Registered Title
Cases
AIB & The Registration of Title Act
Neutral Citation: [2006] IEHC 463
Reported In: [2006] 10 JIC 2006
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr. Justice Henry Abbott
THE REFERENCE
The questions referred by the Registrar of Titles pursuant to s. 19(2) of the 1964 Act are as follows:
1. The Registrar has brought the matter before the court pursuant to section 19(2) of the Registration of Title Act, 1964 (‘the 1964 Act’) seeking the Court’s assistance in relation to the following questions:-
(a) is the ownership of a fluctuating share in property (in this case a charge) an interest which may be registered on a Register maintained under the Registration of Title Act, 1964?;
(b) does the description of the nature of such a share satisfy the requirement in Rule 48 that the Registrar ascertain the share of each tenant in common owner?;
(c) would the description of the nature of such a share in the Register comply with the requirement of Rule 48 and. section 91(1) of the 1964 Act that the Registrar enter in the Register the share of each tenant in common?;
(d) is it the case that the nature of the interest created by the mortgage (i.e. where they are subject to variation or fluctuation) is such that they are not capable of being registered on the Register maintained under the 1964 Act?
I set out the written submissions of the parties as follows:
THE REFERENCE
Written submissions of counsel for the banks
1
‘1. The transaction between the Borrower and the Banks is a simple and time honoured transaction, namely the provision of a mortgage, being an interest in land as security for an advance of monies. It cannot be questioned that the form of mortgage does operate to create the mortgage or charge the lands, it cannot be questioned but that the owner of land has, and is indeed guaranteed under Article of the Constitution, the entitlement to deal with land as he or she shall see fit. There is no principle in law which limits the nature of interests which can be created in land, or which provides that any new or novel interest cannot be recognised.
2
There can be no dispute that the intention of the new Allied Irish Banks single form mortgage is that the lenders will hold their respective interests as tenants in common and not as joint tenants. That is clear from the terms of the single form mortgage itself. It is accepted that the shares held by each of the Banks in the mortgaged property may potentially vary over the lifetime of the mortgage deed. This will be so if, for example, further advances are made by any of the Banks to the mortgagor subsequent to the date of creation of the mortgage. It has always been the Banks’ case that there is no principle of law which prevents a tenancy in common operating merely because the respective legal interests of the tenants in common may fluctuate from time to time. In this context, it is clear that ownership of land, whether legal or equitable, is capable of arising in a myriad of different forms and situations. While the concept of a joint tenancy is subject to very strict requirements, a tenancy in common is a very elastic concept. A joint tenancy will not exist in the absence of the so-called ‘ four amities’. Unless each of those unities are shown to exist, a joint tenancy will not arise. In contrast, in the case of a tenancy in common, such a tenancy will arise if only one of those four unities exist – namely the ‘ unity of possession’. The existence of the unity of possession is not questioned in the present case.
3
The elasticity of the concept of a tenancy in common is reinforced by the fact that, for example, one tenant in common may only have a life interest in the property while another may have an interest in fee simple, and there may be another with solely an interest in remainder. All of these interests can live together in one tenancy in common. Similarly, one tenant in common may be entitled to 1/80th of the freehold while the other might be entitled to 79/80th’s in other cases, there may be 80 (or more) tenants in common all of whom own different shares in the property; each of the tenants in common may not even hold shares of identical sizes. One may own 1 acre; another 30 acres; another 300 acres; and there may be 77 of them who hold half an acre each. Alternatively, each of the 77 may hold shares of unequal sizes. There are almost an infinite number of different variations and combinations which may exist. I-r is submitted that the fact shat a tenancy in common may exist with such a Wide extent of different interests subsisting together underscores the elasticity of the concept of a tenancy in common.
4
The only other requirement (i.e. other than the ‘unit}, of possession than must exist before a tenancy in common can arise is that each tenant must hold an undivided but distinct or specified share. In the present case, it is submitted that the Banks will clearly each hold an undivided share in the mortgaged property. Moreover, it is submitted that each of them will also hold a distinct or specified share. In this context, the fact that their respective shares may vary as between themselves from time to time does not mean that they are not ‘distinct or specified’. It is submitted that each of their respective shares can be ascertained, and that being so, they will be sufficiently ‘specified’ or ‘distinct’. In this context, there does not appear to be any difference in principle between the meaning of the word -distinct’ and the meaning of the word ‘Specified’. A helpful authority on the meaning of the word ‘specified’ is to be found in the decision of Nourse J. in Re: Green’s Will Trusts [1985] 3 All ER 455. In that case, a testatrix stated, for the purposes of section 1(1) of the Perpetuities & Accumulations Act, 1964 (U.K.), the perpetuity period under her will was to be from the date of her death to 1st January, 2020. She died on 1st February, 1976. It was argued that the relevant period was not ‘specified’ since one could only arrive at the relevant period by knowing the date of death of the testatrix and making an arithmetical calculation. This argument was rejected by Nourse J. who said (at p 460):
‘Counsel for the Attorney General accepts that in order to be valid, a charitable gift, like any other, must vest it in interest within a period permissible by rule against perpetuity …
Counsel for the second to fifth defendants submits that the attempt [made in the will] was unsuccessful, on the ground that what was here specified was not a number of years but a period expiring on a particular date. …. What he said -was that a period which can only be reduced to a number of years by making a calculation is not a specified number of years. For that he relied on White v. Whitcher [1928] 1 KB 453, the once well-known authority on the meaning of ‘some specified age’ in what later- became S. 228 of the Income Tax Act, 1952. 1 find that authority to be of no assistance in the present case. There is plenty, of other authorities, including that of common sense, to the effect that ‘specified’ merely means ‘unambiguously identified’ or ‘made clear’. Speaking from Mrs. Green’s death on 1st February 1976 and looking forward to 1st January 2026, I think that the codicil unambiguously identified, or made clear, the period of 43 and 11/12 years as the perpetuity period for the purposes of the trusts of residue. In any judgment, that was a specified number of years within section 1(1) of the 1964 Act’.
5
There is a very clear parallel between that case and the present case in that there, the relevant specified period could not be identified unless one knew the date of death of the testatrix and then made a calculation (according to the formula set out in her will). The parallel with the present case is that here, one needs to know the amounts due to the lenders before one can make a calculation in accordance with the formula supplied to the land Registry by the Bank. Under that formula, one can always ascertain what is the respective shares of the individual Banks in the mortgaged property. Once one knows how much is owed to the lenders, one can make that calculation (in the same way as one could make the calculation in the Green case once one knew the date of death), and therefore the relevant shares are, in fact, stated for the purposes of Rule 67.
6
Having regard to the meaning of the word ‘specified’ as explained by Nourse J. in the Re: Green’s Will Trust case, it is submitted that the shares of the Banks in the present case are clearly ‘specified’ and, therefore, there is no reason why a tenancy in common should not be said to subsist between them. Accordingly, in circumstances where there is a unity of possession between the Banks, the relevant requirements for the existence of a tenancy in common are satisfied. Furthermore, that is entirely consistent with the intention of all parties to the Mortgage Deed. It is clear from the terms of the Mortgaged Deed that all parties envisage that the Banks would hold their respective shares as tenants in common.
7
It is also submitted that there is no policy reason why a tenancy in common should not be said to subsist between the Banks. For the reasons already explained in paragraph 4 above, the arrangement proposed in the present case is clearly in the interests of all of the parties to the Mortgage Deed. The arrangement does not in any way undermine the rationale underlying the 1964 Act. Nor does it cause difficulty or damage for any person. On the contrary, in circumstances where the 1964 fact does not recognise equitable interests, the arrangement proposed is the only means by which those inspecting the Register can be informed of the true situation that there are, in fact, a number of parties whose interests are secured by the mortgage deed.
