REF/2008/0793

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

BETWEEN

LEO JOHN EVERSHED

 

APPLICANT

 

and

 

(1) PAUL WILLIAM SMITH

and

(2) CAROL JEAN SMITH

 

RESPONDENTS

 

Property Address: Fairview, Evershed Court, Telscombe Cliffs, Peacehaven

Title Number:ESX284384

 

Before: Mr Michael Michell Deputy Adjudicator to HM Land Registry

 

Sitting at: Victory House, Kingsway, London

and 8 Lewes Road, Newhaven, East Sussex

 

On: 15th, 16^th and 17th December 2009

And 15th January 2010

 

Applicant Representation: Caroline Shea, counsel, instructed by Dakers Solicitors

Respondent Representation: Kevin Pain, counsel, instructed by Edward Harte

 

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

ADVERSE POSSESSION – WHETHER RESPONDENTS IN POSSESSION – REQUEST FOR OPTION TO BUY- WHETHER ACKNOWLEDGEMENT OF TITLE- RECTIFICATION OF REGISTER

 

 

 

Cases referred to

 

Powell v. McFarlane (1977) 38 P & CR 452

J.A. Pye (Oxford) v. Graham [2003] AC 419

Edgington v. Clark [1964] 1 QB 367

London Borough of Lambeth v. Archangel (CA 1.12.2000 unreported)

London Borough of Lambeth v. Bigden (CA 1.12.2000 unreported)

Ofulue v. Bossert [2008] EWCA Civ 7

 

 

 

1. The Applicant, Mr Evershed applied to HM Land Registry to alter the title to “Fairview” being title number ESX284384 to remove the Respondents, Mr and Mrs Smith as registered proprietor and substitute himself as registered proprietor. Mr and Mrs Smith objected to the application and the matter was referred to the Adjudicator to HM Land Registry for determination.

 

2. Mr and Mrs Smith were registered as proprietors of Fairview on 20^th April 2005 upon their application for first registration. Their application for registration was made on the basis that they had acquired title to Fairview by adverse possession and that they had been in possession since 1992.

 

3. I shall refer to all the land and buildings comprised in Mr and Mrs Smith’s title collectively as “Fairview”. I inspected Fairview accompanied by the parties and their representatives. Fairview comprises a two storey building together with some land to its front and rear, a building to the side running between it and another building called “Evershed Court” and an outbuilding at the rear. The outbuilding is made of concrete panels and has a shallow-pitched roof covered in what appear to be corrugated asbestos sheets. There is a pedestrian door in the eastern wall of the outbuilding and a window in the northern wall. The window has been covered from the outside with a wooden sheet. There is also a large metal container on the land to the rear. The land to the front was at the time of my inspection divided into two parts; the eastern part is a level parking area, surfaced with concrete; the part to the west is at a slightly lower level and is rough ground. The building at Fairview resembles from the front a conventional two storey house of a type typical of the 1970s. There is a single-storey porch at the western end of the front of the building with an external door in the eastern wall of the porch and a large window in the southern wall. The porch gives access to a staircase leading up to the first floor. The first floor can also be accessed from an external staircase at the rear of the building. The first floor is equipped as residential accommodation, with a kitchen and bathroom. The first floor was not being occupied as residential accommodation at the date of my inspection. The ground floor presently comprises a workshop or store room. There are two large windows at the ground floor level that, if not covered, would allow light into the workshop. Access to the ground floor is through a door in the eastern side wall of the building or through a large garage door in the rear wall of the building.

 

4. The adjoining property known as Evershed Court was sold to Mr and Mrs Smith by Mr Evershed on 3^rd March 2000. Title to Evershed Court is registered under title number ESX242742. Evershed Court comprises a 3 storey building used as a workshop on the ground floor with flats on the upper floors, some open land to the front of that building, and a large yard with some outbuildings to the rear. The yard has a concrete surface. The 3 storey Evershed Court building lies to the west of Fairview. The yard is to the north of the 3 storey Evershed Court building and Fairview. The outbuildings run along the eastern side of the yard. Some of the outbuildings are lock-up garages. To the north of the yard there is a factory building occupied by Cliff Plastics Limited. The title to the factory building includes part of the yard. There is no physical mark or other feature in the yard to mark the boundary between the part of the yard falling within the Evershed Court title and the part of the yard within the title to the factory or between the open land at the rear of Fairview within the Fairview title and the yard within the Evershed Court title.

