Prototipo técnico

The contract must contain an accurate legal and physical description of the property.

The legal description will state whether the land is freehold or leasehold; and, if leasehold, whether a lease or a sub-lease. (See Chapter 17 for leases.) Unless the contract provides otherwise it is implied that the freehold will be proved and conveyed.

As to physical description: The vendors solicitor needs to be satisfied that the description of the property in the contract is accurate and clear and that it corresponds with (i) what she wants to sell; and (ii) what she is able to prove title to.

The purchaser’s solicitor will need to be satisfied that the property as defined in the contract matches what the client wants to buy.

The property can be described verbally, or verbally with reference to an attached plan. Where the boundary features are long established it may not be felt necessary to have a plan prepared. Frequently the verbal description and a plan can be adopted from a previous conveyance of the whole property; but care should be taken that it is accurate and sufficiently definite. The parcels clauses (as they are known) in old conveyances tend to be prolix, written in what is now archaic legal language and often not very illuminating in relation to the property on the ground. ‘All that piece or parcel of land now in the occupation of John Thomas as tenant’ may at best lead you to a plot of land in some churchyard!

Where only part of the land in the existing title is being sold, a plan will invariably be desirable.

Particular care is needed on behalf of both vendor and purchaser where there is anything to suggest that the boundary line may not be clear and undisputed on the ground and correspond with available plans. In McManus Developments Ltd v Barbridge Properties Ltd⁷ the plaintiff purchasers were claiming, inter alia, against their solicitor for negligence. Although a sale of registered title, the same principles apply.

The property was described in the contract as ‘Garden House, rear of 33 Hartswood Road, London W12 (registered at HM Land Registry under absolute title no NGL 436091)’. The problem was that a fence supposedly marking the northern boundary on the ground was between three and four metres to the north of the true boundary line shown on the title plan of the registered title (of which the plaintiffs’ solicitor had a copy). When the discrepancy was discovered by the plaintiffs after completion they had to buy in the extra strip in order to carry out their

7 (1992) Lexis transcript.

intended development. The plaintiffs did have a copy of the estate agent’s location plan which, like the filed plan, showed the correct position of the boundary and their solicitor had orally advised them before contract to check the boundaries.

The basis of the finding of negligence was that one day before completion the plaintiffs had discovered that the fence had been moved by the neighbours to what in fact was the true boundary. They immediately informed their solicitor who treated it simply as a matter of unlawful encroachment by the neighbour, wrote to the vendor’s solicitors requiring them to get the fence put back to its former position and this was in fact done. The plaintiffs’ solicitor thereupon completed the purchase. In fact, unknown to the plaintiffs or their solicitor, a dispute was seething over the boundary between the vendor and the neighbour. In the view of the court the information that the fence had been moved ‘was calculated to set alarm bells ringing in a solicitor’s mind’. A competent solicitor would at that point have made a proper investigation as to why the fence had been moved and whether there was any dispute as to ownership of the boundary. Indeed, if the solicitor had checked the boundary on the ground with the filed plan, the true position would immediately have become obvious.⁸

Hopefully, the verbal description will tally with any plan annexed. If, in any document, there is a discrepancy the court will have to decide which prevails. If the property is referred to as ‘more particularly delineated on the plan annexed’

(or words to that effect) the plan will normally prevail. If the plan is referred to as being ‘for the purposes of identification only’ (or words to that effect), the verbal description will normally prevail.

5.4.1 Land Registry plans

(See also para 11.2.3.) It should be remembered when drafting or perusing a draft contract that any conveyance of unregistered title on sale will now have to be registered by the purchaser.

‘One of the distinguishing features of registered conveyancing is that the land is described by reference to an official plan based upon the ordnance survey map, revised up to date. Consequently, an applicant for first registration must give the registry sufficient information by plan or verbal description to enable his land to be identified with precision on the ordnance survey map of the Land Registry general map.’

The same authors also say:

‘More than one in eight of the plans which are brought into the registry on first registration, or in connection with transfers of part of the land in

8 See also Jackson v Bishop (1979) 48 P & CR 57; below para 5.7.

a registered title, contain errors and inaccuracies which are too serious to be ignored.’⁹

The best plan for submission to the Registry is likely to be one based on the ordnance survey map,¹⁰ though copyright permission is needed to use these maps.

The Law Society has an arrangement with the Ordnance Survey Department under which solicitors can obtain a general licence to use their material.

5.4.2 Ownership of boundaries

Who owns the privet hedge? Where exactly is the line dividing me from my neighbour? There are probably many running battles and little final certainty in this area. It is uncommon for the title deeds (except perhaps on new developments and when part of the property has been sold off) to delineate the mathematically exact line of boundaries and the consequent ownership of boundary features. Where ownership of boundary features such as fences and walls is shown on plans it is conventional to do it by means of a ‘T’ facing inwards from the boundary. The significance of the ‘T’ should be incorporated into the verbal description.

In usual conveyancing practice the need to show and prove the exact line of boundaries is avoided by what can be called the general boundaries rule. Standard Conditions 4.3.1. (iterating this open contract principle) and 4.3.2. provide:

‘4.3.1. The seller need not:

(a) prove the exact boundaries of the property;

(b) prove who owns fences, ditches, hedges or walls.

4.3.2. The buyer may, if it is reasonable, require the seller to make or obtain, pay for and hand over a statutory declaration about facts relevant to the matters mentioned in condition 4.3.1. The form of declaration is to be agreed by the buyer, who must not unreasonably withhold his agreement.’

This principle allows the vendor a measure of latitude in proving the exact limits of the property; but failure to show the boundary line to a significant degree would not be protected by the condition.

The Land Registry normally adopts the same general boundary principle on its filed plans; which again means that if any dispute arises between neighbours it will have to be resolved as a question of fact in the light of all the evidence and

9 Ruoff & Pryer, pp18, 22. For Land Registry advice on plans, see their Practice Advice Leaflet (PAL No 8).

10 Except, for example, where there are overlapping floors when proper architectural plans may be advisable.

common law presumptions as to the limit of boundaries. If the relevant deeds sent on registration of the title do mark boundaries with a ‘T’ which is referred to in the verbal description, this will be replicated on the title plan and noted on the property register.¹¹