8
The essential purpose behind any system of Registration of Title is to record the ownership of property, and these are main reasons for same:
(a). To save individuals the trouble and expense of investigating the history of a title, see Gibbs v. Messer [1891] AC 248, Mulhern v. Mulhern [1931] IR 700,
(b). The prevention of fraud;
(c) Simplification of the transfer process with the consequent savings for a purchaser. The Memorandum to the Registration of Title Bill, which subsequently became the Registration of Title Act 1891 stated the intentions of same as follows:
‘To provide a simple, inexpensive and easily accessible Land Registry, for all occupiers of land in Ireland……….. and to substitute for the Record of Title an approved system of registration which may be made use of by any landowner who preferred the system of Registration of Title to that of Registration of Assurance carried out in the Registry of Deeds.’
9
A conclusion that the 1964 Act does not permit the Banks to proceed in, his way would seriously limit the flexibility of the Land Registry and fly in the face of its expressed purpose. As mentioned previously, there is a clear commercial rationale for the creation of the single mortgage. It is in the Interests of both banks and consumers. If all interested parties have agreed to execute a mortgage in these terms, and, if no one is damaged by the registration of a mortgage in these terms, a conclusion that the 1964 Act did not permit the registration of this charge would expos, a very serious lacuna in the Act. What would happen in a case where the mortgage has already been created and acted upon in relation to unregistered land in a county which subsequently becomes subject to compulsory registration? How would the Land Registry deal with the mortgage in those circumstances?
10
It is respectfully submitted on behalf of the Banks that there is nothing in the 1964 Act or the Rules made thereunder which should cause a difficulty for the proposed registration. In this context, section 91(l) of the 1964 Act simply provides that:
‘The owner of any one or more undivided shares in any land or charge may be registered with the addition of the prescribed entries in the Register for the purposes of showing the share which he holds in the land or charge’.
This is clearly an express recognition that land may be held in undivided shares by more than one person.
In the present case, each of the Banks are clearly the owners of undivided shares in the land. For the reasons already advanced, they are tenants in common. Section 91(1) says that the respective shares of the owners should be ‘shown’ by means of prescribed entries in the Register. For the reasons given below, it is submitted that the relevant rules prescribing the particulars to be provided will be satisfied in the present case.
11
Rule 48 is simply the basis upon which tenants in common are registered and it is submitted that its provisions will clearly be satisfied in the present case by the provision of the formula to the Registrar. By providing the formula to the Red stray. he will be it a position to “ascertain’ that the respective interests the Banks as tenants in common are to be calculated by reference to a formula, and he will be in a position to stake an entry to that effect in the Register. In principle, it is submitted that there is no difference in substance between what is proposed here and what would occur where, for example, land is registered in the joint names of 80 different tenants in common and the Registrar notes the respective shares held by each of those persons.
12
In the course of the dealings between the Banks and the Land Registry in relation to the single form mortgage, the Land Registry also raised an issue in relation to Rule 67. That rule provides as follows:
‘An application for registration as owner by a person claiming as tenant in common of an undivided share in property shall state the share to which he is entitled, where the share does not appear from the instrument lodged. 7-he entry in the Register shall be that the applicant is full owner or limited owner, as the case may be, of a specified undivided share of the property’.
13
In this context, attention has already been drawn to the meaning of the word ‘specified’ as explained by Nourse J. in the Green’s Will Trusts case. Essentially, the word ‘specified’ means nothing more than capable of being ascertained. It is submitted that the word ‘state’ in Rule 67 has a similar meaning. The word ‘state’ and the word ‘specified’ are interchangeable. In the circumstances, having regard to the explanation of the word ‘specified’ given by Nourse J., it is submitted that the application to the present case does; in fact, state the share to which each of the Banks is entitled as tenants in common. It does so by reference to the formula from which the respective shares of the Banks can be ascertained. In the circumstances, it is submitted that the respective shares will be ‘stated’ for the purposes of Rule 67 by reference to the formula which the Banks have already supplied to the. Land Registry. It is therefore submitted that the provisions of Rule 67 will be complied with.
Conclusion of the Board’s Submissions
14
Having regard to the reasons outlined in paragraphs 7 to 16 above, it is submitted that the answers to the questions raised by the Registrar pursuant to section 19(2) of the 1964 Act are as follows:
(a) the Banks are clearly owners of undivided shares in the charge created by the deed of mortgage and therefore their ownership of that charge may be registered pursuant to section 91(1) of the 1964 Act;
(b) insofar as Rule 48 is concerned, it is submitted that, for the reasons given in paragraph 14 above, its provisions will clearly be satisfied in the present case by the provision of the formula to the Registrar. By providing that formula to the Registrar, he will be in a position to ascertain the respective interests of the Banks as tenants in common, and he will be in a position to make an entry to that effect in the Register;
(c) for the same reason, it is submitted that the description of the nature of the share in the Register will comply with the requirement both in Rule 48 and section 91(1) that the Registrar enter in the Register the share of each tenant in common;
(d) it is submitted that the fact that the shares of the Banks may potentially vary does not have the effect that they are incapable of being registered under the 1964 Act. For the reasons already given, it is submitted that the mortgage deed clearly creates a tenancy in common in that there is a unity of possession between the Banks and, in addition, each of the Banks holds a specified share. Those are the only criteria that must be satisfied before a tenancy in common can be said to exist. In those circumstances, it is submitted that there is no reason why the registration cannot be effected. For the reasons given in paragraph 13 above, the provisions of section 91(1) of the 1964 Act are satisfied. For the reasons given in paragraph 14 above, the requirements of Rule 4′ are satisfied. In addition, for the reasons given in paragraphs 15-16 above, the requirements of Rule 67 are satisfied. Given that the 1964 Act was intended to facilitate the registration of land rather than the converse, it would defeat the purpose of the 1964 Act if a tenancy in co=or, of this l
Written submissions of counsel for the Registrar of Titles
The written submissions of counsel for the Registrar of Titles were as follows:
Written submissions of counsel for the Registrar of Titles
1
Object of the title registration system
1.1
The substance of the reference must, it is submitted, be considered in the context of the object and function of the title registration system. The object of the registration of the ownership of legal interests in registers maintained by the state in perpetuity is the protection of “purchasers”. The function of the registers is to provide “purchasers” of registered property with the means of ascertaining with certainty the ownership of the property and the burdens affecting the ownership and to protect him/her against any other claims to the property except those burdens which affect without registration.
1.2
Since 1891 the system has provided a simple, clear, and secure system of title registration. Major beneficiaries of the system are lenders and financial institutions who avail of the certainty afforded by the conclusive state guaranteed registers and can proceed to safely advance monies on foot of same.
1.3
Ambiguity or uncertainty in relation to the title registration matters is clearly not in the interests of “purchasers”.
1.4
The law of property applies in the usual way to registered land with two main modifications as follows:
(i) There can be no equitable interest, in registered land – the registers are registers of legal interests in land;
(ii) An ownership created by a deed vests not on the delivery of the deed (as it would if the property was unregistered) but on the entry of its ownership on the register.
1.5
The basic principles of precision and certainty for “purchasers” is reflected throughout the Land Registration Rules 1972.
Rule 4(2) provides that every entry shall be clearly expressed and shall state with precision the particular property or interest that it is intended to affect and no entry shall refer to matters that are not the subject of registration under the Act;
Rule 53 provides inter alia that an application or instrument which does not indicate with sufficient precision the particular interest or land which it is intended to affect …. or is otherwise expressed in a manner inconsistent with the principles upon which the register is to be kept may be refused;
Rule 64 (1) of the Land Registration Rules 1972 inter alia provides that where it appears to the Registrar that an application or instrument is not expressed so as to indicate with sufficient precision the property or part of the property in the register to which it relates or the ownership, burden or notice to be entered in the register, he may refuse to make any registration.