 

5. Access to Evershed Court and to Fairview is gained down an unmade up road that runs west from Fairlight Avenue and passes in front of Fairview before ending at the front of the main Evershed Court building. The unmade road passes along the rear of the gardens of houses on South Coast Road. The Respondents formerly lived at and ran a motor mechanics business from 394 South Coast Road. The rear garden of 394 South Coast Road can be accessed from the unmade road. There was at the time of my inspection a metal gate on the unmade road near the junction with Fairlight Avenue; the gate was open. Vehicular and pedestrian access from the unmade road to the land at the rear of Fairview, including the yard and outbuildings within the title to Evershed Court and to the Cliff Plastics premises is along the eastern side of Fairview. There is currently a large metal gate across the access, with tall brick pillars on each side. The yard is divided from land to the east by a wooden panelled fence.

 

6. All the land currently comprised within both title ESX284384 and EXS242742 being Fairview and Evershed Court was formerly owned by Mr Evershed’s father, Mr Frederick Evershed. Frederick Evershed died on 12^th January 1986 leaving a will dated 30^th December 1982. The will named Mr Evershed and his brother Frank Evershed as executors. Probate was granted to Mr Evershed on 23^rd May 1986 with power reserved to Frank Evershed. The will contained the following express provision concerning Fairview, namely

“I give the freehold property situate at Fairlight Avenue Telscombe Cliffs East Sussex being a building consisting of a flat known as Fairview together with a ground floor workshop thereunder which workshop is at present occupied by D.A.S. Tools (hereinafter called “the demised premises”) to my Trustees upon trust with the consent of Yvonne d’Avilar during her life and thereafter at their discretion to sell the same and to hold the net rents and profits until sale and the net income from the proceeds of sale in trust for the said Yvonne d’Avilar during her life and after her death my Trustees shall hold the demised premises if unsold or the net profits of sale or the investments representing the same for my said son Leo John Evershed absolutely

Until the demised premises shall be sold my Trustees shall during the lifetime of the said Yvonne d’Avilar or such shorter period as she shall desire allow her to occupy the said flat known as Fairview upon terms that during the period of such occupation she pays all rates taxes and other outgoings payable in respect of the said Flat and keeps the same in good repair and condition and refunds to my Trustees the cost of keeping the same insured to the full value thereof against loss or damage by fire and such other risks as my Trustees shall from time to time require”.

The remainder of the net estate was devised and bequeathed to Mr Evershed absolutely.

 

The Applicant’s case

7. Mr Evershed’s case is that he is the paper title owner, that his title had not been extinguished under section 17 of the Limitation Act 1980 at the date of first registration because Mr and Mrs Smith had not been in possession for a period of 12 years or more at that date and that the entry of Mr and Mrs Smith as registered proprietors was a “mistake” on the register. Mr Evershed accepts that Mr and Mrs Smith are in possession of Fairview and so the register can be rectified only if he can show that the registration was a mistake caused by fraud or lack of proper care on the part of Mr and Mrs Smith and that there are no exceptional circumstances justifying a refusal to rectify the register.

 

 

 

The Respondent’s case

8. Mr and Mrs Smith contend that there is no mistake on the register because they were in possession of Fairview for a period of 12 years prior to the date of their application for first registration. In the alternative, Mr and Mrs Smith contend that they have been in possession for a period of 12 years prior to Mr Evershed’s application and that the register ought not to be rectified.

 

The legal position

9. Section 15 of the Limitation Act 1980 provides as follows:

 

“15(1) No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

 

(6)   Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.”

