REC/2008/0007

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of aN APPLICATION UNDER SECTION 108

BETWEEN

MARTIN LEE TINGLE
APPLICANT
and

CHRISTOPHER CRUTCHLEY
SUSAN VALERIE CRUTCHLEY
RESPONDENTS

Property Address: 7 Charlton Fold, Woodley, Stockport SK6 1NZ

Title Numbers: MAN35522 and GM946336

Before: Mr Rhys sitting as Deputy Adjudicator to HM Land Registry

Sitting at: AIT, Piccadilly Plaza, Manchester

On: Wednesday 2nd and Thursday 3rd June 2009

Applicant representation:	Mr Lander of Counsel instructed by Messrs Thompson & Cooke Solicitors
Respondent representation:	Mr Clark of Counsel instructed by Messrs Castles Solicitors

D E C I S I O N

KEYWORDS – Common mistake – rectification of instrument – claim by successor in title – Section 108(2) Land Registration Act 2002

CITATIONS – 
Snell’s Equity (31st Ed) at 14-14:
Joscelyne v Nissen [1970] 2 QB 86 at 98 
Boots the Chemist Ltd v Street (1983) 268 E.G. 817

The Originating Application

1.	This is an originating application to the Adjudicator pursuant to Section 108(2) of the Land Registration Act 2002 (“the Act”), claiming rectification of a Transfer dated 26th October 2005 and made between Christopher Crutchley and Susan Valerie Crutchley (1) and Properties & Refurbishment Limited (2) (“the Transfer”). It is alleged that the Transfer does not give effect to the common intention of the parties due to an error in reducing that intention into writing – in other words, that the document contains a mistake. Under Section 108(2) of the Act the Adjudicator has the following powers, namely:
	“Also, the adjudicator may, on application, make any order which the High Court could make for the rectification or setting aside of a document which –
		(a)	effects a qualifying disposition, or 
		(b)	is a contract to make such a disposition…”
	Accordingly, the Adjudicator has the same power to rectify a document as the High Court.  I heard the case over a period of two days, having had a very useful Site View on the morning of the first day.  I heard oral evidence from Mr Tingle, the Applicant, and from Mrs Diane Parums, a director of Properties & Refurbishment Limited (“the Company”), the purchaser under the Transfer, and Mr Tingle’s predecessor in title as owner of the property now known as 7 Chorlton Fold, Woodley. I also heard oral evidence from Mr Crutchley, one of the Respondents, and one of the vendors under the Transfer.

Rectification – the Law
2.	The principles upon which rectification is granted are not controversial - at least, as far as these parties are concerned - and are usefully summarised in this passage in Snell’s Equity (31st Ed) at 14-14:
	“The general rule is that rectification will not be granted unless there has been a mistake of expression which is common to all parties.  In general, a claim will succeed only if it is established, first, that there was some prior agreement between the parties; secondly, that this was still effective when the instrument was executed; thirdly, that by mistake the instrument fails to carry out that agreement; and fourthly, that if rectified as claimed, the instrument would carry out the agreement.”
	As regards the requirement that there must be some prior agreement between the parties, it is enough if there is a common intention in regard to the particular provision of the agreement in question, continuing up to the date of the written instrument, together with some “outward expression of accord” – see Joscelyne v Nissen [1970] 2 QB 86 at 98, cited in the same passage in Snell.  Four other points may be made in connection with a claim for rectification.  First, it represents an exception to the normal rule that direct evidence of contractual intention is inadmissible.  Secondly, the fact that the prior agreement may not itself be enforceable – due to a lack of a signed memorandum, for example – is no objection.  Thirdly, although the claim must be established on the usual civil standard of proof, namely on the balance of probabilities, a court will require strong evidence to be satisfied that the document signed by the parties does not in fact represent their true intentions.  The phrase “strong irrefragable evidence” is conventionally used when discussing this issue, and although the precise meaning of the expression is a little opaque the general sense is not.  Having regard to the terms of Section 108(2) of the Act, the law to be applied is that which would be applied if the claim had been made in the High Court.  Fourthly, although the Applicant was not himself a party to the Contract or the Transfer, this is not a bar to his claim – Boots the Chemist Ltd v Street (1983) 268 E.G. 817.

