Leading Title Insurance

FIRST COMMENT02

IN THIS ISSUE:• ABANDONMENT OF AN EASEMENT –

CAN WE EVER BE CERTAIN?• FRAUD - AGAIN!• DRAWING A LINE UNDER A DISPUTE• CLAIMS CASE STUDY: ACCESS

SUMMER 2016 ISSUE

Welcome to the summer edition of our newsletter. Firstly, we would like to thank you once again to those of you who responded to our recent customer satisfaction survey; your feedback is greatly appreciated. Congratulations go to Amy Jones of Pinsent Masons LLP, who was the lucky winner of our £500 experience day voucher.

In this issue, we have contributions from our regular writers Paul Butt (who focuses on fraud) and Kevin Lee (who discusses boundary disputes.) Our staff contribution this quarter is from commercial underwriter Ben Baker, who considers the abandonment of easements. Lastly, we give an insight into how we deal with claims with a brief case study regarding a recent access claim.

We do hope that you are enjoying the new format of our newsletter. Should you have any feedback, suggestions or comments, please don’t hesitate to send them to us at marketing@firsttitle.eu

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Abandonment of an Easement – can we ever be certain?

FIRST COMMENT

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With registered titles often revealing the existence of rights burdening land and little evidence sometimes available as to who and what could benefit from the right, Ben Baker, commercial underwriter at First Title, looks at how certain we can be that a right of way has been abandoned.

Abandon is a very definite term; it is used in

situations which are particularly black and

white rather than circumstances where there

may be an uncertain grey area. It is this

absolute value which sees it used in the terms

Abandon ship and Abandon hope all ye who

enter here. Similarly, the abandonment of an

easement is a very definite situation, depriving

one party of a proprietary interest which

they previously benefited from, yet freeing

up another landowner from a potentially

cumbersome burden. However, the

circumstances surrounding how such

a scenario can arise are decidedly less certain,

containing plenty of the aforementioned

grey areas.

The legal position is that it is while an

easement can be abandoned, establishing

such abandonment is much more difficult.

As a precursor to assessing how an easement

can be abandoned it will also be useful to

note the other ways in which an easement

may be extinguished or released before a

more detailed examination of the position

regarding abandonment.1

Express release

In simple terms, the owners of dominant and

servient land can enter into a deed attempting

to release a right of way. This will have the

effect of extinguishing the right of way in

relation to those two plots of land, but caution

should be exercised if the right of way has

not been released by all the dominant land

benefitting from the right.

1 For further reference see Land Registry Practice Guide 62 section 11 and Law Commission Consultation Paper no 186 Easements, Covenants and Profits à Prendre

Unity of ownership

Also known as “unity of seisin,” this rule dictates that

where the dominant and servient land come into

common ownership, the right is extinguished. It is not

revived or preserved on a subsequent sale. Therefore,

any party wishing to benefit from the rights will need

them to be freshly granted once land has been in

common ownership.

Statutory Powers

An easement can be extinguished by statute or under

statutory authority. Circumstances, where this may come

into play, include compulsory purchase pursuant to a

statutory power or potentially according to s.237 of the

Town and Country Planning Acct 1990 which permits the

interference with a right to which the section applies.

Termination of an Estate

This method comes into play where the estate

benefitting from an easement ceases to exist, for

example at the end of a lease, so to do the rights

benefitting from the right to a certain extent. The Court

of Appeal decision is Wall v Collins2 offers a slightly

different view on this in upholding that rights granted to

a lessee did not extinguish when that party subsequently

merged their estate with the freehold.

Implied Release

Precedent shows that an easement can be impliedly

released through either excessive use or abandonment.

In order to be abandoned due to excessive use, the

benefitting land will need to physically change, or the

land must have a sufficient change of use. A key point

to remember in determining whether there has been

excessive use of an easement is that it may often be

necessary to work out in the first instance the nature

and extent of the easement itself. Once the nature of the

easement has been established a two-stage test was set

out by Lord Justice Neuburger in McAdams Homes Ltd v

Robinson3 to determine whether the easement has been

lost. These two stages are firstly, the dominant land must

be developed in such a way to represent a radical change

in character and secondly that the redeveloped site

creates a substantial increase or change in the burden on

the servient land.

