Boundary Problem Solved by Restrictive Covenant


Published: 20-07-2018 | Updated: 12-09-2018

Article Summary

This article shows the importance that can be attached to matters contained within the Land Registry documents that can be easily overlooked. A dispute was resolved using a Boundary Search. One of the documents looked at was a Transfer Deed which contained a personal covenant made between the transferor and transeree with regard to the erection of a fence along the boundary, which was marked with precision for identification purposes on a plan attached to the Deed.


The Problem

X and Y own land that adjoins Z's land. The fence between them had blown down during a storm and needed to be repaired. This was the boundary fence. Z asked X and Y to repair it, but X and Y thought it was jointly owned and agreed only if Z contributed one-half of the cost thereof.


X and Y applied for a Boundary Search. The B section of the Title Register contained a reference to a Transfer Deed creating a personal covenant when X and Y purchased their property. A copy of the Transfer had been retained by the Land Registry, and was included with the search.

The Deed contained the following clause:

1    The following are details of the personal covenants contained in the Transfer dated 1 March 1993 referred to in the Proprietorship Register:

"The Transferees hereby jointly and severally covenant to erect a fence between the points marked A and B on the plan annexed hereto within one month from the date hereof to such specification as the Transferees may reasonably require and thereafter to maintain the same in good repair."

The covenant clearly stated that the Transferees, i.e. X and Y, shall erect a fence and thereafter maintain the same.

Boundary Search


Solution

The personal covenant was made by X and Y's predecessors. However, they had given an indemnity in respect of the same at the time of their purchase, which their solicitor confirmed, and were therefore solely liable to maintain the fence at their own expense.


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