 

10. Schedule 1, paragraph 1, provides as follows:

 

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession in the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action, shall be treated as having accrued on the date of the dispossession order discontinuance.”

 

 

11. Schedule 1, paragraph 8, provides:

“(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as ‘adverse possession’) and where under the proceeding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.

(2)                           …..…..

(3)                           ………

(4) For the purpose of determining whether a person occupying any land is in adverse possession of land it shall be not assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter’s present or future enjoyment of the land.

This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.”

 

12.               Thus, the right of action to recover the land is barred whenever 12 years have elapsed from the time when any right of action accrued. It does not have to be a period immediately before an action is brought.

 

13.               The question, therefore, is simply “…whether the Defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner…Beyond that…the words possess and dispossess are to be given their ordinary meaning.” (per Lord Browne-Wilkinson in J A Pye (Oxford) v Graham [2003] AC 419 at paragraphs 36, 37).

 

14.              Legal possession is comprised of two elements:

 

(1)                 A sufficient degree of physical custody and control (“factual possession”); and

 

(2)               An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”). “What is crucial is to understand that, without the requisite intention in law there can be no possession. Such intention may be, and frequently is, deduced from the physical acts themselves.” (ibid paragraph 40).

 

15.               Actual possession has been described as follows:

 

“It signifies an appropriate degree of physical control. It must be a single and [exclusive] possession…Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed …Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.” (per Slade J in Powell v McFarlane (1977) 38 P and CR 452 at pp. 470-471, cited at paragraph 41 in J A Pye (Oxford) v Graham): -

 

“The only intention which has to be demonstrated is an intention to occupy and use the land as one’s own …If the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough”, (per Lord Hope in J A Pye (Oxford) Ltd v Graham, at paragraph 71).

 

16.              Thus, in short, what is required is the intention to exclude the whole world from control of the land, not the use of the land. If the squatter has and manifests the intention to exercise exclusive control of the disputed land, and in pursuance to that control permits the owner to make limited use of it, then he will have the intention to possess. There must be a deliberate intention to exclude the owner. He has to demonstrate an intention to occupy and use the land as one’s own.

 

The Issues

17. Counsel for Mr Evershed, Ms Shea in her closing submissions defined the issues I have to decide as follows

(1)               Were Mr and Mrs Smith in factual possession of Fairview for a period of 12 years prior to their application to register the title on 5^th April 2005?

(2)               If so, did Mr and Mrs Smith during the period have the requisite animus possidendi”?

(3)               Did Mr and Mrs Smith acknowledge Mr Evershed’s title so as to stop time running?

(4)               If Mr and Mrs Smith had both factual possession and animus for the requisite 12 years how if at all is the extent of the interest they have acquired affected by the interest of Ms d’Avilar?

(5) If Mr Evershed’s title had not been extinguished does the register showing as it

does Mr and Mrs Smith to have acquired title by adverse possession with effect form 5 April 2005 contain a mistake within the meaning of the Land

Registration Act 2002 justifying the rectification of the register?

(6) If so was the mistake caused by the fraud or carelessness of Mr and Mrs Smith?

(7) If so are there exceptional circumstances preventing the rectification of the register?

Save that I consider the issues is whether Mr and Mrs Smith were in factual possession for a period of 12 years prior to the registration of the title rather than prior to their application (although the dates are the same since registration dates back to the date of the application) and that I prefer the term “intention to possess” to the Latin term used by Ms Shea, I accept Ms Shea’s formulation of the issues. There is one further issue before me as appears from the written closing submissions of counsel for Mr and Mrs Smith, Mr Pain. That is as follows

What order should be made if the register is rectified; should it be an order requiring the registrar to give effect to the application of Mr Evershed for his name to be substituted as registered proprietor for that of the Smiths or should it be an order requiring the registrar to close the title?