Abandonment of an Easement

As previously alluded to it is difficult to establish that

an easement has been abandoned. The Land Registry

note the judgment of Buckley LJ that in order to have

abandoned an easement the benefitting party must

have “demonstrated a fixed intention never at any time

thereafter to assert the right himself or to attempt to

transmit it to anyone else.”4

This provides us with the starting point that an easement

will not become abandoned in the eyes of the law

purely by lack of use. This was the key point behind the

decision in Benn v Hardinge5 to hold that even though

an easement had not been used for 175 years, it had still

not been abandoned. There is a suggestion that such

extensive non-use would need to be justified in order

for the courts to infer that it had not been abandoned,

yet in this case the only justification was that use had

been made by the owners of the dominant land of an

alternative access.

Furthermore, the more recent case of Dwyer v

Westminster Council6 shows that even the registration

of servient land with Possessory Title following 40

years of exclusive possession does not lead itself to the

presumption that a right of way has been abandoned.

4 2 [2007] EWCA Civ 444, [2007] Ch 390, 3 [2004] EWCAA Civ 214, [2005] P& CR 30, 4 Tehidy Minerals v Norman [1971] 2 QB 528, 5 Benn v Hardinge (1993) 66 P &CR 246, 6 2014] EWCA Civ 153

The Law Commission suggest that there is “a

conspicuous reluctance on the part of the courts to find

that an easement has been extinguished.”

This leaves the law in a particularly unhelpful position

for landowners with property burdened by such rights.

Short of definite action to release a right of way, land

could conceivably be bound by rights created in years

gone by for perpetuity, limiting the scope for further

development or use of the land in accordance with the

present day landowners wishes. While this makes perfect

sense in relation to rights that are still being exercised,

where dominant land would appear to retain no practical

benefit, there are inherent risks in seeking to use land

without accounting for these apparently obsolete rights.

On the other hand, one must bear in mind, as has been

pointed out by the courts throughout the legal history

of this issue that property owners and the beneficiaries

of rights do not want to be under an obligation to

make constant use of a right in order to stop it being

taken away.

In contrast to covenants there is not a mechanism

currently in place allowing for the modification of a

burden affecting land that is no longer relevant, nor is

there always the possibility of obtaining an express and

final release of rights burdening servient land.

The effect of this is that it is not possible to ever be

certain that an easement has been abandoned without

the facts being determined by the court. The precedent

set by the courts appears to establish that where

possible circumstances will be construed to ensure the

perpetuation of rights.

What next?

While it is now around five years old, the Law

Commission report on Easements, Covenants, and

Profits à Prendre7 sought to address these issues. It

recommended the establishment of a body similar to

the Lands Chamber allowing for a court to determine

the status of an easement. It also recommended that

a continuous period of 20 years without use should

create a rebuttable presumption that it has been

abandoned. Clearly this would not definitively address

the uncertainty attached to easements that appear

to have been abandoned. It would take the courts to

determine in due course on what basis we would avoid

the presumption and therefore the necessary certainty

regarding future dealing with land subject to such rights

will still not be achieved.

In practical terms, a landowner finding rights on their

title which might have been abandoned will be faced

with the following considerations, either under the

current regime or to a similar extent under the Law

Commissions suggested regime, when looking to deal

with their property:

• Do they avoid or amend any development to

prevent interfering with a valid right of way?

• Should they approach owners of dominant land to

secure a formal release with the risk that this is not

forthcoming, or all dominant land owners cannot

be traced?

• Can they afford to take a chance that no third party

will seek to exercise the easement?

None of these options are ideal and yet there does not

appear to be a perfect solution taking account of all

relevant interests. Consequently, all interested parties will

need to continue weighing up how best to deal with the

inherent uncertainty regarding potentially abandoned

easements and looking at ways that they can manage the

risk this represents.

57 LAW COMM No 327

FIRST COMMENT

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Fraud - Again!

