, the plans or the fence?

The English Court of Appeal decided that, on the facts of this case, priority should be given to the plan. It was referred to in the deeds and was the dominant description, the truer guide to the parties’ objective intentions. When interpreting the parcels clause the search is for the parties’ objective intention. The conclusion that would be reached by a competent person visiting the site with a copy of the transfer plan would be a useful guide to this intention. The behaviour of the parties in the months following the transfer is not a reliable guide to the objective intention.

H argued that, in any event, she could claim the ‘extra’ land (the difference between the land shown as hers on the plan and the extra land extending to the fence) on the basis of proprietary estoppel. This failed too: she could easily change the landscaping that she had carried out and it had been in place for a short time before B complained. The gain to her would be proportionately much larger than the loss to B.  Faced with a proprietary estoppel claim, the court should look at the case in the round to see whether it would be unconscionable to allow the landowner to insist on strict legal rights. The scale and duration of the detriment suffered, and their relation to the value of the interest being claimed, are relevant considerations.

The Court of Appeal rejected B’s argument that H could not raise the proprietary estoppel point because her defence had not specified the type of estoppel in question. This is not necessary. It is enough, in England, to say which allegations in the statement of claim are being denied and to give reasons for the denial.

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