REF/2006/0848

 

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

SEDGEMOOR DISTRICT COUNCIL

APPLICANT

 

and

 

1. JOAN ROBERTS
2. MARK SAVILL

 

RESPONDENTS

 

 

 

Property Address: Land and Building on the north side of 1 Salmon Parade, Bridgwater, Somerset

Title Number: ST244704 and ST244759

 

 

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

 

 

Sitting at: Exeter Employment Tribunal

On: 17 September 2007

 

 

Applicant Representation: Solicitor

Respondent Representation: In personl

 

 

___________________________________________________________________________­

 

 

 

1.      For the reasons given below, I shall direct the Chief Land Registrar to deal with the application of the Applicant for first registration of the property as if the Respondents had not objected to that registration and reject the application of the Respondents for first registration of the garage on the grounds of adverse possession.

 

2.      In essence, my reasons for coming to this conclusion are that although I accept almost all the evidence of the Respondents, I consider that prior to about 1997, and certainly prior to August 1994, the First Respondent did not have the necessary intention to possess the garage.

 

3.      The dispute concerns a small lock up garage behind 2 Eastover, Bridgwater. The evidence of the First Respondent, Miss Roberts, is that she is a photographer. She used to live in Essex, but in late 1993 she decided to try to buy a retail photographic business at 6 Eastover from the then owner, a Mr. Albrow. She negotiated terms of purchase which involved Mr. Albrow remaining as tenant of that property and indeed remaining in occupation of the property until the purchase price for the business had been paid in full by instalments over several months. Miss Roberts moved to Bridgwater in January 1994 and started to share the premises at 6 Eastover with Mr. Albrow.

 

4.      At this stage she discovered that the garage behind 2 Eastover was open to the elements and was used as a toilet and sleeping area by vagrants. She found this unacceptable and unpleasant especially in the dark, as she parked her car in front of it, and had to pass it regularly. There was also evidence of a fire which had burned through floorboards above the garage, and she was concerned that it could be a hazard for children. She made enquiries of neighbouring shops and of the Applicant, but could not find out who owned it or find anybody else to take responsibility for it.

 

5.      It would seem that her enquiries did not reach the right ears in the Applicant’s offices, as the Applicant was in fact the freehold owner of the garage, having purchased it with other land in 1984. The garage had been locked up at that stage, and was still locked up, as Mr. Mander, the Applicant’s senior valuer, gave evidence, when he had visited the property in 1992. It would appear to have been some time after that and before January 1994 that the garage had been broken into and misused. The Applicant had intended, when it purchased the property, to redevelop it, but that had fallen through, and apart from two unsuccessful efforts to let the garage in 1992 and 1993, it remained unvisited and neglected. Indeed, nobody from the Applicant had inspected the garage between 1992, or possibly April 1993, and 2005.

 

6.      After failing to get a response from the Applicant in January 1994, she decided to clean and secure it to prevent further use by vagrants or children. As she states in the letter dated 30 October 2006 which has been treated as her Statement of Case, at that time, her only intention was to clean and secure the area. Her Statement of Case continues “It was only when I became aware of the law of Adverse Possession that I checked to see if the lock-up was registered (in 1999) and discovered that it wasn’t. By this time Mr. Savill had started to share its use for storage purposes, so we continued to occupy it with the intention of applying to register it this year, 2006.”

 

7.      Apart from verifying this Statement of Case as true, no witness statements were put in at all by the Respondents and they stated that they did not intend to call any evidence. Some evidence was given at the hearing, however, by Miss Roberts and by David Onslow, a new witness whom I permitted the Respondents to call.

 

8.      At the hearing, Miss Roberts stated that she saw it as her right and duty to secure the garage against vagrants, and to clean it. Once it was secured she saw it as a place where she could store things. When she moved in to share 6 Eastover with Mr. Albrow in January 1994, there was some old furniture that she wanted to dispose of, with Mr. Albrow’s agreement. That furniture was moved to the newly cleaned and locked garage about a month after she moved in. It does not seem to have been intended that it should be stored there indefinitely. Rather it seems to have been a staging post on the way to its being got rid of entirely. However, the only other item which appear to have been stored before about 1997 was some wood belonging to Mr. Savill, which he had acquired to use in a property he was doing work on and which was put in the garage, according to her, about one month after the furniture. Mr. Savill gave no evidence as to this, and I am not satisfied that the wood was placed in the garage as early as Miss Roberts claimed. Her letter of 31 October 2006 only states that by 1999 Mr. Savill had started to share the use of the garage for storage purposes, which is a strange way of putting it, if he had been doing so from within a couple of months of Miss Roberts’ securing the garage. Also, if it was needed for a property on which Mr. Savill was working, it is strange that it was still there some years later, with no explanation offered for this, beyond a reference to its needing to dry out.