The relevant history
3.	The relevant history of the matter is as follows.  In 2003 Mr and Mrs Crutchley purchased a large plot of land at Chorlton Fold, including a barn and a terrace of houses that had originally been a farmhouse and associated farm buildings.  These buildings date from the 18th Century and over the years have been surrounded by residential development.  This land is comprised within Title Number GM946336.  Chorlton Fold is a narrow vehicular road which runs more or less north-south.  At its northern end it comes to a dead end, terminating at an iron bollard which marks the start of a public footpath (“the Footpath”).  Shortly to the north of that bollard the Footpath crosses a stream (“the Stream”) which is culverted at this point.  To the west of Chorlton Fold and the Footpath lies the Applicant's property, now known as 7 Chorlton Fold but at one stage known as Shippon Cottage – a shippon being, I believe, a local name for a cowhouse.  To the east of Chorlton Fold, and on the opposite side of the Footpath, lies the Respondents' property, now known as Chorlton Fold Barn (“the Barn”).  At present, the Footpath is flanked on both sides by new stone walls.  When the Crutchleys purchased the site, there was a subsisting planning permission which permitted the conversion into residences of the two remaining agricultural buildings, namely Shippon Cottage - at the northern end of the terrace of buildings which included the farmhouse - and the Barn, on the opposite side of Chorlton Fold to the Shippon.  It was originally the intention of Mr Crutchley - who is a builder by trade - to develop Shippon Cottage for his own use, and to sell off the Barn.  However, for reasons of his own he decided to retain the Barn and to sell Shippon Cottage.  

4.	The Crutchleys put Shippon Cottage on the market with Estate Agents as a development site.  Mr and Mrs Parums made an offer and each side instructed solicitors - Castles for the Vendors, and Aboudi Bradley for the Purchasers. A draft contract was sent out in September 2005 and exchange of contracts took place on 18th October 2005, with completion on 26th October 2005. Mr and Mrs Parums acquired the property in the name of the Company, but nothing turns on this. The Company carried out the redevelopment of Shippon Cottage in accordance with a new planning permission, and on 24th August 2006 sold the completed project to Mr Tingle, who became the registered proprietor of Title No MAN35522 on 7th December 2006.  The property now bears the description 7 Chorlton Fold and I shall refer to it as “the Property”.  In the meantime Mr Crutchley had redeveloped the Barn as his own residence.  For what it is worth, these developments have been carried out with great skill and sensitivity for the locality, with considerable reliance on local stone.  

The appearance of the site
5.	Before explaining how the dispute between the parties has arisen, I ought to describe the layout of the site in more detail.    As I have said, the Property is situated at the northern end of a row of dwellings which lie on the western side of Chorlton Fold itself.  Immediately to the north of the flank wall of the dwelling constructed on the Property there is a hard surfaced area used for parking ("the Parking Area").  Access to the Parking Area is obtained from Chorlton Fold.  To the north of the Parking Area the ground drops away fairly steeply into the Stream, which runs in a north-west/south-east alignment.  The Stream is open at this point, but (as I have said) it flows into a culvert where it runs beneath the Footpath.  A one metre high stone wall runs from the bank at the top of the culvert, parallel to the Footpath (on its western side), past a metal lamp standard and then curves westwards to meet the north-eastern corner of the Parking Area.  Accordingly, this wall divides the Footpath and Chorlton Fold from the area to the north and east of the Parking Area, which slopes down towards the Stream.   On the opposite (eastern) side of the Footpath there is another 1 metre high stone wall which encloses the Respondent's property, the Barn. There is a gate in this wall giving access to the Footpath.   The area in front of the Property and the Parking Area, to the east of the wall surrounding the Respondents' property, and to the south of the bollard at the entrance to the Footpath, is hard surfaced and forms part of Chorlton Fold itself.  Chorlton Fold is at this point is privately owned and is currently comprised within the Respondents' registered title.