 

 

 

 

The Evidence

18. Mr Smith’s evidence was that in 1992 he was working for a haulage company undertaking vehicle repairs but in his spare time he was operating a car repair business trading as “Highway Motors”. He had no business premises and stored his repair equipment in his van. He was told of Evershed Court and Fairview by an unidentified person who was renting one of the lock up garages at Evershed Court. He then started to use the yard and the lock-up at Fairview in about August 1992. He used the lock-up for storing parts, gaining access through the small door on the eastern side. The lock-up was divided internally into 2. He used only one part; he did not know Mr Staich was using the other part. On 30^th July 1993 he and Mrs Smith completed the purchase of 394 South Coast Road. He then carried out the business of Highway Motors both from a garage at the rear of 394 South Coast Road but also using the yard and lock up at Evershed Court and Fairview. In late 1993 he started to use the ground floor workshop in the main Fairview building. He had gained access to the workshop through the small door on the eastern side. There was no lock on that door. The door was weathered and corroded such that it did not fit properly in the gap. Mr Smith said that he repaired the door to make it fit the gap and fitted a lock. The workshop was empty when he started to use it and he started using it because he needed space. He used it to store parts. Later, perhaps 5 or 6 years later, he used the workshop to store and work on a race car. He said that very soon after he started his motor mechanics business at 394 South Coast Road, he started to use Fairview for overspill from his garage. He used the workshop as a store; he didn’t repair cars in the workshop when he didn’t have electricity there; he didn’t work there often. He did not use the link building until after Mr Saich left in 1998. Mr Smith also said that he put a lock on the front door to the first floor flat a few months after he started using Fairview. It was not clear from his evidence whether he meant a few months after he started using the Fairview yard or a few months after he started using the ground floor workshop at Fairview. He did not change the lock to the rear door but this was secured by a bolt on the inside. He said that he used the area in front of the Fairview building. It was an area of hardstanding. He had used it for parking but not often; only if there was no room elsewhere. Anyone could park vehicles on it. The neighbours drive was directly opposite the hardstanding and it could be difficult for cars to get into the neighbours drive, if someone was parked on the hardstanding. If he was there when someone parked on the hardstanding, he would ask them how long they would be. He would do so in case he wanted to park there or if someone wanted to get by. He didn’t ever tell anyone not to park on the hardstanding. He parked customers cars in the yard; he tried to park on the area to the rear of the Fairview building and had had up to 6 cars there. The yard was used for parking and storage; he didn’t use the yard or Fairview to test cars. There was a gate across the entrance to the yard but this was not locked until Mr Smith erected a new gate in late 1998. There was a lock on the new gate. Mr Smith and Cliff Plastics Limited had keys. They came to an agreement that the last person to leave the yard at night would lock the gate. He accepted that people visiting Cliff Plastics, such as sales representatives, would park in the yard. If he saw them, he would ask them not to block anyone in but he would not stop them from parking in the yard.

 

19. After Mr Smith had started giving his evidence and while he was being cross-examined, he produced papers in the possession of his accountant, including tax returns for the tax years 1992 and 1994. On the basis of what was said in that tax return Mr Smith had to accept that he had traded as “Home Garage” until 4 September 1992 when according to the tax return Home Garage ceased trading and that the tax return stated he had started trading as Highway Motors on 1^st October 1993. However, Mr Smith said that he had traded as a motor mechanic between September 1992 and October 1993 under his wife’s business trading name, Auto Mobility. Mr Smith also accepted that he had traded in partnership with Mrs Smith under the name Highway Motors only until 12 June 1997 being the date the Inland Revenue was told the partnership came to an end.

20. Mr and Mrs Smith called Mr Jamie Lusted. He is a nephew of Mrs Smith. He worked for Mr Smith in his motor mechanics business after he left school at the age of 16 in June 1993. He recalled that cars that were to be or had been worked on were parked in the yard of Fairview. He worked on cars parked in the yard; he would have taken parts from cars while they were parked in the yard. He and Mr Smith would park cars all over the yard. He recalled seeing Mr Smith working on cars outside the rear entrance doors into the Fairview workshop.

