A recent boundary dispute case (Cook v JD Wetherspoon plc) has again raised the issues of plan scale, annotations, the legal view of survey and the duality of purpose of Ordnance Survey mapping data. This case has become a bit of a cause celebre amongst RICS boundary experts and the possible ramifications have been further explored by legal expert Colin Mackenzie-Grieve from Stephenson Harwood in the article below. The article is also available within the latest Legal Eye update on legal developments within real estate.
In the pressure to get that deal completed, the preparation of accurate scale plans often seems an unnecessary luxury. But, as a recent case shows, it may be an essential element of the transaction.
Getting the scale right
The parties to a deal might think that the Land Registry plan can just be marked up to show the land concerned. Alright, the scale is small but the position is obvious enough on the ground. And indeed it may all be fine, at least if you are selling all of the land in your ownership. If you are not, then think again. A recent case (Cook v JD Wetherspoon plc) shows how a plan on too small a scale, even with measurements written in, can prove a false economy.
In that case, a dispute arose over the extent of a strip of land retained by the seller. Someone had written “40 feet” on the plan as the width of the strip. However the plan was expressed to be to scale and scaling off gave a figure of 30 feet for the same width. The debate as to which measurement was correct went all the way to the Court of Appeal, with no doubt considerable costs incurred on both sides, some of which would be irrecoverable even for the winning party.
The Court of Appeal examined all the evidence and decided that, in the particular circumstances of the case, the measurement obtained by scaling was correct and that the written measurement was wrong. However, it said that there is no presumption either that scaling will take precedence over a written measurement or vice versa. In effect, the rule propounded by the Court was that there is no rule.
Land Registry requirements
The effect of the decision is therefore to increase the uncertainty which will exist if there is no accurate plan. To some extent the requirements introduced by the Land Registry a few years ago have helped to reduce the problem, by giving parties to deals which will be registered no option but to use a proper plan. The Land Registry has three basic requirements. The plan used should be to scale, it should include a north sign and it should show sufficient of the surrounding area to enable the location to be determined with certainty.
These new Land Registry requirements can bite even on existing documents. This is because leases are now registrable if granted for a term of seven years or more or if, on assignment, the term has seven years or more left to run. If necessary, one will have to be specially drawn up and the agreement of the landlord obtained for it to be incorporated into the lease by a short supplemental deed.
The general boundaries rule
However, the Land Registry does not stipulate any particular scale which should be used on plans submitted to it. As far as its own plans are concerned, it operates what it calls the “general boundaries” rule, which is that, on the title plans which the Registry issues with the official copy of the title entries, the plan is not intended to delineate the boundary with precise accuracy but rather to show its general position. Often the thickness of the boundary line itself on the plan will represent several feet on the ground.
The net result is that, at least in any situation where precise measurement is critical (ie most development situations) it is advisable to have a measured survey undertaken and a large scale plan drawn up. Sometimes it may be wise to have a separate plan for particular details which can only be shown with accuracy at a scale so large that, if used for the whole site, the resulting plan would be unmanageable. Depending on the size of the site and the extent of the detail needed, a measured survey and plan may not cost more than £500 – £750. A small price to pay now compared to the saving in litigation costs later.
Colin Mackenzie-Grieve
The author is a partner in the real estate group of international law firm Stephenson Harwood.
Telephone 020 7809 2500
e-mail Colin.Mackenzie-Grieve@shlegal.com