The Contract and Transfer
6.	I shall now consider the terms of the contract dated 18th October 2005 ("the Contract") and the Transfer.  Prior to the sale to the Company, the Property was as I have said registered as part of a larger Title, namely GM 946336.  The Sales Particulars did not identify the proposed boundaries of the development site with any precision.  There was some discussion between the parties' solicitors prior to exchange of contracts relating to the proposed boundaries.   However, the first reference to the boundaries is made in a letter from Castles to Mr Crutchley (their client, one of the vendors) dated 16th August 2005.  This raises the following question:
“Enclosed is a copy of the Land Registry Plan on which I have drawn the boundaries to the plot edged red, and also shown an area hatched red.  Please advise as to whether the area hatched red is to be included in this sale to the Purchasers?” 
Although there is no copy of the plan in the file, it seems reasonably clear that the plan is the same as the plan which eventually became annexed to the Contract and, with the addition of lettering, to the Transfer.  The Transfer plan shows the northern boundary of the Property as being formed by the stream.  The red hatched area forms a triangular piece of land, lying between three marked points.  The base of the triangle lies between points "B" and "C", Point C being the south-eastern extremity of the Property (immediately adjacent to the corner of the dwelling itself, where it abuts Chorlton Fold).  Point B lies on the northern boundary of No 7 - at some point along the course of the Stream.  The line C-B runs parallel with the frontage of the dwelling and the western edge of Chorlton Fold.  The hypotenuse of the triangle runs between Point C and Point "X", which lies to the east of Point B and probably equates to a point close to where the Stream runs under the Footpath.  The red hatched area therefore occupies part of Chorlton Fold itself - immediately in front (to the east) of the house and Parking Area and south of the bollard - and also the area between the stone wall built along the west of the Footpath and the Stream.  I shall refer to the area firstly described as “the Forecourt”, and to the area behind the wall, and sloping down towards the Stream, as “the Garden Area”.  This red hatched area is the area in dispute in this case - the question being whether it was included in the land intended to be transferred by the Respondents to the Company.

7.	A telephone attendance note dated 25th August 2005 has been produced, recording a conversation with Mr Crutchley (doubtless in response to the question raised in the letter dated 16th August 2005 referred to above).  It reads “The hatched area the purchasers will not own but will have access across it at all times”. However, when he came to give his oral evidence, Mr Crutchley very fairly accepted that as far as he understood it, the red hatched area only represented the part of Chorlton Fold that lay between the lamp standard and the south-eastern corner of the Property: i.e the Forecourt.  His concern at the time was to ensure that this part of the carriageway in front of the Property and leading up to the Footpath - which was always intended to remain in his ownership - should not be obstructed in any way.  It was also his understanding that Point X, as shown on the Transfer plan, identified the position of the lamp standard, not the point where the Stream went under the Footpath (several metres north).  On 7th September 2005 Castles wrote to Aboudi Bradley, the Company’s solicitors, enclosing the intended contract plan.  The letter includes this passage:
“The area shown hatched red is to incorporate rights of vehicular and pedestrian access to the property, but will not allow the parking of vehicles thereon.”
I comment that this statement is consistent with an understanding that the red hatched area represents the Forecourt, but not the Garden Area (consisting of rough ground situated behind the 1m high stone wall). After further discussion, the draft transfer was returned by Castles, resulting in a letter from Aboudi Bradley  dated 10th October 2005 which contains this passage:
“We understand that your clients are going away on holiday.  Our clients are quite happy to undertake not to carry out any works of a structural nature to the building until such time as your clients return.  They do, however, require access to the property as soon as possible with a view to plans being drawn up by their architect.  They may also need to carry out some works to the garden area by the stream but this work will not, of course, affect your clients property.
One final point.  You have added certain covenants two of which refer to an accessway coloured yellow.  The plan provided with the contract does not show any accessway coloured yellow.”
The plan eventually attached to the Transfer does include an area coloured yellow, being the part of Chorlton Fold which runs as far as the southern edge of the Property.

