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First appeared in Informer: Real Estate Newsletter - Spring/Summer 2014
T-marks are frequently seen on conveyancing plans. It is relatively well known that if T-marks are within your land that you are usually responsible for the repair of those boundaries. However, does it also mean (or at least indicate) that you therefore own that boundary feature as well? Some would be forgiven for thinking that it might, but the Court of Appeal have recently confirmed in the case of Lanfear v Chandler [2013], that it does not.
Facts
Transfers of various properties within an estate contained covenants that the buyer would maintain the relevant fence/s marked with a T Mark (as is common practice).
However, the owner of land on which the T marks were inserted on the transfer plan argued that this also meant that the relevant boundary fence belonged to her. Conversely, her neighbours argued that because the fence posts (along the boundary) were on their side of the fence they owned it (and it is common practice to position the fence posts on the land of the party who owns a fence).
Ordinarily it is hoped that the transfer documentation (the wording of the transfer and accompanying plan) should be sufficiently clear to provide a definitive answer. It is only if these are insufficiently clear that extrinsic evidence (including the position on the ground) should be considered.
Unfortunately, in this case, the transfer plan was not clear. It was not to scale and did not accurately reflect what the developer had built on the ground. Extrinsic evidence was therefore introduced and this showed that, when developing the land, the developer used concrete edging stones to mark various boundaries (including the relevant boundary in question). The developer had built the fence on the neighbours' side of the stones.
The Court of Appeal concluded, in all the circumstances and notwithstanding the location of the T Marks on the Transfer Plan, that the neighbours owned and were responsible for the area of fence in question.
The Court reinforced that the T Marks had been inserted on the plan to signify repairing obligations only (and not ownership of the fence). A repairing obligation is not inconsistent with another party owning a boundary structure. In this case, the Court attached more weight to the location of the fence posts on the neighbours' land and the fence being built on the neighbours' side of the concrete edging stones.
The case therefore confirms that whilst it might be common for the party who owns a boundary structure to be also responsible for its repair, there is no presumption in law that the two always go hand in hand.
It also therefore demonstrates the need to clearly specify who owns a boundary structures at the point that land is divided. Finally, wherever possible, plans annexed to transfer documentation should reflect any changes that have occurred to buildings and boundaries on the ground.
Matthew Dunbar, Associate, Industrial Property Group