The Spinney, the Transfer Plan and the 1958 Covenant
In 2019, Rosalind sold 40 acres of her farm, Highfield, to Tobias. The transfer was drafted by Tobias's solicitor. Clause 2.1 transfers 'the land shown edged red on the plan annexed hereto, being part of the land registered under title number SY123456'. The plan shows a red line that excludes a 0.8-acre spinney. Clause 2.2, however, transfers 'all other land in the Seller's title not otherwise disposed of'. The transfer was registered, and HM Land Registry issued a new title plan that follows the red line, excluding the spinney. Tobias has since built a barn on the spinney, believing it was included. Rosalind says the spinney was always intended to be retained to give her access to her retained land, and that the plan was a drafting error. She has applied to the court for rectification. Meanwhile, a 1958 conveyance of the retained land contains a covenant 'not to use the land for any purpose other than as a private garden or pleasure ground'. Tobias wants to use the barn for holiday lets.
1. How should the court construe clauses 2.1 and 2.2? Which prevails, the plan or the words?
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Construction is objective: what would a reasonable person with the background knowledge understand the parties to have meant? The transfer has two descriptions. Clause 2.1 transfers the land edged red on the plan; the plan excludes the spinney. Clause 2.2 transfers 'all other land in the Seller's title not otherwise disposed of'. The plan is incorporated into the deed and is the primary description.
The words 'not otherwise disposed of' are a residual sweeping-up phrase, typically intended to catch small strips and gaps, not to reverse an express exclusion. If clause 2.2 were read literally, it would include the spinney, creating a conflict. The court would prefer the specific over the general. The factual matrix - that Rosalind retained land and needed access - supports the plan. But the court will not rewrite the deed; if the plan is clear, the spinney is excluded. The 'all other land' clause may be read as subject to clause 2.1, so it cannot include land specifically excluded. The registered title plan follows the red line, which is consistent.
Tobias may argue that clause 2.2 is a separate operative transfer, but that would produce the odd result that the transfer both excludes and includes the same land. The more coherent reading is that clause 2.2 catches only land within the red line that is not otherwise described.
2. What must Rosalind prove to obtain rectification of the transfer, and how does the fact that Tobias's solicitor drafted it affect the analysis?
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Rectification is different from construction. Rosalind must show a common intention, objectively ascertained, as to the terms of the transfer, and that the transfer as executed failed to give effect to that intention (Chartbrook v Persimmon [2009] UKHL 38; FSHC v GLAS Trust [2019] EWCA Civ 1361). If the mistake was unilateral, she must show that Tobias knew of the mistake and did not correct it, or that his conduct was unconscionable (Riverlate Properties v Paul [1975] Ch 133).
The fact that Tobias's solicitor drafted the transfer is relevant. It may make it easier for Rosalind to show that Tobias knew of the intended exclusion, but it also means Rosalind may have relied on the draft. The standard is high; rectification is discretionary. The court will consider delay, prejudice to Tobias (who has built a barn), and the position of third parties. If rectification is granted, the register can be altered under Schedule 4 to the Land Registration Act 2002. Tobias may have a claim for indemnity under Schedule 8 if he loses title through no fault of his own, but the no-indemnity rule may apply if he contributed to the mistake by not checking the plan.
A claim in professional negligence against Tobias's solicitor is a separate matter and does not assist Rosalind directly.
3. Does the 1958 covenant prevent the holiday-let use of the barn? Consider the interpretation of 'private garden or pleasure ground' and the effect of the planning use class.
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The 1958 covenant restricts the land to a 'private garden or pleasure ground'. A barn used for holiday lets is a commercial use, not a private garden. The fact that the barn is on the spinney does not help if the spinney is subject to the covenant; the burden of a restrictive covenant can run with the land, but it must be registered as a charge to bind a purchaser of registered land for value. Check the charges register of Tobias's title. If the covenant is registered, it binds him. If not, it may have been overreached or lost on the 2019 transfer.
Assuming it binds, the use is a breach. 'Pleasure ground' might include a garden used for recreation, but not commercial holiday accommodation. The planning use class does not determine the covenant; the covenant is a private law restriction. Tobias could apply to the Upper Tribunal (Lands Chamber) under s.84 of the Law of Property Act 1925 to modify or discharge the covenant, but he would need to show that the restriction secures no practical benefit of substantial value to Rosalind, or that money would compensate. The fact that Rosalind wants access may make it harder.
The barn itself may also breach a separate covenant against erecting buildings, which should be checked.