8.	On 17th October 2005 Aboudi Bradley wrote another letter, following on from their earlier letter and a telephone conversation with Mr Handford, Mr Crutchley’s solicitor.  The relevant paragraph reads as follows:
	“So far as the construction of the boundary wall is concerned, we attach a copy of the proposed deed plan.  It is our client’s understanding that the wall is to be built between the points marked Y and just beyond the X showing the lamp post.  In case it is of assistance, we enclose a larger scale plan showing the position of the new wall.  Unfortunately it is a little difficult to relate this plan to the proposed deed plan.  We understand the position of the new wall has been agreed with your clients and, indeed, they have already provided the foundations for the new wall.”
	Two plans were enclosed with this letter.  First, a modified version of the Transfer plan.  This shows points B and X in the position I have referred to in Paragraph 6 above.  It also shows a new point “Y”, approximately half way between points B and C.   As the letter states, the purchaser’s belief was that the new wall would be built between point X – identified as the lamp post – and point Y.  The other plan enclosed is an extract from the planning permission plan.  This shows a much more detailed view of the site.  Immediately to the west of the Footpath the letter X has been drawn, and a thick black line is shown running past X to curve round towards the west and terminate at the front of the Parking Area.  A handwritten note has been added as follows: “New wall from parking bay to boundary, alongside footpath, to match Mr Crutchley’s on other side of footpath.”  Mrs Parums told me that she had added this to the plan at the time, and I believe her.  I shall deal with the implications of this letter in due course, but I pause to observe that there is manifestly a confusion as to the position of point X, which the solicitors and their respective clients believed to represent the position of the lamp post.

9.	Contracts were exchanged on 18th October 2005, and the material parts of the Contract are as follows.  The property sold is described as “All that freehold property shown edged red on the Plan annexed and known as Shippon Cottage 7 Chorlton Fold Woodley Stockport Cheshire SK6 1NZ”.  The plan attached to the Contract is a version of the Transfer plan, with an area edged red and an area hatched in red, but there are no points identified by letters.  I have seen the original of the contract signed by the purchasers.  The Contract provides that the Transfer shall contain certain rights, namely:
“15.	a)	The right for the Buyer in common with all other persons having the like right to pass and repass  over such part of Chorlton Fold aforesaid  as is not hereby contracted to be sold for all purposes and at all times in connection with the use and enjoyment of the said property…………….
c)	The right to pass and repass over the area of land hatched red on the annexed Plan with or without vehicles subject to the payment of the cost of repairing and maintaining the said area hatched red
16.	The transfer between the parties will contain the following exception and reservation allowing the Seller and their successors in title to have the like right to pass and repass over such part of the forecourt fronting to the said property hereby contracted to be sold and hatched red on the annexed plan.”
                                                                                                               
10.	The transaction was completed on 26th October 2005.  Although there were further discussions between contract and completion with regard to various boundary issues, these did not relate to the land now in dispute.  The Transfer contains the same provisions as the Contract, but with the following material additions, namely:
		“Rights reserved
The Transferors and their successors in title reserve the ownership of and access to the iron lighting column shown marked “X” on the annexed plan”
		“Covenants
2	To keep open and free from obstruction the access way coloured yellow and to allow free access over the same at all times
3	To pay a fair and proper proportion of the expense from time to time incurred in cleansing maintaining repairing or renewing the said access way coloured yellow…”
	As I have said, the plan attached to the Transfer is marked with the letters A, B, C, D and X: the red hatched area lies between B,C and X; and the yellow coloured area occupies the whole of Chorlton Fold to the south of the Property, but not the area immediately in front of it (on the east).