2
Relevant rules and statutory provisions
2.1
Rule 2 of the 1972 Rules provides that “property” includes land the ownership of which is or may be registered in the registers established by the Act and Rules 3(4)(b)(i) & 224(ii) provide that the ownership of a charge may be so registered.
2.2
The Act of 1964 prescribes the entries that can be made on the register and no other entry other than an authorised entry may be so entered (Rule 4(2) of the Land Registration Rules 1972 refers).
2.3
Section 62 of the Registration of Title Act 1964 provides the mechanism of the creation of a charge and section 62(2) provides that until the owner of the charge is registered as such the charge will not confer on the owner of the same any interest in the property. Section 62(6) provides that once the owner is so registered then the instrument of charge will operate as a mortgage deed within the meaning of the Conveyancing Acts and the owner will have all the statutory and other rights of a mortgagee.
2.4
Section 64 of the Registration of Title Act 1964 and Rule 113 of the Land Registration Rules 1972 provides for the transfer of registered charges.
2.5
Section 91 (1)of the Registration of Title Act 1964 provided that the owner of any one or more undivided interests in any land or charge may be registered with the addition of the prescribed entries in the, register for the purpose of showing the share which he holds in the land or charge.
2.6
Rule 48 of the Land Registration Rules 1972 (registration of tenants in common on first registration) provides that where it appears that two or more tenants in common are found entitled their shares must be ascertained by the Registrar and entered in the register.
2.7
Rule 67 (Registration of a tenant in common) provides that an application for registration as owner by a person claiming as tenant in common of an undivided share in property shall state the share to which he is entitled, where the share does not appear from the instrument lodged. The entry in the register shall be that the applicant is full owner or limited owner, as the case may be, of a specified undivided share of the property.
The subsidiary register
2.8
Section 8 (b) (ii) of the Registration of Title Act 1964 provides for the maintenance of a register of owner of such other rights as may be prescribed and Rule 224 of the Land Registration Rules 1972 inter alia prescribes pursuant to section 8 (b) (ii) that the ownership of any charge, whenever created, registered as burden in land may be entered in the register maintained under section 8.
3
The Reference to Court under Section 19(2)
3.1
The central issue before the Court is whether a fluctuating share in property (in the case of the application, a charge) is an interest which may be registered on a Register maintained under the Registration of Title Act 1964 and, if so whether the registration sought is allowable.
3.2
It is respectfully submitted that this application should be refused on a very basic principle. The Applicants seek to be registered not in respect of fixed shares in the charge but upon fluctuating charges therein by reference, to the amount owed to each of them. In our submission this cannot be done for the fundamental reason that the only basis upon which such registration could be effected would be of equitable interests and not of legal interests and, of course, equitable interests cannot be registered.
3.3
It is arguable that no difficulty would arise on the first registration of the two companies even if the exact division of the property was not specified as proportionate shares. But when that proportion happens to change there would have to be a transfer from one company to the other and that transfer, in the absence of a deed, could only take effect in equity, a deed being, of course, required by Section 3 of the Real Property Act, 1845, which provides inter alia that ‘ a feoffment made after the said 1st day of October 1845….. shall be void at law unless evidenced by deed …….
3.4
This is echoed in Rule 52 of the Land Registry rules under which a transfer must be sealed and executed by the transferor and attested by a witness as required by Rule 54 – Rule 54 does not refer to a deed except by inference but Form 19 makes it quite clear that a transfer must be signed, sealed and delivered.
3.5
It is submitted that -in. effect what the Banks propose in the present case is that an equitable transfer under a trust or contract should be recognised by the Land Registry. In our submission there is no basis for this because the registration system permits only the registration of legal interests and there cannot be legal interest where a share passes by act of law or by virtue of a contract. Of course it can be protected by a caution and in certain cases by an inhibition but that is not what is applied for in the present case.
3.6
There is, of course, no doubt that Section 91 of the Registration of Title Act recognises that a charge over registered land can be held by more that one person – but that is not what is proposed in the present case: what is proposed in the present case is that the interest in the charge should be registered and that the registration should follow the proportionate amount advanced by each of the parties from time to time.
3.7
Again Rule 67 is specific – it requires that the application for registration ‘ shall state the share’ to which the person seeking registration is entitled. This is very different from merely giving means of calculation by which the share can be ascertained and in our submission it is not sufficient that the mathematics can result in the share being ascertained – that is not a statement of the shares, particularly where one cannot ascertain the share without applying to the two mortgagees which will entail looking outside the Register (by reference to the- respective statements of account with the relevant lenders) which would be directly contrary to the entire policy of the Registration of Tile Act and the Registration of Titles.
3.8
In our submission there is no analogy between this present application and the decision of Nourse, J., in In re Greens Will Trusts [1985] 3 All E.R. 455. The reason for this is that the word ‘state’ as used in Rule 67 is far more demanding than the specification of a number of years which is what Nourse, J., was considering. The formula of words used by the testatrix in the Greens Will Trusts case could only ever give rise to one period of years dating from the death of the testatrix. It is for that reason, it is submitted that Nourse J. was able to conclude that perpetuity period in question was ‘unambiguously identified’. The formula suggested by the Banks in the present case is, by its very nature, cannot give rise to a single ‘stated’ or, even ascertainable, share of the property (charge). Rather the respective shares of the lenders will ambulatory and shifting in nature.
3.9
It is further submitted that the analogy with charges in relation to future advances on foot of an existing mortgage is inappropriate. Whereas section 75 of the 1964 Act makes specific provision for such charges that is not what is proposed in the present case and in any event there is no variability of interest on the part of the mortgagee in the case of such a charge.
3.10
Rule 67 is very specific – it requires that ‘ the entry in the Register shall be that the Applicant is full owner or limited owner, as the case may be, of a specific undivided share of the property’. Section 91 (1) of the Act of 1964 is even more specific – it provides:
‘The owner of any one or more undivided shares in any land or charge may be registered with the addition of the prescribed entries in the Register for the purpose of showing the share which he holds in the land or charge.’
3.12
The acquisition of an additional share by one tenant in common must it is submitted be a transfer to or inheritance by the tenant in common whose share is increased but in the present case it is not proposed that there be any transfer or inheritance.
4
Summary and conclusion
4.1
The Banks are, in effect, seeking to register equitable interests and not legal interests. Such equitable interests cannot be registered.
4.2
The registration is not expressed in a manger consistent with the principles upon which the register is to be kept. It breaches the basic principles of precision and certainty. Indeed, on a true analysis it introduces uncertainty and ambiguity onto the registers maintained under the 1964 Act as “purchasers” could not “ascertain” from an inspection of the register what was being purchased.
The Oral Submissions
Counsel for the banks in furthering the written submissions in oral hearing argued strongly that the requirement that in the case of a charge registered against registered land owned by an individual, the charge itself did not on the face of the register show the extent of the interest to which the owner was entitled under the charge in terms of value: it was always necessary to make enquiries within the individual or the institution entitled to the charge. The ascertainment of the share of the owner in common of a charge would similarly have to be ascertained. He argued that the respective shares of common owners of a charge may be registered, firstly on the basis of an ascertained percentage share, ascertainable on the face of the instrument and thereafter determined by way of a formula derived from the charging instrument. Counsel for the Registrar argued that even if the shares could be ascertained in this way, the end result would be shifting or ambulatory interests, varying from the share first registered or ascertained, and thereby created a situation where one part owner would be an implied trustee of the other thereby giving rise to the registration by the Registrar of equitable interests in a manner forbidden by the land registry code.
