The days when solicitors spent hours poring over plans drawn on ancient conveyances are long gone. Articled clerks (as they were then called) spent days tracing land ownership through successive generations. The carefree draftsperson cobbled together a parcels clause, or adopted unquestioningly a re-photocopied plan thereby doubling the width of the red line and masking the true boundary.

The recent case of Huntley and another v Armes [2010] EWCA Civ 396 is a salutary reminder of the potential consequences of unclear or inaccurate transfer descriptions; 75 years later the chickens came home to roost. The 129-page reserved judgment of the circuit judge after a week’s trial is testament to his industry and the scope of the evidence. To a district judge and sometime ‘generalist’ solicitor the problem is not unfamiliar. Clients cannot easily walk away from a neighbour boundary dispute. It remains to explain on a future sale. If parties dig in, the costs are enormous and the personal tensions life-changing.

The salient facts of HuntleyThe appeal report is best understood by devotees of Google Maps through the aerial view, and locating the road kink mentioned in paragraph 17 of the report. The Huntleys lived at 38 Simmil Road in Claygate; Mr Armes lived next door at 39. The estate was laid out in 1935. Each house was semi-detached with its own (innocent) neighbour. Unlike many suburban estates there were neither garages in the back gardens, nor cross-rights reserved over the land lying between the two houses to facilitate any ‘joint’ driveway. At the time of the estate development the builder had fenced the plots with a post and wire demarcation. This had inevitably been replaced by other structures over the generations.

In the 1960s, Mr Armes’ predecessor had constructed a single garage in his back garden, and removed that portion of fence between it and Simmil Road. Both owners constructed hard standings beside their houses. There was then, it seems, a degree of give and take between both neighbours. Now, however, Mr Armes wished to fence his boundary forward of the garage. The issue for the trial judge was where the boundary between 38 and 39 lay.

The respective titles being registered, the filed plan does not identify the exact boundary (the ‘general boundaries’ rule, see Lee v Barrey [1957] 1 All ER 191). The one surviving original conveyance described 39 as having a frontage of 27½ feet to Simmil Road and coloured pink on the plan. The plan showed that same measurement for the rear boundary, and a ‘T’ mark within the eastern boundary (the boundary with the Huntleys’ property). Joint experts agreed that the straight line lateral boundary plotted from the common dividing wall of 39 and 40 produced an undisputed point on the frontage to Simmil Road. However, whereas the Huntleys contended that their neighbour’s land was broadly rectangular, defined on the common boundary by ‘the red line’, Mr Armes contended that his rear boundary was about five feet longer, from which point the side boundary followed the ‘green line’, to the undisputed road frontage. The red and green lines, together with the rear boundary delineated broadly a thin disputed triangle of land 104-feet long and five-feet wide at its maximum. This included a sliver of Mr Armes’ garage, but the Huntleys did not seek its removal. The reason for ‘this unfortunate and no doubt very expensive’ litigation was that, there being no room for the Huntleys to have a driveway into their back garden, (neither red nor green line being far enough away from their house side wall), they gained vehicular access to front garden off-road parking. The construction of their own porch inhibited vehicles manoeuvring if they could not drive right up to the red line. The difference between the two lines, at the key point, was 14 inches (35 centimetres).

To secure these 14 inches, the court received photographic and surveying evidence. Lay witness evidence ranged over 70 years of shed, garage and driveway construction, car usage (because the Huntleys’ predecessor could squeeze a Heinkel bubble car beside his house), moving posts and fence panels, and the (inevitable) more contentious recent wrangling as positions polarised. The judge found on the evidence for Mr Armes. The legal boundary was the green line representing the 1935 fence line, albeit replaced from time to time with (marginal) differences. The T mark proved that the post and wire fence was within 39, and that Mr Armes had constructed his garage to align its eastern flank wall with that line. Having so found, the judge failed to rule on Mr Armes’ alternative case of a title by adverse possession to the disputed triangle. The Huntleys appealed.

The Court of Appeal spent less than three days disposing of the appeal. The leading judgment only runs to 99 paragraphs. There was significant criticism of the judgment of the court below. At times the judge had seemingly lost himself in the myriad of detail. But for all that, he had seen and heard the witnesses and was best placed to form a view as to the truth of their evidence. From the mass of evidence, Lord Justice Rimer stood back. There was no basis for the green line being the boundary identified by the 1935 conveyance. On an ordinary interpretation of the parcels clause, the builder on the sale of 39 conveyed a piece of land with front and rear boundaries each of 27½ feet. In all probability the original fence would have followed an approximately straight line. The judge was probably correct to find that the flank wall of the garage followed the line of the original fence. But, on the evidence before the trial judge, there was clear adverse possession of the land in the disputed triangle from 1935 to at least 1950, thereby then extinguishing the title of the Huntley’s predecessor to the triangle. Accordingly, on that basis the appeal failed.

Lessons to be drawnWhat can we learn from Huntley? Without, of course, being privy to the advice given to these parties, which, moreover, may or may not have been taken, there are nonetheless the following general points to make. Care in drafting and with plans at estate-development stage is crucial. Purchaser clients must check that any plan corresponds with what is on the ground. Pre-registration deeds can still help to determine or interpret actual boundaries, albeit mortgage lenders may not want to store them. Clients must be made aware of the consequences of litigating over boundaries. Nothing in litigation is certain, save the inexorable rise in costs. Regularly take stock and look at the bigger picture. Keep it as simple as possible. Ensure that the judge is invited to rule on any alternative case. Here, adverse possession ending more than 50 years ago rendered much later history irrelevant. The longer litigation of this type continues, the more entrenched can be the position of each party and the more emotive their reactions. The solicitor’s duty is to provide a balanced perspective to those clients for whom 14 inches means a lot.

District Judge Peter Jolly sits at Portsmouth Combined Court