11.	Before I consider the oral evidence, one or two points can be made about the Contract and Transfer.  First, there is clearly an underlying confusion about the identity of the red hatched area.  I have already quoted extracts from the correspondence which brings this out.  The terms of the Transfer make this confusion explicit.  Thus, there is a reservation of rights in favour of the Transferor of “the ownership of and access to the iron lighting column marked “X” on the annexed plan”.   Point X on the plan is situated at the extreme north-eastern corner of the plot (including the hatched area).  On the ground, this point must be close to where the Stream runs under the Footpath. The lamp standard, however, is several metres to the south of this point, much closer to the Parking Area and within the new stone wall.   This discrepancy had already been pointed out in the letter from Aboudi Bradley dated 17th October 2005 but nothing was done to clarify the position.  Furthermore, the fact that it was considered necessary to reserve the ownership of the lamp standard indicates that the parties considered that it would otherwise be situated within land to be transferred to the Company.  Secondly, the Contract plan is ambiguous.  There are two areas edged in red – the hatched area, and the larger area to the west, which is not hatched.  

The oral evidence 
12.	Mr Tingle was not, of course, a party to the Contract or to the Transfer, and cannot therefore give direct evidence of the intentions of the relevant parties.  However, he did give evidence with regard to the conduct of Mr Crutchley when this dispute first arose, and contended that he did not initially claim to have retained the ownership of the Garden Area, as opposed to the Forecourt. In particular, he drew attention to a letter of objection dated 14th March 2007, written by Mr Crutchley in opposition to the Applicant’s planning application of early 2007 which related to the extension of the Parking Area.  As appears from the plan submitted by the Applicant (referred to as Plan A in the Trial Bundle), the intention was to construct a parking area on the Garden Area, and in the process the south-western section of the stone wall would be removed.  The proposal therefore involved building on land which Mr Crutchley now contends was intended to remain in the Respondents’ ownership.  The objection letter does not, however, include any claim that the land belongs to the Respondents, although it does make the claim that the stone wall itself belongs to the Respondents and should not be tampered with.  Although there is an objection to the removal of part of the wall, there is no objection to the proposed construction on land within the ownership of the Respondents.  Furthermore, Mr Tingle has produced a document which he says was pushed through his letterbox, and which he believes was annotated by Mr Crutchley.  This followed a discussion between them on site in September 2006, which arose out of an objection by Mr Crutchley to the Applicant’s parking of vehicles on the Forecourt.  Following that discussion, Mr Tingle received the annotated plan.  This shows the area and is based on the plan sent under cover of the letter from Aboudi Bradley dated 17th October 2005 showing the line of the stone wall.  Someone has written the following words: “MARTIN You own everything etched blue”.  I have seen the original document, and there is an area cross-hatched in blue ink, which corresponds to the Garden Area.  Clearly, if this document emanated from Mr Crutchley, it would evidence his understanding – nearly one year after the date of the  Transfer – that the Garden Area was included in the land sold to the Company.

 13.	Mrs Diane Parums was also called to give evidence.  She was a party to the original transaction – albeit as a director of the purchaser company – and did give direct evidence as to the parties’ intentions. She had personally negotiated the sale with Mr Crutchley. Her evidence was to this effect.  She recalled several meetings with Mr Crutchley on site, prior to exchange of contracts.  On one particular occasion, they stood on or close to the foundations of the stone wall on the west side of the Footpath, near the lamp standard.  The construction of the stone wall was required as part and parcel of the planning permission relating to the Barn and the Property, and Mr Crutchley had already constructed the foundations before the sale to the Company.  According to Mrs Parums, in the course of this discussion Mr Crutchley stated, in terms, that the purchaser was required to construct the wall, on the existing foundations, and that the wall would represent the front (eastern) boundary of the plot.   Mrs Parums was in no doubt where the mutually intended boundary lay, namely along the line of the wall.  She was equally clear that the Forecourt – the area of Chorlton Fold to the south of the wall and to the east of the Parking Area – was not intended to be included in the plot, but that the purchaser would have rights of access over it. The reason for this was obvious, since otherwise the Parking Area could not be used.   