The Decision
I consider that it is helpful in examining how the arguments of the banks and on behalf of the Registrar may be analysed to set out in the first instance the differences, (if any), between shares held in common in a charge or mortgage and shares held in common in land. Shares held in common in land have been always regarded as actual shares in the land and by reason of the doctrine of unity of possession the actual land which may be attributed to these shares is not yet ascertained. A charge is an instrument whereby the actual portion of the land is made available as a security for the payment of money advanced by the person charging the land. Generally at equity at least, joint lenders took their shares in the mortgage in the proportion to which they lent their money and expected it to be paid as noted in Wiley on ‘Irish Land Law’ para. 7.20 p. 364, Wiley Irish Land Law (1st Ed). On the execution of a mortgage or charge, it is quite plain to see that the share in the charge is equal to both the money which is advanced and the money (principal and possibly interest) expected to be repaid. However this proposition changes as the payment period for the mortgage or charge continues.
In relation to what happens factually during the payment period, it is illustrative to take a simple case of four mortgagees charging land with the payment of a principal sum with or without interest over a particular period. The mortgage instrument might provide for a quarter share of each of the joint mortgagees in the mortgage on the basis that the money was advanced equally by them. No joint account clause is expressed or implied, is provided for in the mortgage in such a simple case and the mortgagor and each co-owner of the mortgage are free to deal with each other as they wish. In relation to each co-owner, the mortgagor may redeem in full or in part the money which that co-owner of the mortgage has advanced to him under the mortgage. The mortgagor may fall into arrears in respect of payments of principal and interest to another co-owner and may make payments to the other two co-owners exactly in terms of the mortgage. The result of such a payment history over time will result in some co-owners of the mortgage been owed nothing or some considerably less than others. The question has to be asked, what is the impact of the inequality of the money owed to each of the co-owners who, at the commencement of the mortgage had equal shares. The reality is that the mortgagees now have different shares in the mortgage. Such an outcome might be presented by constituting each joint mortgagee the trustee of the others either under the instrument or as in the case with English legislation, by statute whereby each of the trustees would pay any money received by way of mortgage repayment into a joint account on behalf of all the trustees. However the outcome of unequal shares by reason of unequal payments in the absence of the intervention of trust arrangements between the trustees arises in my opinion not as a matter of equity but as a matter of fact arising from the factual presumption that a person who advances money on a loan expects to have it repaid by the borrower in accordance with ordinary commercial practice.
The simple case scenario described above could relate to a loan secured by a registered charge on the Folio of registered land, with each owner registered with a quarter share at the end of the payment period a situation described. In the simple case of inequality of money owing could arise factually. If one of the charge owners had agreed to redeem the share of moneys advanced by that charge owner, the number of charge owners would then be three. On a factual basis their shares in the charge would be one third each, notwithstanding the fact that they were registered and remained registered on the folio as owners of one quarter of the charge. This new one third ownership cannot be ascertained from a perusal of the register: it must be ascertained by obtaining the payment information from the four co-owners of each share of the charge. The shares of the charge have been shifting or ambulatory over the payment period. Such change, however, has not been by reason of the intervention of equity, it arises from the factual nature of a mortgage or change. No one could argue that this outcome on the simple case scenario is not possible in the case of a co-owned charge registered against registered land or that the prohibition of registering equitable interests prohibits such an outcome.
On the other hand in the case of the co-ownership of registered land as distinct from a change the co-owner registered in respect of an undivided fraction of the land as tenant in common continues to have the right to sell such share to a purchaser for value without notice, notwithstanding that arrangements may have been made with a third party for the diminution of that interest along the lines of the diminution of the interest of a co-owner of a charge who has been paid. As long as that third party did not have the rights of a person actual possession such as might be protected without the registration of burden, the purchaser for value from the registered owner could take a? by virtue of the provisions of the Registration of Title Act 1964. The private arrangements between the registered, co-owner and the third party might involve as argued by counsel for the banks a progressive diminution of the fraction of the co-owner down to a lower level over a particular time period and thus be ascertainable. I do not accept that this process whereby the ownership could diminish could be registered by the registering authority as such progressive diminution of the share that would involve at each successive period a transfer of a share in the land which may only be affected by a duly registered deed of transfer. The right of the third party to an increasing incremental share would thus clearly be an equitable right enforceable between the registered co-owner and the third party but not permitted to be registered under the Act of 1964.
As is clear set out in the submission there is a clear requirement the Registrar of Titles would in the case of a charge, set out the share of the co-owner of a charge. I am satisfied that this requirement is quite consistent with the factual or commercial reality of the possibility of the share of co-owner of a charge changing or increasing over time, as illustrated in the simple case scenario above to allow for changing shares of the charge among co-owners, merely reflects the reality affecting a charge without such provision.
As is clear from the submissions in this case, the effects in relation to which the reference is made are more complex than the case of the simple charge relating to the simple case scenario or straightforward variations thereof. The instruments proposed to effect the charge of the two banks in this case envisage provision for future advances and differential interest rates as between the two co-owners. The additional sums owing to one co-owner over the other by reason of differential rates or future advances are to my mind no different in principle from differences arising in sums owing to co-owners by reason of the different payment record of the borrower with each co-owner as envisaged in the simple case scenario. The provisions of the rules obliging the registrar to ascertain the share of each co-owner of the security still apply, but by reason of my analysis of the simple case scenario as applied to land registry conveyancing, I consider that these shares must be capable of being ascertained and provided at the date of first registration to the registration with any formula to be used in their calculation.
The share of the registered co owner of land as distinct from a charge is a static share as shown on the register. But the share in a charge, although stated in static absolute terms on the register is in fact a variable share but which is ascertainable by ordinary conveyancing enquiries. For that reason I conclude that it is appropriate to apply the test described in the case Green Will Trust [1985] 3 All ER 455 ascertaining the share of a co owner of a charge and that this test is entirely inappropriate in relation to ascertaining and describing the share of a co owner in land.
Section 64(4)(a) of the 1964 (dealing with the title obtained by a transferee) provides that the transfer of the charge has:-
‘The same title to the charge as a registered transferee of land under this Act has to the land, under a transfer for valuable consideration or without valuable consideration as the case may be.’
This provision clearly draws the distinction between a ‘charge’ and ‘land’. The distinction between a charge and land under the Local Registration of Titles (Ireland) Act 1891 was noted by Glover on the Registration of Ownership of Land in Ireland (1933) p. 165:-
‘…The owner of a charge has no estate legal or equitable in the land; the only estate that can exist on the land is the estate of the registered owner. A charge owner is in the same position as the owner of a mere charge in unregistered land, who cannot recover possession of it from his mortgagor because his mortgage does not convey any estate to him…’
And at p. 167 saying that:
‘A person cannot be registered as “full” or “limited” owner of a charge. It is personal property; and in the death of the owner, the charge vests in his executor or administrator and for the purpose of discharging his duties as executor or administrator he is entitled to be registered as owner.’
The provisions of s. 62 of the Act of 1964 and in particular subs. 6 thereof providing that on registration of the owner of a charge the instrument of charge shall operate as a mortgage by deed within the meaning of the Conveyancing Acts and the registered owners of the charge shall for the purpose of enforcing this charge have all the rights of powers of a mortgagee under a mortgage by deed, including the power to sell the estate or interest which is subject to the charge, have removed many of the shortcomings of the charge under the 1891 Act highlighted by Glover but do not place the registered charge on the same footing as ‘land within the meaning of the Act of 1964’. The definition of land under s. 3 of the 1964 Act does not specifically include a charge. It would seem to me that a charge may not be included under the category stated in the definition as ‘land of any tenure ‘and that a charge should not be confused with land when stated in the Act but is a creature of statute only, with special properties which mirror but are not co-extensive with land’ as defined in the Act. The reference in s. 6(2)(i) to the instrument (charge) not conferring on the owner ‘any interest in land’ should not be taken as including a change in the definition of the Act of 1994.
