‘T’ marks and Boundary Disputes

Associate solicitor Jessica Irwin, in our Dispute Resolution team, explains 'T' Marks on Title Plans in relation to Boundary Disputes.

The issue of ‘T’ marks on title plans has recently been considered by the Court of Appeal. The case concerned a boundary dispute between neighbours as to the implication of ‘T’ marks on the transfer plan when the properties had originally been built: whether the ‘T’ marks created a legal presumption of ownership of the boundary (rather than simply a common and well-established practice), to what part of the boundary the ‘T’ marks applied and whether you could look beyond the ‘T’ marks at the position on the ground to determine the ownership and positioning of the boundary.

The Court of Appeal held that ‘T’ marks do not create a legal presumption of ownership of a boundary but are simply one of various matters to be taken into account when interpreting a conveyance.

Clarity of Transfer

In this case, the parties disagreed about whether the transfer was sufficiently clear as to the land that had been conveyed.  If it was, the Court should look no further than the transfer (as stated in many previous authorities), and therefore the ‘T’ marks on the plan.  If it was not, the Court could look at other evidence such as topographical features on the ground.

The Court concluded that the transfer and plan were not sufficiently clear and did not accurately reflect what had actually been built.  Consequently, extrinsic evidence could be used to ascertain where the boundary should be.  In this case, the result was that the ‘T’ marks meant nothing.

This is perhaps a little surprising when viewed in conjunction with the express covenant in the transfer in this case to maintain the fence marked with a ‘T’.  Did the Court of Appeal really mean to say that a party could be responsible for maintaining a fence whilst not in fact owning it or the land upon which it was sited, so that a party would effectively have to trespass on their neighbour’s land to carry out the necessary maintenance?

Alternative Conclusions

The alternative (and possibly the more accurate, albeit no less surprising) conclusion to be drawn from this particular decision is that the ‘T’ mark only applied to part of the boundary, rather than its entire length.

This is likely to cause much confusion to conveyancers when advising purchasers, who generally advise that ‘T’ marks identify ownership of the whole of a boundary feature (and the land beneath) and consequently responsibility for its maintenance, not just part of it.

To how much of the length of the particular boundary and to which part of it will the ‘T’ mark apply?  Should there be multiple ‘T’ marks at regular intervals?  If so, how regular?  This conclusion seems to be fraught with difficulties.

Outcome

If the transfer/ plan are not sufficiently clear as to the land that is being conveyed, whilst the ‘T’ mark will be considered, it will only be one of the various considerations.  In those circumstances, it will come down to the intentions of the original contracting parties, by looking at the position on the ground and considering the evidence of those original parties if they are still around.

In this particular case the type of fencing was different along the rear portion of the boundary than at the front (and there was no longer any physical fencing at the front) and the Court decided on the evidence that the original parties had only intended the ‘T’ mark to apply to the rear portion of the fence.

It could be said that the Court of Appeal had an opportunity to bring welcome clarity to the meaning and implication of ‘T’ marks.  Instead, the decision is likely to have caused more confusion and is unlikely to assist in preventing such disputes in the future.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

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