 

9.      Evidence was also given by Miss Roberts and by Mr. Onslow as to its more extensive use from 1997 onwards, which I do not need to set out in detail and which I accept, but there was no suggestion that anything but the wood and furniture was stored there before 1997. The furniture, Mr. Onslow stated, had largely gone by the time he appeared on the scene.

 

10.  By way of background, the sale of the business to Miss Roberts had been completed by August 1994. She had deliberately excluded the lease from her purchase and the area had declined in value and the rent was too high, and by 1995 she had found cheaper premises at 2 Eastover. These did not include the garage behind it, and she had not declared, and indeed never declared, her occupation of it for rates purposes. In evidence, she stated that she did not regard herself as occupying it for business purposes. In 1997 she sold her business to Mr. Onslow on similar terms to those under which she had acquired it, remaining in part occupation until 1999, with the result that Mr. Onslow did not appear as the occupant and start paying rates until 1999.

 

11.  Miss Roberts then moved her photography business elsewhere, but she, Mr. Savill and Mr. Onslow all used the garage for storage, in Mr. Onslow’s case until he left 2 Eastover in October 2005.

 

12.  In March 2006, Mr. Mander received a telephone call from the Council’s Environmental Health section requesting access to lay bait due to a rat problem. Mr. Mander had no knowledge of the history of the garage over the previous 12 years. He could not find the key to the padlock that, without his knowledge, had disappeared in 1992/3. He therefore arranged for the locks to be changed in the belief that it was still the old council padlock. This was done. Within a short time, on Friday 17 March 2006, Miss Roberts found that the locks had been changed, and had no idea who was responsible for this. She told Mr. Savill who contacted the police, who discovered that the change of locks had been seen by one of their officers, who had been told that the person changing the locks was from the Applicant.

 

13.  Miss Roberts had the locks changed again and put up a sign saying that the garage was private property and giving a mobile telephone number on which she could be contacted. By evening that sign had been ripped down. On Sunday 19 March 2006 she returned and found the locks still in place, and put up another sign. She went again on Tuesday 21 March and found that the locks had again been replaced (this had been arranged by Mr. Mander when he was told that the first new lock had been removed). The sign she had put up had again been taken down. To prevent anybody obtaining access, she then put superglue in the lock. Eventually in the course of that week, she spoke to Mr. Mander and discovered that it was the Applicant which had been changing the locks and that the Applicant claimed to own the garage. On Friday 24 March 2006, she had the lock changed again, and her lock has remained in place since. On 4 April 2006 the Applicant applied by an application dated 3 April 2006 for first registration of its title. The Respondents replied by applying for first registration of their alleged possessory title.

 

14.  There have been a serious attack on the credibility of Miss Roberts’ evidence, based upon alleged discrepancies and her conviction in an unrelated matter for forging a document. She has admitted the forgery and has explained that she now regards it as a very foolish thing to have done. She derived no personal benefit from it and it was done to assist a friend in messy matrimonial proceedings. Nevertheless, I must regard her evidence with more suspicion that would normally be the case.

 

15.  I do not, however, find anything particularly self-serving in her evidence. She candidly admits that her only intention initially in securing the garage was to prevent its misuse and possible danger to children, not to use it for herself, and she has made no attempt to suggest, as she could easily have done given the absence of any evidence from the Council on the point, that it was used particularly extensively from the beginning or that she was aware of the law of adverse possession from the start.

 

16.  The Applicant has relied on the rating records and on the contemporary evidence that Mr. Albrow was still there and paying rates until August 1994, and that he only sold the business at that stage. I find Miss Roberts’ explanation of that, by reference to their joint occupation of 6 Eastover and his remaining as lessee, perfectly plausible, and I accept it. The absence of documentation relating to her purchase is unsurprising given the lapse of time.