In view of the foregoing I answer the questions in the reference by their respective paragraphs as follows.
Yes but only in the case of a charge
(a) Yes
(b) Yes
(c) No.
Abraham & Anor v Oakley Park Developments Ltd
[2019] IECA 87
Docket Number: Neutral Citation Number: [2019] IECA 87
Jurisdiction: Ireland
Court: Court of Appeal (Ireland)
Judge: Ms. Justice Costello
Case History: Confirms [2016] IEHC 790
Maps and boundaries
13
The Land Registry operates a non-conclusive boundary system. Section 85 of the Registration of Title Act, 1964 (as amended) states that ‘ the description of the land in the register or on such maps shall not be conclusive as to the boundaries or extent of the land’. This situation is neatly encapsulated by an endorsement which appears on all maps attached to folios. It states ‘the registry map identifies properties not boundaries meaning neither the description of land in a register nor its identification by reference to a registry map is conclusive as to the boundaries or extent.’
14
All of the maps employed in this case were plotted on rural OS maps scale 1:2500. The accuracy and the amount of information that can be represented on the map is primarily dependant on the scale of the map used. There was evidence that using maps to this scale is subject to a margin of error.
‘the typical achievable accuracies are of a low order, mapping discrepancies of +/- 2 metres are quite typical when checked by precise ground survey measurements’
15
Parties applying for first registration of title are required to present a map using either a land registry map or the most up to date map of the Ordnance Survey of Ireland. When Mr Osmond Brady applied to register the new folio 7602 in July 1985 the map attached was required to be based on the then most up to date available OSI map. Subsequently, commencing in 1995, the Ordnance Survey resurveyed the lands in the State using ITM coordinate reference systems. The Land Registry then digitised all of the maps based upon this resurvey of the State using the ITM coordinate reference system. The revised editions of OS maps can vary from earlier editions due to different mapping technology and practices over decades and a move from field surveying to desk top surveying based on aerial photography. This can and does give rise to discrepancies in relation to boundaries.
16
This occurred in relation to the map attached to folio 7062F. Mr. Kestell produced a map marked 1A which shows, outlined in blue, the old Land Registry record for folio 7062F and the current Property Registration Authority extent of lands for folios KE7062F and KE26791F outlined in red. The map is attached to this judgment for ease of reference. The discrepancies between the two maps are immediately apparent. The boundary of the old folio (in blue) runs approximately through the middle of the road to the south of the lands whereas the red outline (the current map attached to the folio) continues well over the meridian and nearly to the far edge of the road. This ‘movement’ of the folio effectively south eastwards has the effect of ‘moving’ the north westerly boundary in a south easterly direction. There is a significant shift of the property to the west and change in the north western boundary, though no transfer of land took place and there was no change in the position on the ground of the physical boundaries. The change was effected within the Land Registry as a result of changes in its mapping practices. Importantly, new folios with revised plans are not sent to registered owners for verification purposes. This accords with the fact that The Register is not conclusive to boundaries or extent as s.85 of the 1964 Act, as substituted by the Registration of Deeds and Titles Act 2006, s.62 and the Land Registration Rules 2012 Rule 8(2) provide.
Dispute
17
In the summer of 2013, a third party negotiated with the appellant to purchase a house being developed by the appellant whose boundary lay along the disputed land. The intending purchaser was anxious that this boundary be precisely defined. The appellant instructed Mr Holton, a land surveyor who had worked with the Ordnance Survey Ireland for twenty three years, to carry out a survey of the boundary between the two properties. He concluded that the boundary as indicated on the transfer of the 20th December 2000 was in fact slightly inside the physical boundary then marked by a timber fence and a line of trees and in fact takes in a slice of the respondents’ shed situate near the north eastern boundary. During the summer of 2013 the director of the appellant, Mr Power and the respondents met on a number of occasions to discuss their common boundary. The appellant indicated that it claimed ownership of part of the lands inside the fence and the respondents maintained that the boundary was as indicated by the line of the existing fence. At the end of August and without any notice to the respondents, the appellant acted upon its assertion that it owned the disputed lands which stood within the curtilage of the lands of the respondents. Two employees of the appellant entered upon the disputed land with sledge hammers and crow bars and started to take down that portion of the fence which the appellant alleged encroached upon the its lands. They also marked a corner of the shed with some paint. A fraught scene ensued and the Gardaí were requested by the respondents to attend. The trial judge was particularly critical of the conduct of the representatives of the appellant and what he referred to as the ‘uncivilized and unilateral approach of the [appellant] on the 29th August 2013’.
18
The dispute was not resolved by the parties or their solicitors so the respondents commenced these proceedings by a plenary summons issued on the 2nd May 2014, they sought the following reliefs:-
(a) an order declaring the plaintiffs to be the owners in fee simple of ALL THAT AND THOSE that part of the Folio Number KE34848F of the Registered Freeholders of the County of Kildare currently and incorrectly registered in the name of the defendants and which is the subject matter of these proceedings;
(b) an order for rectification of the maps attached to the plaintiffs’ folios plan 23 of folio KE7062F and plan 38 of KE26791f of the County of Kildare and the defendant’s folio number KE34848F of the Register of the County of Kildare so as to show the true extent of both the plaintiffs’ and the defendant’s lands and the border between same and for an ancillary order to that effect, including an order requiring the Property Registration Authority to amend mapping accordingly;
They also sought various injunctive reliefs and damages for trespass and intimidation and harassment.
19
The appellant counter claimed seeking an order declaring the true boundary between the properties to be as set out in the existing Land Registry map.
20
In its reply and defence to the counter claim the respondents pleaded that the appellant was seeking to rely wrongly on the ‘digitised’ Land Registry map which differs from the previous true Land Registry file plan which formed part of the respondents’ documents of title.
The decision of the High Court
21
The trial judge traced the history of the creation of the relevant folios and maps. He noted that the copper beech tree was located at all times within the garden of Mr and Mrs Brady’s cottage before any transfer to either of the parties in these proceedings. The map used in 1979 to create folio 7062F included the area on which the beech tree was located. The trial judge noted that at the time of each of the transfers to the parties there was a steel post and wire fence to the north side of the beech tree which connected to a gateway behind the outhouse and that Mr Osmond Brady replaced this fence with a timber fence. The line of the fences (both steel post and the wooden one) was just to the north side of a row of trees which connected to a gateway behind the outhouse on the property.
22
Special condition 4 of the contract for sale between Mr and Mrs Brady and the appellant provided that the appellant ‘shall be conclusively deemed to have full knowledge of and to have satisfied itself as to the identity, boundaries, extent and measurements’ of the land. The trial judge noted that the appellant did not carry out a pre contract inspection or arrange for any comparison of maps to identify the boundaries between the 5 acre field and folio 7602F and folio 26791F either before or after execution of the contract with Mr and Mrs Brady in 2000 until August 2013.
23
At all times prior to 2013 the appellant recognised the boundary between the two parcels of land as that marked by the existing line of the fence. The appellant constructed a concrete post and timber fence in 2008 along the line of the acknowledged boundary for health and safety reasons during the development of Bartons Grange. The appellant relied upon the boundary claimed by the respondents and as demarked on the ground when the appellant applied for planning permission to develop the 5 acre field.