Introduction

Once again Conveyancing fraud is in the headlines – and in particular the vexed question as to whom should bear the loss. Regrettably, it increasingly seems that the answer will be – the Conveyancers! Recently we have had more cases in effect holding conveyancers liable for the fraud of others.

It is now well established – and hopefully

well known - that if a conveyancer receives

client’s money – whether for a lender

or a buyer – that money is held on trust

pending completion. So if completion

does not take place – or it turns out that

what was thought to be completion is

fraudulent, the conveyancer will be liable

for breach of trust. This is an absolute

liability irrespective of fault. So we start

with the position that the conveyancer is

liable. However, the court has the power

to waive liability under s.61 Trustee Act

1925 if the trustee/conveyancer has acted

‘honestly and reasonably and ought

fairly to be excused for the breach of the

trust’. However, remember that a high

duty is placed on trustees, particularly

professional trustees. So, in deciding

whether the conveyancer should be

excused from liability, the Court of

Appeal has held that the conduct of the

entire transaction must be taken into

account, not just matters which might

have facilitated the fraud: see Santander

v RA Legal [2014] EWCA Civ 183. This

was a case involving a fraudster in the

seller’s solicitor’s offices, but the buyer’s

lender’s solicitors could not ‘fairly be

excused for the breach’ where they had

handled the transaction in a ‘slipshod’ way

– for example by failing to get the usual

undertaking to discharge the outstanding

mortgage and also failing to get

agreement to use the Law Society Code on

completion – neither of which would have

prevented the fraud.

However, the existence of the s.61 power

does mean that if we have carried out the

transaction in a ‘reasonable’ manner – as

most conveyancers do – then we will be

relieved of the liability.

By Paul ButtConsultant Solicitor, Rowlinsons Solicitors

FIRST COMMENT

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Fraud - Again! Seller’s Conveyancers Liability

Moreover, now we have Purrunsing v

A’Court & Co [2016] EWHC 789 (Ch). Here,

for the first time, the seller’s conveyancers

were held liable for breach of trust in

relation to purchase monies paid over to

them on completion.

The Facts

The facts of the case were slightly unusual.

In 2012, the fraudster, pretending to be a

Mr. Dawson retained A’Court & Co, solicitors

(ACC), to act on his behalf in relation to

the sale of the property in Wimbledon. Mr.

Dawson’s instructions to Mr. A’Court were

that he was not living at the property; the

property was vacant and had been given

to him by his father in 2008 and that a

speedy exchange and completion would be

required because he needed the money. Mr.

Dawson told Mr. A’Court that he was living

at an address in Maidenhead. He produced

a water bill and an electricity bill addressed

to him at that address and also a bank

statement addressed to Mr. Dawson and

his wife at that address and what appeared

to be a British Passport for Mr. Dawson.

The passport was a forgery, but it was not

alleged that Mr. A’ Court should have been

able to detect that it was not genuine.

As the judge commented, the unusual

situation here was that there was no

connection between the seller and the

property he was claiming to own: the

addresses for service entered on the

Register of Title were the property and an

address in Cambridge, not the address in

Maidenhead. Unfortunately, this did not

seem to be strange to Mr. A’Court.

As will be appreciated, none of the utility

bills supplied by Mr. Dawson to ACC were

addressed to him at either the property or

163 Huntingdon Road, Cambridge. ….It is

common ground, but in any event, I find,

that had ACC attempted to contact Mr.

Dawson at the Cambridge address they

would have made contact with the real

owner, and the fraud would have failed. I

make this finding because, when an attempt

was made to register the claimant’s title,

the Land Registry made contact with

(as it turned out) the true owner at the

Cambridge address and it was this that led

to the discovery of the fraud. …Mr. A’Court

could have asked for utility bills or council

tax documentation for the property. Given

Mr. Dawson’s instructions that the property

was empty, this ought not to have been a

difficulty. Mr. A’Court did not do so.

Mr. Purrunsing sued both firms of

conveyancers involved. Both ACC, who

acted for the fraudster and the licensed

conveyancers who acted for him, House

Owners Conveyancers (HOC) in north

London, admitted liability for breach of trust

concerning the purchase money, which was

sent by ACC to an account in Dubai and had

disappeared; the trial was about whether

they had acted ‘honestly and reasonably’

to be entitled to relief under s.61 of the

Trustee Act 1925.