14.	Mr Crutchley denied that he had ever stated to Mrs Parums that the intended boundary followed the line of the new stone wall.  He accepted that there were meetings on site prior to the date of the Contract, and he accepted that he agreed with her that the purchaser would construct the stone wall on the existing foundations.  However, he denied that he had said that the stone wall would represent the intended boundary.  Indeed, he went further.  He said, in cross-examination, that he had told Mrs Parums that the boundary of the plot would include a strip one metre wide in front of the cottage and continuing northwards in a straight line until intersecting the line of the Stream.  This boundary line would mean that the entirety of the Garden Area would fall outside the land comprised in the sale to the Company. He also denied that he had annotated the plan referred to by Mr Tingle – pushed through his letterbox – and suggested that it might emanated from Mrs Parums.  

Conclusions as regards the oral evidence
15.	It will be appreciated from the above summary, that there are a number of direct conflicts in the evidence.  There is of course one striking conflict, the resolution of which is critical to the entire case.  I refer to the discrepancy between the evidence of Mrs Parums and Mr Crutchley as to the discussion regarding the boundary.  She says that they agreed that the stone wall fronting the Footpath would be the front (eastern) boundary of the plot – he says that they agreed that the boundary would be a line drawn one metre in front of the cottage and projected northwards to bisect the Stream.  In resolving this conflict, I draw attention to the fact that Mr Crutchley makes no reference in his witness statement to the alleged agreement as to the 1 metre boundary line.  Nor was this alleged agreement or discussion put to Mrs Parums in her cross-examination.  The first time it was mentioned was in the course of Mr Crutchley’s cross-examination.  Having observed both witnesses give their evidence, I have to say that I found Mrs Parums to be the more impressive.  Mr Crutchley was less than direct, for example his convoluted explanation for the letter of objection struck me as evasive and disingenuous.  On the other hand, Mrs Parums answered questions put to her with commendable frankness and clarity.  Although it was suggested that she had an axe to grind she is essentially an independent witness without any motivation to be untruthful.  I have concluded that wherever there is a conflict between her evidence and that of Mr Crutchley, I prefer her evidence.   I therefore find as a fact that there was a discussion between the vendor and purchaser, prior to the Contract, in which it was expressly agreed that the eastern boundary of the Property would be represented by the stone wall built to the west of the Footpath, and curving westwards (around the lamp standard) to terminate at the corner of the Parking Area.  There are other factors which support this finding, namely:
15.1	Inherent probability, since it is improbable that a purchaser – particularly a professional developer – would not insist on some clarity as to the boundary.  Mr Crutchley accepted that his 1 metre line was not marked out on the ground, so that the only apparent physical boundary on the ground was represented by the foundations of the stone wall.
15.2	Inherent probability, since it is improbable that the Company would have agreed to build the stone wall unless it was to be regarded as the boundary, and situated on the purchaser’s land.
15.3	The correspondence between Aboudi Bradley and Castles refers to the stone wall as a “boundary wall”. Although Mr Crutchley tried to put a gloss on this phrase – explaining that he understood boundary to mean a boundary between his land and the Footpath – I cannot accept that solicitors negotiating a conveyancing transaction could have used the expression “boundary wall” as meaning anything other than the proposed boundary between the land to be sold and the retained land.
15.4	I consider that Mr Crutchley’s conduct subsequent to the Transfer clearly indicates his understanding that the Garden Area was included in the land to be sold to the Company.  I find as a fact that he made the manuscript note on the plan posted through Mr Tingle’s letter box, indicating that the Garden Area belonged to Mr Tingle.  Not only does the handwriting look very like Mr Crutchley’s, but the word “etched” is used which he has used elsewhere in place of “hatched”.  Furthermore, there is no other explanation for the note, since it is not suggested that Mr Tingle is inventing the incident.  It is fanciful to suggest that Mrs Parums annotated the plan in 2006.
15.5	Both Mrs Parums and Mr Crutchley were agreed that the Forecourt Area was not intended to be transferred, but was to be subject to rights of way in favour of the transferee.
15.6	The confusion that I have already noted, as to the position of Point X on the Transfer plan, is consistent with an agreement that the stone wall would represent the boundary.  