 

21. Mr Sean Dodgson was called by Mr and Mrs Smith. He took a car to Fairview for Mr Smith to work on. He said in his witness statement that this was in 1991 but he accepted in cross-examination that it could have been in 1992. He could recall seeing Mr Smith with cars in the yard but he could not recall whether Mr Smith had been parking them or working on them. Mr Smith used to park cars in all parts of the yard. He used the area behind the main Fairview building and the area behind Cliff Plastics on a regular basis.

 

22. Mr Terry Corbett was called by Mr and Mrs Smith. He has known Mr Smith since 1993. He has a taxi and was recommended to use Mr Smith to maintain the taxi. He took his car to Mr Smith’s garage several times a year. He would usually park his car at the rear of Mr Smith’s garage at the back of 394 South Coast Road but if there was no room there, he would park by the side of Fairview. He had been shown where to leave the car by Mr Smith.

 

23. Mr Andrew Tait was called by Mr and Mrs Smith. He had been in business with Mr Smith in a body repair business. In November 1992 as a treat for his 40^th birthday, he bought a racing car from Mr Smith. The car was stored in the yard. It was usually at the back of Fairview. He collected the car 2 weeks or so before Easter 1993, ready for the start of the racing season. He would drop off the car for Mr Smith to do works to it on a fairly frequent basis during the racing season. He would generally leave it in the yard at the back of Fairview.

 

24. Mr David Thorpe was called by Mr and Mrs Smith. He usually owned 2 or 3 cars at any one time. Mr Smith serviced them for him. From about 1992 he had taken his cars for servicing and parked them in the yard. He had parked on the area behind Fairview but he had “parked all over the place”.

 

25. Mr Maurice Thorpe was called by Mr and Mrs Smith. He is David Thorpe’s father. He owned usually about 4 or 5 cars at any one time. He started using Mr Smith to service his cars in 1993 or 1994 (and not in 1992 as he stated in his witness statement). When he dropped off a car for servicing, he would leave it in the yard if there was no room at the rear of 394 South Coast Road. He would leave the cars in the yard at the rear of Evershed Court. Mr Smith would work on the cars sometimes in his garage and sometimes in the yard.

 

26. Mr Oram gave evidence. Due to his ill health, his evidence was taken at his home where I attended with counsel. He said that Mr Smith permitted him to store a race car on land at the rear of Fairview. This began at some time between 1994 and 1996. He usually kept the car parked by the doors at the rear of Fairview leading into the workshop but there were times when he parked elsewhere in the yard. The car would be loaded onto a lorry to be taken to race meetings and spare parts for the car would be loaded onto the lorry. He had an impression of Mr Smith going into the workshop and coming out with spare parts for his car. He did not know where Mr Smith kept the parts for his own racing car. He could also recall Mr Smith carrying out small works to cars parked in the yard, such as replacing windscreen wipers.

 

27. Mr Evershed gave evidence. He lives in the United States of America. He visited Evershed Court on 3 occasions over the 15 year period between 1990 and 2005. Those occasions were in December 1992, December 1995 and December 1998. When he visited in December 1995 and December 1998 he did not go into the buildings; they were locked and he did not have keys. There were metal Venetian blinds in the windows of Fairview. He could look through the blinds. From what he saw, he could say there was then no-one occupying the ground floor workshop.

 

28. Mr Evershed called Mr Saich to give evidence. Mr Saich used a timber shed to the south west of Evershed Court with Mr Evershed’s permission between early 1994 and December 1996. In December 1996 with Mr Evershed’s permission, he moved into a flat at Evershed Court and started using the ground floor workshop. He also used the link shed between Evershed Court and Fairview. Mr Saich said that the main building of Fairview was locked and no-one was using it prior to 1999. He vacated the buildings at Evershed Court in 1998 and went to Ireland. When he returned a year later, he noticed Mr Smith had broken into the lock-up. He did accept that Mr Smith parked the odd car in the yard and that Mr Smith did leave a stock car on a trailer at the back of Fairview.