24
Mr Holton, the appellant’s land surveyor employed in 2013, calculated the area of land in dispute at 61.7 square metres. The trial judge noted that the maximum difference between the line asserted by the respondents and that asserted by the appellant was 1.5metres at any one point as it moved from the north western corner towards the copper beech tree at the north eastern side of the plot. The trial judge also explained that the line of the existing fence on the northern boundary of the respondents’ garden according to Mr Kestell’s map, 1A, lies slightly closer to the boundary appearing on the Land Registry map than the line of post holes used by Mr Holton, the appellant’s expert, to calculate the 61.7 square metres and thus that in fact the area of the disputed sliver of land was in fact less than 61.7m, though he did not establish the actual area of the disputed land.
25
The trial judge noted that OSI maps are derived from a methodology which lacks accuracy and precision for title boundary definition. They do not indicate legal property boundaries and they do not show ownership physical features. The trial referred to a joint statement of the OSI and the PRA from their websites that:-
‘It is not possible to identify the position of a legal boundary from an OSI map’
He also referred to the Inter Professional Task Force on Property Boundaries published in April 2014 which states as para 3 that:-
‘the primary problem is that the mapping used by the PRAI to record title boundaries is based on OSI mapping, which is published at a scale, and derived from a methodology which lacks the accuracy and precision required for title boundary mapping’.
He referred to the fact that s.85(2) of the Registration of Title Act 1964 (as inserted by s.62 of the Registration of Deeds and Title Act 2006) gives effect to the long established non conclusive boundaries principle in respect of maps in the Registry of the PRA.
26
The trial judge concluded that the respondents had established a right in equity to have the Land Registry map rectified. This was so having regard to the history of the conveyancing, the fact that the Land Registry is not conclusive as to boundaries and the fact that the Ordnance Survey maps are not suitable to determine boundaries. He noted there was evidence of the line of the fence and the beech tree which was indicative of the true boundary between the two parcels of land. This dividing line had been observed by all parties, Mr and Mrs Brady, respondents and the appellant. The appellant had acted on the basis that this represented the true boundary, as indicated by its applications for planning permission and erection of a fence in 2008. He also had regard to the fact that the appellant permitted the respondents to redevelop their lands, including the erection of a shed on what the appellant now asserted was part of its land. In addition he took into account the dimensions of the disputed sliver of land, the relative ratio of the size of the sliver of land to each of the parcels owned by the parties, the comparatively greater significance of the boundary line for the respondents to the appellant, the fact that the appellant did not fulfil its contractual duty to satisfy itself as to the boundary of the land it was purchasing, and the fact that Mr and Mrs Brady and the respondents were in actual occupation of the disputed sliver of land and that accordingly the appellant acquired its land subject to their rights as persons in actual occupation of the land pursuant to s.72(1)(j) of the Act of 1964. The court concluded that the discrepancy between the maps and the ground situation was not of such a magnitude as precluded the court from granting orders to correct the PRA mapping and distinguished the current situation from that in Boyle v. Connaughton (Unreported, Laffoy J., 21st March, 2000, Circuit Appeal).
27
The High Court also took the view that the appellant, through its employees from August 2013 onwards had trespassed on the respondent’s property and intimidated and harassed the respondents in their family home and he awarded each of the respondents the sum of €15,000 making a total of €30,000 together with a sum of €15,000 for the costs of the work required to remedy the damage occasioned by the various acts of trespass.
28
The appellant appealed the whole of the judgment and order of the High Court on the grounds discussed below.
Legal Principles
29
The former deputy registrar of titles, Mr Deeney, stated in his book “Registration of Deeds and Title in Ireland (2014)”, having noted that boundaries shown on Land Registry maps are not conclusive
‘this means that, in any case where the boundary is not stated to be conclusive or defined, evidence other than the Register or Registry map is admissible to determine the correct boundary and extent of the land’ (para 12.07)
30
It was accepted by both parties that the primary source of the boundary line between any two adjoining properties is the original deed whereby ownership is divided. In this case the relevant sub division is that between the parent folio and folio 7062F in 1981. That deed was not adduced in evidence. A considerable amount of time was spent construing the sub division of folio 26791F and the creation of folio 34848F but the disputed boundary is not to be found in the sub division of folio KE26791F so this had limited bearing on the dispute in this particular case. The key issue was to determine the correct boundary between the two parcels of land and this had to be done in the absence of the deed giving rise to the sub division.
31
The court was referred to a number of English authorities on the construction of deeds in boundary disputes. In Cameron v Boggiano [2012] EWCA Civ 157, Mummery LJ reaffirmed the established distinction between the construction of transfers and/or transfer plans that are clear and unambiguous and those which are not. If the transfer and/or transfer plan is clear and unambiguous, a mismatch between a clear plan and the actual physical features on the ground is not in itself a reason to disregard the title documents and determine the position of the disputed boundary by reference to the topographical features alone. On the other hand, the approach to construction and to the use of extrinsic evidence of topographical features is different when the title documents and plans are not sufficiently clear about the position of the boundaries. In that case, if the document is insufficiently clear to the reasonable layman with the plan in his hand to determine the position of the boundary, the court is entitled to seek assistance on the construction of the plan and title documents by taking account of the topographical features at the relevant date (para 63) At para 67 of the judgment he stated:-
‘it is not a case of substituting the physical features on the ground for the boundaries shown on the plan. It is a matter of sticking with the plan in the hand and, because it is insufficiently clear on the matter of boundaries, to use the topography at the crucial date to inform and to make sense of where the boundaries [are] of what is being transacted’
32
The court was referred to Fisher v. Winch [1939] KB 666, a case concerning a boundary dispute. Sir Wilfrid Greene M.R. gave the decision of the Court of Appeal. He said that the initial question should be:-
‘what, on the true construction of the conveyances to the parties, is the boundary of their respective land. If an examination of those conveyances coupled with any evidence that is admissible for the purpose of construing them shows what the boundary is, there is no room at all for the operation of that presumption’
33
At p.672 of the report he considered the evidence adduced in relation to Ordnance Survey maps. He continued:-
‘The effect of that evidence is that where there is a hedge or a fence running along a parcel, that is the boundary which is taken by the Ordnance Survey for the purpose of delimiting the parcels which are shown on those maps. Of course, the fact that the boundary is shown in a particular place on an ordnance map is in itself no evidence of what the true boundary is as between the parties, but where the party’s title is derived from a document which refers to the ordnance map, it is necessary to look at the ordnance map and ascertain where the boundary shown on that map is truly positioned….
[T]here it can be no question on Mr Emery’s evidence and the other evidence in the case as to those fences and hedges, that the boundary referred to on the ordnance Survey map is the centre line of the hedge and the fence. That being so, when the conveyance is looked at, the boundaries on which are traced by reference to the ordnance survey, the acreage of which is fixed by reference to the ordnance survey, it is established beyond possibility of question what the boundary is’.(emphasis added)
34
This is authority for the proposition that where there is a hedge or fence running along a parcel that is the boundary which is taken by the Ordnance Survey for the purpose of delimiting the parcels which are shown on the maps. The fact that the boundary is shown in a particular place on the map is itself no evidence of what the true boundary is as between the parties. However, where, as in this case, a party’s title is derived from a document which refers to the ordnance map it was necessary for the court to look at the ordnance map and ascertain where the boundary shown on the map is truly positioned. The boundaries appearing on the OS map are plotted by reference to the physical boundaries existing at the time the map was produced. If a conveyance follows the line of the plotted physical boundaries as appearing on the OS map, it necessarily follows that the boundaries follow the physical boundaries as they existed when the map was produced. The precise line of the boundaries must refer back to the actual physical boundary that existed at the date the map was prepared. In order to establish where the boundary shown on the map is truly positioned, it was permissible for the court to have regard to the admissible evidence of the expert employed in the Ordnance Survey as to the practice of making up maps and evidence as to the actual line of the old fences and hedges. What evidence will be relevant and admissible will vary from case to case but the exercise is to ascertain where the boundary is truly positioned.