The Decision

HHJ Pelling held that ‘The vendor’s solicitor

is as much a trustee of the purchase

money while it is in his possession

pending completion as is the purchaser’s

solicitor.’ Moreover, “there is no obvious

justification for interpreting s.61 more

leniently in respect of such a breach

of trust by a vendor’s solicitor than

would be the case in relation to such

a breach by a purchaser’s solicitor”.

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He found that A’Court had made “no serious attempt”

to carry out risk-based due diligence and comply with

anti-money laundering regulations to prevent the

fraud. Critically the firm obtained no documentation

linking the seller to the property – it had failed to

make further enquiries even though the fraudster

had provided an address that was neither that of the

property nor the alternative service address that

appeared on the Land Register.

The judge relied upon and quoted extensively from

the Law Society Practice Note on Property and

Registration Fraud and ACC was found wanting:

‘The reality is that Mr. A’Court simply did not know

of the terms of the rules and guidance to which he

was subject,’ the judge found. ‘Had these enquiries

been made as and when they should have been, it

is unlikely the fraud would have occurred in the

way it did.’

He went on:

The Note warns specifically of a rising incidence of “…

fraudsters targeting the properties of … individuals

…” by means that can include identity fraud – see

Paragraph 1.2. At Paragraph 2.3, the Note identifies

certain properties as vulnerable to registration

frauds. Five types of property are listed including

two applicable in this case being (1) unoccupied

properties and (2) high-value properties without

a legal charge.

Paragraph 3.1 of the Note warns that identity

documents may not conclusively prove that the

person is the person they are purporting to be or

that such person is the registered proprietor of

the property. This leads to Paragraph 3.1.1, which

summarises the obligations imposed by Reg.5 of the

MLR including in particular Reg.5(c) before saying

of this provision that it “… means more than just

finding out that they want to sell a property. It also

encompasses looking at all the information in the

retainer and assessing whether it is consistent with

a lawful transaction. This may include considering

whether the client is the owner of the property they

want to sell”…..In my judgment the factors pointing

towards the need for such consideration, in this case,

include that the property was a vulnerable property

because it was (i) unoccupied (ii) unencumbered and

(iii) high value and also because (iv) it was one where

the address given by Mr. Dawson was not either

of the addresses for service that appeared on the

proprietorship register.

Conveyancers, please note all of these comments!

However, what of the buyer’s conveyancers?

Unusually HOC had asked a specific question about

identification. They asked:

‘“Please confirm you are familiar with the sellers

and will verify they are the sellers and check ID to

support same.”

No comment on the grammar of this!

ACC replied:

‘As explained to you over the telephone, prior to

being approached to act on the sale we have no

personal knowledge of Mr. Dawson, but we confirm

that we have met him in person and have seen his

passport (and retain a copy of the photo page)

together with utility bills etc showing his UK address

as notified to us.’

HHJ Pelling said that HOC should not reasonably have

been satisfied by this answer, so again no relief from

liability. Having asked such a question, presumably,

the only ‘reasonable’ answer would have been ‘Yes we

verify that he is the seller.’

However, does this mean that we should all now

be asking such a question and insisting on such an

answer? Alternatively, would HOC have been better

not to have asked the question – most conveyancers

do not - and would they then have been relieved

from liability? Moreover, what about CQS firms or

FIRST COMMENT

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indeed any firm stating that they will comply with

the Law Society Protocol? Step 2 of this states that

both parties will ‘Carry out and record – verification

of identity and compliance with money laundering

regulations.’ Is it ‘reasonable’ to assume that

such firms have done that, or should we ask for

confirmation? The case raises more questions than it

answers, I am afraid.

Anyway, in the case itself, the Judge finally

concluded that HOC and ACC must each bear equal

responsibility for the loss.

Friday Afternoon Fraud – Still!