 

29. Mr Colin Watts was called to give evidence by Mr Evershed. Mr Watts was a long-standing friend of Mr Evershed. He stored classic cars and classic car parts in a wooden garage to the south of Evershed Court from 1990 to 1997. His evidence was that Fairview became vacant in July or August 1992 when DAS Tools moved out. He kept a keen eye on the property and visited it often until 1998 because Mr Saich was carrying out work for his company, his brother lived at Evershed Court and he had cars stored there. He had keys to the ground floor workshop and the flat at Fairview. Mr Watts was aware that Mr Smith was running a car repair business from his garage at 394 South Coast Road but he believed this was from some time between 1993 and 1994. Mr Smith used to park customer’s cars in the yard but Mr Watts did not see Mr Smith work on cars in the yard. No-one was using the ground-floor workshop during this period. There were dilapidated Venetian blinds in the windows of the ground floor workshop and it was possible to look into the workshop from outside. Mr Watts stored some furniture in the lock up between 1993 and 1997 but in 1997 he noticed that some furniture was missing.

 

30. Mr Stephen Marchant was called to give evidence by Mr Evershed. He is a friend of Mr Evershed and is in business as an auto-repairer and restorer. Mr Evershed asked him in about 1986 to collect rent from the tenant of the ground floor workshop at Fairview, Mr Derek Sansom who traded as DAS Tools. Mr Sansom vacated the workshop around mid to late 1992. Mr Marchant visited his daughter who rented the top floor flat at Evershed Court during 1993 and 1994. Mr Marchant also went to the Evershed Court area between 1990 and 1999 when he visited in connection with some classic British sports cars that he had purchased jointly with Mr Colin Watts and a Mr Ron Sherwin from Mr Evershed and which were being stored at Evershed Court. On none of his visits between 1992 and 1999 did he see any evidence that anyone had accessed or was using the workshop at Fairview.

 

31. Mr Frank Fossella was called to give evidence by Mr Evershed. He rented the ground floor workshop at Evershed Court from April 1991 to November 1993 in connection with his garage business, Fairlight Garage. For about two weeks in late spring or early summer 1993 at Mr Evershed’s invitation, he also used the ground floor workshop at Fairview. From 1992 to 1995 he rented the lock up garages to the west of the Cliff Plastics building. After 1995 until 2000 he visited Cliff Plastics regularly to service their vehicles and visit his son, who worked for Cliff Plastics. He became aware in 1993 of Mr Smith working on vehicles at the rear of 394 South Coast Road but he never saw him in the period 1991 to 2000 use or gain access to Fairview.

 

32. Mr Neil Watts was called to give evidence by Mr Evershed. He is the brother of Mr Colin Watts. Between 24th December 1989 and 31st December 1996 he rented the first-floor flat at Evershed Court. From the flat, he could see the front of Fairview, the access road and Mr Smith’s garage at the rear of 394 South Coast Road. He could not see into the yard from the flat. He had a dog that he used to walk three times a day and he would pass Fairview and look into the yard on his walks. He never saw Mr Smith working on cars in the yard. He sometimes peered into the ground floor workshop. He was sure that no use was made of the ground floor workshop while he was living at Evershed Court. There were old Venetian blinds at the windows. Some of the slats were broken. In good daylight you could see into the workshop and see that it was empty.

 

33. Both Colin and Neil Watts and Mr Saich gave evidence about a water leak in the main building at Fairview in late December 1996 or January 1997. At that time officials from Southern Water knocked on the door of the first floor flat at Evershed Court and asked Neil Watts if he had the key to Fairview or was able to contact the owner because they believed there was a substantial water leak at Fairview. Neil Watts went to check and looking through the blinds, he saw water coming from the flat above. The water flooded the workshop floor. The workshop was completely empty at that time. He rang Colin Watts and asked him to investigate. Colin Watts in turn rang Mr Saich and asked him to investigate. Mr Saich did not have a key so he broke into the first floor flat with Mr Smith’s help. He discovered a water leak from a towel rail in the bathroom. Colin Watts went around later the same day and went into the first floor flat and the workshop. He said that the water had flooded the workshop. He said that both the flat and the workshop were clearly unoccupied at that time. He said that it was obviously a serious leak and that he later discovered from the water company that the leak had been running for a year. He left the building locked and secured.