35
The court was referred to one Irish authority on point, McCoy v McGill [2008] IEHC 301, where Hedigan J reviewed the authorities in relation to the construction of deeds and maps in the context of boundary disputes. At para 8 of his judgment he held as follows:-
‘From the above cases I deduce the following principles applicable herein. In relation to determining boundaries:-
(a) The primary source for defining a boundary line is the deeds in the chain of title.
(b) The plan attached (if there is one), is usually for the purposes of identification only. It cannot normally be relied upon as delineating precise boundaries.
(c) If necessary the deeds will have to be supplemented by such inferences as may be drawn from topographical features which existed or probably did when the conveyance was executed.
In relation to rules of construction of a deed:-
(a) The court must give effect to the intention of the parties as expressed in the deed.
(b) To determine this, the court must determine what is meant by the words actually used rather than what the court might conjecture they actually meant. The court should only do so where absolutely necessary to avoid defeating the object which the parties clearly had intended.
In relation to the role of a map:-
(a) A map or plan may be the determining matter where the parcels provide that the map is to determine the nature and extent of the land in question.
(b) A map may be an essential part of the grant where it is worded such as to make it so and where there can be no certainty without it.
(c) Any conflict between dimensions set out in figures on a plan by which the property is conveyed or transferred and those calculated by scaling off the plan, may be resolved by reference to topographical features which existed when the conveyances or transfer was executed.
36
In so far as this appeal is concerned, this means that, if necessary, deeds may be supplemented by such inferences as may be drawn from topographical features which existed or probably existed when the conveyance was executed and where there is a conflict between dimensions set out in figures on a plan by which the property is conveyed or transferred and those calculated by scaling off the plan, the conflict may be resolved by reference to topographical features which existed when the conveyance or transfer was executed.
37
The question of the consideration of extrinsic evidence to construe a deed or plan attached to a deed is addressed in Wylie and Wood, Irish Conveyancing Law and in Emmet and Farrand on Title (19th Edition). Wylie and Woods state at para. 17.79 that the general rule is that extrinsic evidence is not admissible to add to, vary or contradict the terms of the deed but notes that there are several exceptions to the rule, including to resolve a latent ambiguity. Emmet and Farrand state in para 17.011:-
‘extrinsic evidence (including aerial photographs) was similarly held admissible where the critical parcels clause had described the premises being sold in general terms followed by a precise statement of area (553.4 square acres or thereabouts) and reference to a plan “for the purposes of identification only” but that stated area was significantly less than the area taking the boundary to be the obvious feature (a dividing wall) already erected on the ground at the time and shown as such on the plan: Taylor v Lambert [2012] EWCA Civ 3. The statement of area was dismissed as a solicitor’s mistake in scaling up from a demolished piggery wall shown on the original conveyance of the undivided property without any double checking but also because it could not by itself identify a boundary (para 47) Lloyd LJ also supported the decision (at paras 40 and 41) by an objective test: what would a reasonable layman in the pOSItion of the intending purchaser at the relevant time have thought he was buying under the crucial parcels clause His answer (at para 41) was: “the reasonable layman, looking at the land as it stood, with the terms of the document in his hand, could not be expected to think he was buying an area of land defined by this invisible and irregular boundary, rather than one which ran as far as the boundary wall on the south”…
Accordingly, in practice, the situation on the ground may be decisive with an ordinary suburban property with existing fences but not with a plot on a building estate unless there is something on the land that would indicate to the objective observer where the boundary lies.’ (emphasis added)
38
It follows from these authorities that the first issue for a court construing the meaning of a conveyance or transfer is to decide whether or not the transfer and/or the transfer plan is clear and unambiguous. If the court concludes that it is not, then the court may go on to consider admissible extrinsic evidence to assist in the construction of the title documents and plans.
Was the transfer clear and unambiguous
41
The first matter to be considered is whether or not the deed of transfer of 2000 is clear and unambiguous both as to description and as to the map. If it is, then extrinsic evidence may not be admitted to construe the transfer and the trial judge ought not to have taken account of the physical evidence and other matters to which he had regard in reaching his conclusions.
42
The description of the parcels is not clear and unambiguous. It transfers part of the lands comprised in folio 26791F. It does not include any of the lands in folio 6709F. Other than this limitation, further detail is required in order to be precise as to the lands comprised in the transfer.
43
The transfer goes on to provide that the lands have an area of 2.057 hectares or 5.079 acres. The extent of the land transferred cannot of itself determine the precise boundaries of the lands transferred. Only if all but one of the boundaries is conclusively fixed can the remaining boundary be established by reference to the area of the land. This is a simple matter of logic. This does not apply to folio 34848F. The land comprised in folio 34848F is a field marked on rural place map. Such maps are subject to a margin of error +/- 2 metres and are not suitable to define boundaries conclusively. Further, in Taylor v Lambert, Lloyd LJ held that the area could not by itself identify a boundary.
44
The Transfer continues ‘ and more particularly delineated on the map annexed hereto and thereon surrounded by a red verge line’ Counsel for the appellant was correct to emphasise the fact that the map is annexed to the transfer, not for information purposes but to delineate the lands being transferred. Thus, the map is incorporated into the deed. There are thus two descriptions of the land transferred; the words describing the parcel and the map. If the verbal description is unclear it may be rendered certain by the map. See Wylie and Woods para. 18.66. The appellant argued that where the parties chose to use a map to mark the boundary they will be held to what the maps show. But that begs the question, what does the map show Does the map in this case make the boundaries of the lands which are not clearly described in the parcels, clear and unambiguous
45
The answer to this question is no. The map is delineated on the Ordnance Survey map scale 1:2500 which was marked with various field boundaries. As has already been pointed out, these maps are not sufficiently accurate to enable boundaries to be fixed precisely. Rural Place maps are subject to a margin of error. They are plotted by reference to the physical boundaries that existed at the time the map was prepared. The boundaries on the OSI maps are intended to reflect the physical boundaries but do not necessarily determine where the boundary shown on the map is truly positioned. In those circumstances the map cannot render the transfer clear and unambiguous and the court must have recourse to extrinsic evidence to establish the true position of the boundary between the parcels as was held in Fisher v Winch.
46
If the document is insufficiently clear to the reasonable layman with the plan in his hand to determine the position of the boundary, then the court is entitled to seek assistance on the construction of the plan by taking account of the topographical features at the relevant date. In this case the evidence of Mr Mealy, the architect employed to certify the extent of the lands in sale, was that he went to the field with a copy of the map and
‘I could see no visual difference between what is now the disputed area and where the boundary is… I was happy that what was on the Ordinance Survey Map was consistent with what I found on the field.’
This was the evidence of the witness called on behalf of the appellant and, to my mind, it satisfies the test to show that the map, and by extension the transfer, was not clear and unambiguous as to the boundaries of the land transferred and now comprised in folio 34848F.
47
On foot of the transfer the appellant was registered as full owner of folio 34848F. the Register is conclusive as to title (subject to certain qualifications which do not arise here). However, s. 85 of the Act of 1964 (as amended) provides that the description of the land in the Register or on the maps is not conclusive as to the boundaries or extent of the land. This means that the boundaries to the appellant’s folio 3848F are not conclusive and the area is not conclusive. It equally means that the boundaries and area of a folio 7062F are likewise not conclusive. It follows that the fact that the appellant has been registered as the owner of folio 34848F which includes a map outlining the lands comprised in the folio is not determinative of the dispute in this case. It does not resolve the lack of clarity as to the boundaries I have discussed.