 

17.  Apart, therefore, from the evidence as to when Mr. Savill started to store wood in the garage, I accept the evidence of Miss Roberts. I find her evidence on that one point too vague to satisfy me, particularly in the absence of any witness statement from Mr. Savill, that this was done as early as February or March 1994, and I consider that it was more likely to have happened at some stage after April 1994.

 

18.  The legal question I have to determine is whether the Applicant’s title was statute barred by the date of its application, 4 April 2006. It seems to me that by padlocking the garage doors, to which she had the only key, Miss Roberts took physical possession of the garage in January 1994. This is so, although there was another locked entrance in a side passage to which neither she, nor, so far as the evidence goes, the Applicant ever had a key. It further seems to me that the locking of the doors with a new padlock was sufficient notice to the true owner that possession had been taken of the garage by a third party which is sufficient for the purposes of the law of adverse possession.

 

19.  It follows that Miss Roberts had factual possession of the garage from about the end of January 1994, more than 12 years before the application by the Applicant to have its title registered and that the Applicant would have had sufficient notice of that fact had its representatives come to the property.

 

20.  However, in addition to factual possession, she must have had the requisite intention to possess, that is, as stated by Slade J in Powell v. McFarlane (1977), 38 P&CR 452, at p.472, “the intention in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.” I do not consider that the fact that Miss Roberts confirmed that she would have handed the property back to the Applicant had it claimed it at a time when she could not contend that she had a possessory title meant that she lacked the requisite intention. In Pye v. Graham, [2002] 3 All ER 865, the House of Lords confirmed that the necessary intention could co-exist with a willingness to pay for the occupation if asked. It appears to me that it can also co-exist with a willingness to hand the property back to the paper owner if asked. I can see no difference in principle between that and a willingness to become the paper owner’s tenant or licensee and I note that Lord Hutton was of the same view in Pye v Graham at para.78 ([2002] 3 All ER at p.888).

 

21.  What does appear to me to preclude time from running in this case until, at the earliest, around 1997 is that Miss Roberts was not intending to use the garage so far as she was able as her own initially. Her intention was to secure it from vagrants and children, in effect standing in for the true owner. Her possession at that stage was not adverse to the Applicant but for it and to its advantage. Further, I do not consider that that intention changed just because she used the empty garage as a convenient temporary storage place for unwanted furniture on the way to being disposed of. No right of action to claim possession from her arose at that stage as she did not have the intention to possess adversely to the true owner and thus time under the Limitation Act 1980 did not start to run. I also do not consider that, at least initially, Miss Roberts’ intention changed just because she allowed a friend to store some wood there en route to a property for which it was to be used. It is unnecessary to make any findings as to when her intention changed, as at some point it clearly did, since whenever it was, it was too late to establish 12 years adverse possession before the Applicant applied for registration of its title.

 

22.  For completeness, it has been asserted by the Applicant that the changing of locks in March 2006 interrupted the Respondents’ adverse possession, so that time began to run again when Miss Roberts changed the locks for the last time in March 2006. It is unnecessary for me to come to any conclusion on the point, but my impression is that the Applicant had not taken effective possession of the garage by its actions. It remained full of the Respondents’ effects including a boat. It appears to me that if the Applicant had commenced possession proceedings against the Respondents after changing the locks and before they were changed back, it would be inconceivable that a court would have held that the Applicant had no cause of action in possession at that point. My view therefore, although I do not base my decision on it, is that the action of the Applicant in changing the locks did not stop time from running against them on the facts of this case.

 

23.  Finally, I note that when this decision was almost completely drafted on the morning of 17 September, Miss Roberts telephoned the office of the Adjudicator to indicate that she was withdrawing her objection. As this was not in writing, did not clearly come from both Respondents and did not clearly relate to their application to register a possessory title, and as the points raised are of some general interest, I decided to complete and issue the decision as drafted. This in no way affects the Respondents’ liability for the Applicant’s costs, which could not be affected by this very late decision to withdraw. The date on which it is issued reflects my absence from the office until 19 December.

 

 

Dated this 19th day of September 2007

 

 

 

By Order of The Adjudicator to HM Land Registry