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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Yeates & Anor v Line & Anor  EWHC 3085 (Ch) (12 November 2012)
Cite as:  Ch 363,  EWHC 3085 (Ch),  2 WLR 844,  1 P &CR 22,  2 All ER 84,  47 EG 126,  WLR(D) 319,  1 CH 363,  1 Ch 363
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B e f o r e :
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
| (1) DEREK JAMES YEATES
(2) TERESA ANN YEATES
|- and -
|(1) DENISE JANE LINE
(2) BRETT ELLIOT FIELD
The Respondents appeared in person
Hearing date: 9th October 2012
Crown Copyright ©
Mr Kevin Prosser QC:
C. New point
D. Interpretation of section 2(1)
"If the two boundaries [that is, the agreed boundary and the boundary on the conveyance] had not coincided, because, for example, the true construction of the conveyance yields a different boundary, then the agreement would have been an agreement whereby in fact it is agreed that land belonging to one should thenceforward belong to the other. Nevertheless, even in these circumstances, I should not hold that the agreement was registrable: for, in my judgment, it is not a "contract to convey" within [the 1925 Act]. A contract merely to demarcate and confirm is not a contract to convey. No doubt the parties cannot go back on this agreement, and each in time will acquire a title by limitation to the land of the other which falls on his side of the agreed boundary. Even if each were to be entitled to demand a conveyance of that land from the other, I doubt whether the agreement would be registrable: for although the obligation to convey would no doubt arise out of their agreement to demarcate, the contract was merely a contract to demarcate and not a contract to convey.
I must, too, bear in mind that a boundary agreement is, in its nature, an act of peace, quieting strife and averting litigation, and so is to be favoured in the law. I also bear in mind that boundary agreements are of the most informal nature, and that the penalty of failure to register an estate contract is that the agreement will be void against a purchaser. These more general conditions, I think, support me in the view that I have expressed. In my judgment, no boundary agreement should be held to be registrable unless it can be seen with reasonable clarity to be an agreement to convey."
"31. We are informed that there is as yet no reported authority on the question whether section 2(1) of the 1989 Act applies to a boundary agreement which "demarcates" the boundary rather than conveys land for the purposes of the classification of boundary agreements enunciated by Megarry J in Neilson v Poole. Megarry J's approach to the words "contract to convey" in section 10(1) of the Land Charges Act 1925 was essentially that, for a contract to be a contract to do something, the parties had to have as one of their purposes the intention to do that thing. Similar reasoning in my judgment applies to the words "contract for the sale or other disposition of an interest in land" in section 2 of the 1989 Act. As a matter of ordinary English usage, for a contract to be one "for" selling or disposing of land, it must have been part of the parties' purposes, or the purposes to be attributed to them, in entering into such a contract, that the contract should achieve a sale or other disposition of land. The fact that the effect of their contract is that land or an interest in land is actually conveyed, when that effect was neither foreseen nor intended nor was it something which ought to have been foreseen or intended, is not the acid test. Indeed, it would be a surprising result if section 2 applied merely because the effect of the contract was that an interest in land was transferred even if the parties had no intention to make any such transfer and could not have foreseen or intended that that would be the effect."
"32. Even so, the area of land disposed of by both parties was of a very small amount. It would be unrealistic to require the parties to execute a transfer of the land given up by Mr Rigolli (still less of that unconsciously given up by Mrs Joyce). In both cases the land would also be quite difficult to define without the disproportionate expense of a survey. Further, to make the validity of a boundary agreement dependent on the preparation and execution of a written contract would be contrary to the important public policy in upholding boundary agreements so powerfully identified by Megarry J in Neilson v Poole. In those circumstances, I do not consider that Parliament, which after all enacted section 2 against the background of Neilson v Poole, could have intended section 2 to apply to transfers of land pursuant to boundary agreements of Megarry J's latter type ("demarcating agreements") simply because a trivial transfer or transfers of land were consciously involved."
"43. In my judgment, the reasoning of Megarry J in regard to section 2(4)(iv) of the 1972 Act applies equally to section 2(1) of the 1989 Act. A demarcation agreement as described by him is no more a "contract for the disposition of an interest in land" than it is a "contract to convey land".
44. The boundary agreement found to have been made in the present case was in the classical mould of Megarry J's demarcation agreement, subject possibly to these points: first, a very small part of the land in Mrs Joyce's paper title had been taken by Mr Rigolli; second, Mr Rigolli had given up a small triangle of land beside the cherry tree. These discrepancies did not trouble [the trial judge]. He evidently thought that the case was nevertheless covered by Neilson v Poole.
45. I agree with the judge. There are two ways of looking at it. Either the agreement was one "whereby in fact it was agreed that land belonging to one should thenceforward belong to the other" within [the passage from Megarry J's judgment quoted at paragraph 23 above] or the de minimis principle applies. Either way the agreement was outside section 2(1) of the 1989 Act".
"21. The judge's reference to triviality is to the decision in Joyce v Rigolli. In that case, building on the decision of Megarry J in Neilson v Poole, this court held that, where an agreement is made merely to demarcate a boundary, it is not a contract for the sale or other disposition of an interest in land for the purposes of section 2 of the 1989 Act, simply because a trivial transfer or transfers of land were consciously involved…
22. [Counsel for the claimant] argues that the present case does not fall within this principle at all because there was never any boundary dispute as such. The Marvin plan showed precisely where the boundary was originally intended to be and how it was to be altered. The agreed alteration involved transfers both ways at a price to be agreed or determined and therefore fell fairly and squarely within section 2. I cannot accept this argument, because it looks at the matter with the benefit of hindsight. Rule 278 of the Land Registry Rules applied to the boundaries shown on the file plan so that it was "deemed to indicate the general boundaries only" and "the exact line was left undetermined". This was the position at the time when the agreement relied on by the defendant was made. The Marvin plan came later. This was therefore a boundary agreement to which the principles in Joyce v Rigolli applied and the judge was right to find as a fact, which he did, that it was such an agreement."