48
For these reasons it was both permissible and necessary to have regard to extrinsic evidence in order to construe the deed of transfer of 2000. But a true construction of the transfer alone would not ascertain the true position of the boundary between folio 6709F and the lands transferred by the deed of transfer of 2000 and now comprised in folio 34848F. Folio 7062F was created nearly twenty years before the transfer to the appellant of part of the lands comprised in folio 26791F. As was accepted by counsel for the appellant, that deed of transfer could not transfer any part of the lands comprised in folio 7062F. Therefore, it is necessary to consider the evidence as to the true boundaries of that folio also and not confine the enquiry into the boundary of folio 34848F.
49
In my judgment the trial judge acted correctly in admitting and considering extrinsic evidence in determining where the true position of the boundary between the two parcels lies. It is not a case of permitting the facts on the ground to supersede the clear provisions of the deed. It is the unclear, imprecise provisions of the deed which are to be construed with the assistance of extrinsic evidence..
50
The following relevant facts were either established in evidence or found as a fact by the trial judge:-
(i) Mr Mealy certified the area based upon the map, he did not survey or certify the boundaries of the 5 acre field in sale.
(ii) There are discrepancies between the physical boundaries and the map attached to folio 34848F relative to the boundary between the folios 34848F and folio 7602F.
(iii) Mr Mealy’s map was drawn on an Ordnance Survey map which showed a boundary to the 5 acre field. There was never any other boundary line between the 5 acre field and the curtilage of the cottage other than that marked by the steel and wire fence which was replaced by the timber and post fence and the line of trees. The line of the boundary was not altered from the time Mr Brady Snr. acquired the parent folio which predated the subdivision of the parcel which gave rise to the boundary between the holdings.
(iv) When folio 7062F was opened the map was based on the then up to date Ordnance Survey map and recorded the plan outlined in blue in map 1A prepared by Mr Kestell. After the resurveying of Ireland using ITM coordinated reference system and the subsequent digitisation of Land Registry maps, a new folio plan was attached to folio 7062F as outlined in red in map 1A. There is a clear and significant discrepancy between the two maps. This is the result of a remapping exercise, not a resurveying exercise or an exchange of land between adjoining landowners. The registered owners were not notified of this change.
(v) The original map attached to folio 7062F is closely aligned to the line of the post holes and timber fence, the line of the physical boundary that existed until August 2013.
(vi) The copper beech tree is included in the curtilage of the original map attached to folio 6702F whereas the Land Registry revised map excludes the copper beech tree from the curtilage.
(vii) The evidence in the High Court is that Mr and Mrs Brady sold the ‘5 acre field’ to the north of their cottage and garden to the appellant. They were selling the field and the appellant was buying the field.
(viii) There was no evidence to suggest that Mr and Mrs Brady intended to sell or the appellant intended to buy lands outside the field and inside the garden of the cottage.
(ix) At all times the owners of the cottage and surrounding lands treated the boundary to the lands as that demarked by the fences.
(x) At all times up until August 2013, the appellant treated the boundary as the physical boundary. In its applications for planning permission to develop the 5 acre field it accepted this boundary. When it was developing out the planning permission, it erected its own fence following in the existing physical boundary.
(xi) The appellant was fully aware of the fact that the respondents demolished the cottage and replaced it with their existing family home and a shed which, according to the boundaries on the map attached to their folio 34848f encroached upon its land, yet for five years it sat on its hands and did nothing.
These are all matters to which the trial judge was entitled to have regard when determining the precise location of the correct boundary between the two folios. There was ample admissible evidence before him to conclude that the location of the true boundary was as he determined.
51
In fairness to the parties, it should be pointed out, as counsel for the appellant accepted, the relevant map showed the sold lands to be bounded along the public highway by a redline which appear dot run to the median line of the public highway. The presumption is that the person owning the land adjoining a public (or Private) toad owns the soil of one half of the road, so that an assurance of the land is presumed to include this soil. This may well have contributed to any misunderstanding or erroneous assumptions as to the extent or locus of the lands purchased.
52
The appellant argued that the rectification of the Land Registry map sought by the respondents and acceded to by the trial judge was greater than was permissible under s.85 of the Act of 1964. The appellant relied upon the decision of Laffoy J. in Boyle v. Connaughton to support its argument that ta discrepancy of 61.7 square meters was covered by section 85. The trial judge rejected this argument and, in my opinion, he was correct to do so. The boundaries at issue in Boyle were in a housing development in Castleknock between tow plots, not a boundary between a residential plot and a 5 acre field in a rural setting in Kildare. Secondly, the boundaries were drawn on rural place maps to a scale of 1:2500, which are not suitable for determining legal boundaries. The trial judge found as a fact that the maximum discrepancy between the line on the land Registry map attached to folio 34848F and the physical true boundary was 1.5m. The OSI maps have margin of error of up to 2 metres due to the manner in which they are produced and the scale. Thirdly, it is possible on the fact in this case that if the PRA had not digitised its maps and the map attached to folio 7602F had not thereby shifted as I have described that in fact no issue may have arisen between the parties.
53
The appellant argued that the respondents were not entitled to rectify the transfer of 2000 but that argument is not relevant to the case actually made. The respondents sought the correction of the maps in the Land Registry, not rectification of any deed.
54
The doctrine of nemo dat quod non habet was not relevant to the issue in the case. The issue was whether any part of Mr and Mrs Brady’s back garden was ever transferred to the appellant in 2000, not whether, having transferred it to the appellant in 2000, they could not transfer it to the respondents in 2008. For the same reason the fact that Mr and Mrs Brady transferred part of folio 26791F to the appellant as beneficial owner, with implied covenants as to title, is irrelevant if, as was held by the trial judge, the disputed land was never part of folio 26791F and was part of folio 7062F.
55
For these reasons I would refuse the appeal and affirm the decision of the High Court. There was a formal appeal against the quantum of the award of damages bur it was contingent on a successful outcome of the appeal on the boundary issue. As that appeal has not succeeded I would affirm the award of damages for trespass and intimidation.
Errors in the judgment
56
The appellant was correct in identifying certain errors of law in the judgment of the trial judge. Having affirmed his decision as correct as a matter of law on the facts of this case, I feel I should set out where in my view he erred lest silence on the part of this Court be considered an endorsement of those errors. In determining where the true boundary between the two properties lay he had regard to certain matters which were not relevant to that assessment.
57
He ought not to have considered the relative ratio of the size of the disputed sliver of land to each of the parties’ property and the comparatively greater significance of the boundary line for the respondents as compared to the appellant. The task is to construe the deeds, not to assess the equities as between the parties so he ought not to have considered these factors, even in the peripheral way that he did.
58
Second, ordinarily there is no contractual duty on a purchaser to satisfy himself as to the boundaries of the land in sale and the special condition in this case did not impose one. He may run certain risks if he fails to do so bur he is not thereby in breach of any obligation owed to the vendor or any other party. From the perspective of the parties to the contract he is bound by the caveat emptor rule. The General Conditions specified that the vendor ‘shall not be required to define exact boundaries, fences, ditches, hedges or walls or specify which (if any) of same are party in nature’. So if a purchaser fails to satisfy himself as to the boundaries of the lands in sale he does so at his own peril. But that is not a relevant matter to take into account when determining objectively the precise line of the boundary between adjoining properties.
59
Third, Mr and Mrs Brady were selling part of their land to the appellant in 2000, therefore they could not be said to be persons in actual occupation of the land they themselves were disposing of within the meaning of s.72(1)(j) of the Act of 1964 merely because they remained in occupation of the balance of their land which they did not sell. Insofar as the trial judge had regard to this section. In the circumstances of this case, that was not correct.