 

34. Mr Smith accepted that there had been a leak and that Mr Saich had broken in to the flat to repair it. However, he denied that it was a leak that had been running for a year and he said water was not coming through the ceiling of the workshop. He said that after the leak had been repaired, he secured the door to the first floor flat so that it was locked.

 

35. In about May 1997 Mr Evershed decided to sell Evershed Court and Fairview. Mr Colin Watts engaged Oakley’s Estate Agents on Mr Evershed’s behalf and Dakers Seymour & Co., solicitors. It was later decided to exclude Fairview from the sale. On 18^th February 1998 Dakers Seymour & Co., solicitors acting for Mr Evershed wrote to Highways Motors at 394 South Coast Road stating as follows

“We represent the owners of Fairview and Evershed Court where we understand you have been parking old motor vehicles, trailers etc. without permission for several years. We are also aware that you have gained entry to the prefabricated shed behind Fairview.

Our client’s representative Mr Watts has we understand spoken to you and requested you to cease using our Client’s premises in view of its impending sale.

We should be obliged if you could kindly therefore remove your belongings without delay and confirm that you have done so formally”.

Mr Smith replied to that letter by a letter stamped 19 March 1998 as follows

“With regards to your letter dated 18/2/98, I am looking for somewhere to store my vehicles and trailer.

I understand that the new owners might be Cliff Plastics. I have talked to them and if the sale goes through, we are hoping to make arrangements with them”

Interestingly, Mr Smith made no reference in that letter to having anything other than vehicles and a trailer at Fairview.

 

36. Mr Evershed granted Mr Smith a lease of Evershed Court for a term of one year from 4^th January 1999. During the course of the negotiations for the lease, Mr and Mrs Smith sent a letter by fax to Mr Evershed’s solicitors. The letter was sent on 27^th November 1998 and contained the following

“Just to let you know we have always asked for first option to buy the other building if it is not in the lease can we have it added or a separate amendment”.

There is no dispute that the “other building” referred to in the letter was Fairview. Mr and Mrs Smith subsequently purchased Evershed Court, the purchase being completed on 3^rd March 2000.

 

Factual Possession

37. Miss Shea submits that whether Mr and Mrs Smith were in factual possession has to be considered in respect of each of the different parts of Fairview separately. I accept that for Mr and Mrs Smith to have been entitled to be registered with title to all the property within their title, they must have been in factual possession of the whole of that property and in order to determine whether they were in factual possession of the whole, I have to consider the evidence as to their use of each part.

 

The link building

38. In relation to the link building, there is no evidence that the Smiths ever had factual possession of the whole prior to the date of registration. Mr Smith accepted in cross-examination that it was not occupied by him during the twelve year period on which he relied for the purpose of obtaining registration. He also accepted that this building was for some years during that period occupied by Mr Saich for the storage of materials. He said that he occupied it after Mr Saich left in 1998.

 

39. Ms Shea submits that this shows Mr and Mrs Smith did not have exclusive occupation and control of Fairview to the effect that Mr and Mrs Smith cannot be regarded as being in factual possession of Fairview. Ms Shea submitted that Mr and Mrs Smith had not made any application to register title to part only of Fairview and accordingly, as they were not in possession of the link building, their application should have been rejected. I do not accept this submission. It would have been open to the registrar to have registered title to such parts of Fairview as Mr and Mrs Smith established title to by adverse possession; that is, it would have been possible for the registrar to have given effect to the application in part only. It seems to me that the fact Mr and Mrs Smith were registered with title to the link building when they had not been in adverse possession of that building means that there is a mistake on the register in that their title should not include the link building but it does not mean that it is a mistake for them to be registered with title to any part of the land comprised within the Fairview title.