On April 23rd, the Daily Telegraph reported:

“Property sellers warned not to email solicitors: ‘We

lost £204,000’”. The followed a lengthy report on

Friday Afternoon fraud where buyers had received

an email, apparently from their conveyancer, giving

the bank account details into which the purchase

monies were to be paid. However, the emails had

been hacked and the email received by the clients

– ostensibly from the conveyancer – gave the

fraudster’s bank details, not the conveyancer’s, and

the money disappeared. The report continued:

“Telegraph Money disclosed the first cases of

this fraud 12 months ago in May 2015. Since then,

the legal community has done little to protect

homebuyers and sellers. Fresh cases continue to

emerge, with this newspaper being aware of at

least three six-figure losses arising since February.

It continued “Between November and January, 35

reports have been made resulting in a combined

loss of £2,665,819.”

The conveyancers in question said that their email

system had not been hacked, and so they could

accept no responsibility for the loss. However, the

answer to this fraud is simple. We tell clients that

we will NEVER under any circumstances send (or

accept from them) bank details by email. Moreover,

we make sure that fee earners comply with this

rule. Moreover, if (as in the Telegraph case) there is

a need for bank details to be given more speedily

than through the good old fashioned ‘Snail Mail’,

then use the telephone. On-line conveyancers

already have sophisticated security checks in place

to ensure that the person on the phone is whom

they say they are and such checks should be used

by all of us when obtaining or giving important

information over the phone.

Liability to Land Registry

Moreover, then we have Chief Land Registrar v

Caffrey & Co [2016] [EWHC] 161 (Ch)

This reminds us that there is yet another way of

holding conveyancers liable for the fraud of others

– we can be required to reimburse Land Registry

for the compensation paid out by Land Registry to

those who suffer loss due to fraud.

As an example of this, Land Registry recently

obtained judgment against solicitors who enabled a

borrower’s fraud by failing to spot forged discharge

documents. Land Registry had indemnified the

lender and made the claim by way of subrogation

to recover its loss.

The Facts

Caffrey & Co was a firm of solicitors. In October

2009, it had been instructed by William and

Evelyn Turner who were joint proprietors of Walnut

Tree Farm in connection with the discharge of a

mortgage over the farm in favour of DB UK Bank

Ltd. Unusually, however, instead of requiring

Caffreys to deal directly with the bank, the Turners

handed over a Form DS1 purportedly signed on

behalf of the bank discharging the mortgage.

Caffrey’s instructions were simply to submit this

to Land Registry and obtain the removal of the

charge from the title. Although it is not unusual

for instructions to be received to discharge a

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mortgage, a client coming along with an executed

DS1 is unknown in the writer’s experience. Why didn’t

they just send it to Land Registry themselves?

Caffrey’s submitted the DS1 to Land Registry, which

raised a requisition requesting confirmation that

the signatory of the form was authorised by the

bank. Caffrey’s then contacted the Turners (why

not the bank?) and the Turners supplied Caffrey’s

with a power of attorney allegedly from the bank

authorising the signatory to sign the DS1 on its

behalf. Land Registry consequently discharged the

mortgage. At no stage had Caffrey’s contacted the

bank directly or through the solicitors whom the

Turners alleged had acted for the bank in connection

with the discharge.

Subsequently, Mr. Turner purchased Mrs. Turner’s

share of the property, raising finance to do so

from Santander on the security of a charge on the

property. In 2011, DB Bank discovered that its charge

had been removed, and applied to alter the register

to reinstate it. In 2012, an adjudicator ordered that

the charge be reinstated, but ranking after that of

Santander. DB Bank then sought and obtained an

indemnity from Land Registry.

The Chief Land Registrar then brought proceedings

against Caffreys to recover the monies paid out on

the indemnity claim. The first ground of claim was

that he was entitled to be subrogated to the claim

that the bank would have had against Caffreys.

(Under s 103 Land Registration Act 2002, the

Registrar is entitled to bring any cause of action

which the bank could have brought). However,

Master Matthews held that as Caffrey’s were not

acting for the bank, it owed no duty of care to it. So

as the bank could not have sued Caffreys, neither

could Land Registry.

The second ground of claim was based on negligent

misrepresentation. By completing and submitting

the application to Land Registry, Caffrey’s “expressly

or impliedly represented to the Claimant that it had

taken sufficient steps or measures and/or knew of

sufficient facts to satisfy itself that” the discharge

form had been properly executed, and that the

power of attorney was valid.

