PUBLISHED 17.03.14
Property owners are always interested in where the precise position of their boundary is.

However, there has been some recent case law that again confirms that “T” marks on a plan are not necessarily indicative of boundary ownership.
Case – Lanfear v Chandler 20 November 2013. The dispute was the road as to the ownership of a boundary feature and the court had to consider the issue taking into consideration the documentation and the position on the ground.
The facts:

• The Lanfears owned number 3 and Mrs Chandler owned number 5. A plan in the documentation for consideration showed the boundary line with “T” marks on the number 5 side together with an obligation to number 5’s owner to repair a fence that existed at that time on the boundary. The neighbours were in dispute over a thin strip of earth on that boundary. Mrs Chandler had erected a carport, the supports of which were on the strip. The question for the Judge was: to whom did the strip belong?

• The consequences for Mrs Chandler were significant, for if the strip of land did not belong to her, this would be a trespass and the carport would have to be removed. The first Judge decided the strip belonged to number 3 and the Judge considered any inferences drawn from the use of “T” marks on the plan were countered by the position on the ground. Mrs Chandler appealed that decision on the basis that the Judge was wrong to regard the transfer as inconclusive on the boundary issue, and also that there was nothing contradicting the clear direction of the transfer that the fence that was then on the strip was the responsibility of number 5 and therefore that strip must belong to number 5.

• The Court of Appeal agreed with the first Judge. The Court of Appeal said a lack of clarity in the transfer plan or description can be resolved by reference to extrinsic evidence which is part of the process of construing the transfer. The Court considered the matter on the facts before them at the time and will weigh a balance between the transfer’s effect and the site features at the time of the dispute.

• The common practice of using “T” marks to identify the ownership of a wall or fence marking the boundaries are a relevant factor when considering transfer documents. This has to be considered with other relevant terms of the transfer and features of the plan and, where appropriate, evidence of the position on the ground. All these factors are relevant for consideration but none are necessarily conclusive. The use of “T” marks does not raise a presumption of law that the boundary feature belongs to the adjoining owner indicated by the use of the mark.

• The Court’s view was that the plan was an inaccurate representation of the position on the ground. The fence was in fact erected with the post on the number 3 side of the fence and facing number 3. As a matter of convention this was an indication that number 3’s owners were intended to own the fence and be responsible for maintaining it. The ambiguity between the position on site and the transfer required to be resolved by reference to the position on the ground as it would appear to the reasonable lay person when the house was first sold. The Court decided those first purchasers would be much more likely to conclude that the fence (and therefore the strip), belonged to number 3 so Mrs Chandler had committed a trespass and she was ordered to remove the carport.