The true agreement
16.	Accordingly, I conclude that there was an express discussion between Mr Crutchley and Mrs Parums with regard to the proposed boundary line, in the course of which it was expressly agreed that the stone wall would constitute the eastern boundary of the land comprised in the Transfer.  It was also agreed that the Forecourt Area would be retained by the Respondents, but subject to rights of way in favour of the transferee.  These were the common intentions of the vendor and purchaser as to which they reached an outward expression of accord. Was this common intention accurately reflected in the Contract and Transfer?   In other words, do either the Contract or Transfer or both documents contain an error?

The mistake
17.	Before deciding whether there is a mistake, I must first construe the Contract and Transfer, with particular regard to the description of the property comprised in the transaction.  With regard to the Contract, I have already drawn attention to the ambiguity, in the sense that the there are two areas edged in red, one of which is also hatched red.  In my judgment the natural meaning of the description is that the land edged in red – not edged and hatched in red – is intended to be included.  If the intention had been to include the area edged and hatched in red the description would have read accordingly: ““All that freehold property shown edged and hatched red on the Plan annexed ……”.    On this basis, the contract plan contains an error, since it excludes the Garden Area.  This error is repeated in the plan attached to the Transfer.  Indeed, the Transfer contains other, related. errors on its face.  First, there is an obvious confusion with regard to rights and reservations over the red hatched area.  The following right is granted to the transferee:
“The right to pass and repass over the area of land shown hatched red on the Plan with or without vehicles subject to the payment of the cost of repairing and maintaining the said area hatched red”
	However, the Transfer also contains a reservation in these terms:
	“The Transferors and their successors in title have the like right to pass and repass over such part of the forecourt fronting to the property hereby transferred and shown hatched red on the plan.”
Since the area hatched red was not included within the land sold to the transferee, it is otiose for the Transferors to reserve rights over it.  Equally, the reservation of “the ownership of and access to the iron lighting column marked “X” on the annexed plan” is otiose, if the area hatched red is excluded from the sale, since the point marked “X” is at the corner of the hatched area.  Having regard to the true agreement between the parties as to the identity of the property to be comprised in the Transfer, the plan attached ought to have distinguished between the Forecourt and the Garden Area.  As far as the Forecourt is concerned, this was to be made subject to rights of way in favour of the Transferee, but was to be excluded from the sale.  On the other hand, the Garden Area should have been included within the red edged (but not hatched) area, and Point X moved so as to more accurately denote the position of the lamp standard.  

Should rectification be ordered?
18.	I have made the following findings of fact.  First, there was an express agreement between Mrs Parums (on behalf of the purchaser) and Mr Crutchley (on behalf of the vendor) as to the intended line of the boundary between the property to be sold, and the property to be retained by the vendor.  This was a transfer of part of a registered title, and there was no pre-existing boundary feature.  It was obviously sensible to define the intended boundary line and this was done by express agreement.  There was accordingly an outward expression of accord as between them.  This pre-existing agreement or common intention continued up to the time of the Contract and the Transfer.  Neither document, for the reasons I have explained, accurately reflected the parties’ intentions as regards the ownership of the Garden Area and the line of the common boundary to the west of Chorlton Fold.   In the circumstances, all the necessary requirements are established, and in my judgment the Applicant has made out his case for rectification.  It seems to me that both the Contract and the Transfer should be rectified.   I do not think that the formulation of the amendments to the Contract and the Transfer would present any difficulty.  It may be that a new plan will have to be substituted, and the rights and reservations mentioned in them will have to be amended.  The parties indicated that if I decided that, in principle, rectification should be ordered, then they would attempt to agree the precise form of the wording to be inserted in the Contract and Transfer, and any deletions that may be necessary.  I shall therefore allow the parties a period of 21 days from the date of this Decision within which to agree the amendments.  Once agreed they should the lodge the proposed minute of order.  If no such agreement is reached within the time stipulated, I shall make an order for rectification in such form as I consider appropriate.  I also invite both parties to lodge written submissions on the appropriate costs order, having regard to the findings that I have made.
Dated this 26th day of June 2009

By Order of The Adjudicator to HM Land Registry