Further, Caffrey’s “knew or ought to have known

that the Claimant would rely upon” these

representations in dealing with the application to

discharge the bank’s charge and that therefore

“the Defendant owed to the Claimant a duty

to take reasonable care to ensure that the

[representations] were true.”

Caffreys took no part in the hearing – it had

been closed down by the SRA in April 2012 –

and so these claims went uncontested. The

Master expressed doubts but eventually

stated “I am narrowly persuaded that on the

peculiar facts of this case, which may not be

replicated in other cases where the solicitors

challenge the allegations of express or implied

representations …, it is right to treat the

Defendant as having assumed a duty to take

care in the representations which it made to the

Claimant”. Judgement was entered in favour of

Land Registry.

Comment

So the case is authority for the proposition that

when submitting applications to Land Registry

conveyancers represent that they have taken

sufficient steps to satisfy themselves that the

documents are valid. However, in the vast

majority of cases, this is not imposing further

obligations on us. We already owe that duty

to the buyer or lender clients for whom we

are acting.

Conclusion

So there still does seem to be a lot of fraud about,

so we must be careful and alive to the risks.

However, as long as we behave honestly and

reasonably, if the worst does happen, and one

of our clients is the victim of fraud, we should

be relieved of liability under s.61. And of course,

most conveyancers are reasonable –

well most of the time anyway!

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FIRST COMMENT

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FIRST COMMENT

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As most practitioners will be aware, Land Registry title plans are illustrative and not determinative. S.60 (1) of the Land Registration Act 2002 (the 2002 Act) provides that “the boundary of a registered estate is shown for the purpose of the register is a general boundary, unless determined under this section”.

S.60 (3) then provides that “Rules” may make

provision, enabling or requiring the exact line of a

boundary to be determined. Turning to the rules

themselves, Rule 119 of the Land Registration Rules

2003 provides that where on an application the

Registrar is satisfied that a plan does identify the

exact line of the boundary, then he should notify

adjoining owners of that fact and if the adjoining

owners object to the Registrar’s decision, then the

Registrar must cancel the application. If there is

a dispute as to the Registrar’s decision, then the

matter will be referred to the Land Registration

division of the Property Chamber, First-tier Tribunal

(“the FTT”). On 1 July 2013, the tribunal replaced the

role of the Adjudicator to HM Land Registry. One

of its roles is to determine disputes arising from

objections. The tribunal is totally independent of

the Land Registry. Any appeal from a decision

of the tribunal is dealt with by the Upper Tribunal

(Tax & Chancery Chamber).

Boundary disputes have always been dealt with by

the tribunal and the Adjudicator before it. However,

in Murdoch - v - Amesbury (2016) the Judge in

the Upper Tier Tribunal found that the FTT had

exceeded its jurisdiction. In this case, the FTT had

found that the plan prepared by the applicant as the

correct plan for determination was not sufficiently

detailed. However, it then went one step further

because it decided to determine the boundary

itself on the evidence before it. It was this that His

Honour Dight, sitting the Upper Tribunal objected to.

He ruled that the FTT had exceeded its jurisdiction

in determining the boundary. In his view, the

FTT could merely determine the correctness or

otherwise of the Registrar’s original decision. It was

Drawing A LineUnder A Dispute

FIRST COMMENT

By Kevin LeeHill Dickinson LLP

not for the FTT to decide itself what in fact the true

boundary was.

This decision was somewhat surprising. In fact, it

was a point specifically raised in the Law Commission

consultation paper (“Updating the Land Registration

Act 2002”) that was published in March 2016 and

which remains open for consultation at the time of

writing this article. The consultation paper itself is fairly

heavy reading, running to some 496 pages. However,

at paragraph 21.15 (on page 440), there is a section

on dealing with the jurisdiction of the FTT to deal

with boundary issues. The paper notes the Murdoch

decision and the fact that the judge, in that case, had

held that the FTT did not have jurisdiction to decide

where the true boundary did lie. The Law Commission

noted that s.60 (3) of the 2002 Act could give rise to

disputes that when referred to the FTT, the FTT would

not be able substantively to resolve. The Commission,

therefore, recommended that the FTT should be

given express statutory power to determine where

a boundary lies when an application is referred to it

under s.60 (3) of the 2002 Act.

This was, therefore, the position at the time of the

Judgment in Bean and Saxton - v – Katz and Katz, a

case determined by Judge Elizabeth Cooke sitting

in the Upper Tribunal on 6 April 2016. In this case, a

boundary dispute had been referred to the FTT. It had

determined that the boundary was of a line contended

for by the applicants, save for a small section where

it found that the boundary should be at a right angle

rather than on a curve as shown on the applicant’s

plan. The FTT had obviously felt that they did have

the jurisdiction to make that finding, i.e. to make a

determination of the true boundary on the evidence

before it. Judge Cooke considered that this was correct

and that the FTT did have jurisdiction to make the

order that it did. She found that there was a distinction

between a case where an application is dismissed on

the basis that the plan was, for example, technically

unsatisfactory or where the application is dismissed

on grounds where the applicant has failed to establish

where the exact line of the boundary is. However,

Judge Cooke found that the FTT did have jurisdiction

to deal with the issues, namely to examine the Title

and decide the success or failure of the application

according to where the boundary lay and to direct the

Land Registrar where necessary to give effect to any

order made. The case was quite different to the case of

Murdoch where the plan did not meet Land Registry

requirements and was dismissed for that reason. The

plan in Bean and Saxton was technically satisfactory,

and accurate save for one small section. The Tribunal

therefore directed the Land Registrar to give effect of

a plan except to a small amendment that Judge Cook

made as to its as to its route (the Tribunal had got it

wrong in changing the boundary from a curve to a right

angle, but this was not a jurisdictional error, but simply

an understandable error of facts).

So where are we now in relation to disputed boundaries

and the correct manner in which to proceed?

An application to determine a boundary should still

be made to the Land Registry under S.60 of the 2002

Act and Rule 119 of the 2013 Rules in the first instance.

Obviously, the application needs to be supported by a

Land Registry compliant plan showing the necessary

detail and supported by supporting evidence of any

alleged verbal boundary agreements, historical title

deeds, etc.

If the Registrar is satisfied with the evidence submitted,

then the Registrar will serve notice on the adjoining

owner. If the adjoining owner objects, then the matter

is capable of determination by the First Tier Tribunal.

So in some ways, it seems that Judge Cooke has

answered the prayers of the Law Commission.

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What was the background to the claim?

The insured’s property had the benefit of a right

of access over neighbouring land. This right,

however, only existed for two dwellings.

In 2011, the insured was granted planning

permission to develop a total of six dwellings at

the property and obtained a title insurance policy

to provide cover for access rights for all six.

The property was also burdened by restrictive

covenants limiting development of the property

to two dwellings, and the policy also provided

cover in this respect.

When the insured began work on the

development of the site he was contacted by a

solicitor acting for the owner of neighbouring

land, who owned the access way used by

the property. He raised a number of queries

regarding the proposed development, including

the use of the access road for six properties

rather than two. The insured duly notified us of

a potential claim against the policy.

How did First Title approach the situation?

We arranged for the insured’s solicitor to

correspond with the neighbour’s solicitor, who

responded with a without-prejudice offer to vary

the right of access to allow the development of

six houses in return for a financial settlement.

We then obtained a report from a chartered

surveyor, who advised that based upon

the valuation of the insured’s property, the

financial offer proposed to vary the right of way

represented good value.

What was the outcome?

We agreed to the insured entering into a financial

settlement with their neighbour, the cost of which

was met under the terms of the policy.

In addition, we paid all legal costs incurred by

the insured’s solicitor in drafting, agreeing and

registering the revised easement.

Claims Case Study:

Becky Morgan

Claims Team Manager

AccessFIRST COMMENT

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First Title Insurance plc is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. First Title Insurance plc is registered in England under company number 01112603. Registered office: First Title Insurance plc, ECA Court, 24-26 South Park, Sevenoaks, Kent TN13 1DU.