 

The Fairview lock-up

40. In relation to the Fairview lock-up Mr Smith’s evidence was that he used the eastern part but he gave no details of how he used it. No one other than Mr Smith gave evidence of use of it. None of the witnesses called by Mr and Mrs Smith gave evidence that they saw Mr Smith using the lock up. Mr Straich gave evidence that he used part of it and Mr Colin Watts gave evidence that he stored furniture in the lock up between 1993 and 1997. I accept the evidence of Mr Straich and of Colin Watts in this regard.

 

41. I am not satisfied on the evidence that Mr and Mrs Smith had exclusive possession of any part of the lock-up. Mr Smith did use part of it for some storage but he plainly did not have exclusive possession of the whole of the lock-up. It was also used by Mr Straich and by Colin Watts. Mr Smith did not exercise exclusive physical control of the workshop. Mr and Mrs Smith have not established that they were in factual possession of the lock up.

 

Fairview garden

42. Mr Smith gave evidence in re-examination that he used the Fairview garden occasionally for parking and that it was not a garden at all. The garden is now in two parts; the part to the east which is rough ground at a higher level to the part to the west. There was photographic evidence relating to the Fairview garden. Mr Evershed produced a photograph of the front of Fairview under snow. The photograph showed that part of the front of Fairview was a garden but the photograph does not much assist since it predated the date on which Mr Smith said he started using the garden.

 

43. There was evidence that other people had parked on the garden from Mr Smith himself. Mr Smith’s evidence was that if he saw other people park on the garden, he would ask them how long they would be.

 

44. Whilst I accept that Mr Smith used the part of the garden to the east for occasional parking from some time after he and Mrs Smith purchased 394 South Coast Road and started up business there, he did not in my judgment do so for the whole of the period of 12 years prior to the date of registration.

 

45. Furthermore when others parked there they did so without seeking or being granted Mr Smith’s permission. Mr Smith may have asked people parking on the garden how long they were going to be but this was, as he said, out of concern for the person who lived opposite Fairview and could not get into his drive if there was a car parked to the front of Fairview. The question cannot be seen as Mr Smith claiming ownership or possession of the garden or purporting to give permission to others to park there. At no point did Mr Smith tell the others parking that they could not park there or could only do so with his permission; nor did he purport to grant them permission. Mr and Mrs Smith did not in my judgment exercise an appropriate degree of exclusive physical control over the Fairview garden. Mr Smith used the garden but so did others who did not have his permission to do so. Mr and Mrs Smith did not have factual possession of the garden.

 

Fairview rear yard

46. It is Mr and Mrs Smiths’ case that the area of the yard to the rear of the Fairview building, being the area included in the title he and Mrs Smith obtained in April 2005 was always occupied by his or his customers’ cars. Occupation by cars was the limit of the use they claimed to have made of this part of the yard. Mr Smith accepted in evidence that he did not do repair works to the surface of the yard in this or any other area

 

47. The evidence of the witnesses called for Mr and Mrs Smith’ witnesses as given at the hearing was in substance that the rear yard was used primarily for parking if there was no space at the rear of 394 South Coast Road. If there were no space to park outside the garage at 394 South Coast Road, Mr Smith’s customers would park wherever they could around Evershed Yard. Terence Corbett confirmed that in the vast majority of cases he would park his car at the garage at 394 South Coast Road; and if it was full he would have to park his car “down the bottom”). Over the ensuing years he did occasionally park on Fairview garden, or on occasions he used Fairview workshop for storing odd spare parts on a temporary basis. However, he was not in factual possession of Fairview from 1992 All the witnesses agreed that there was no way of telling from looking at Evershed Yard as a whole which cars were connected with Mr Smith and which were not. Jamie Lusted said that the customers used to park their cars “all over the place”. David Thorpe said that he had been there so many times he’d “parked all over the place. It just depended if here was a space and I wasn't blocking anyone”.

 

48. Ms Shea placed some reliance on a letter from Mr Alan Cooke dated 16^th October 1995 to Lewes District Council as evidence that in October 1995 Mr Smith was parking his cars in the part of the Evershed yard that formed part of the land leased to Cliff Plastics and not elsewhere in the yard and in particular, not on the part of the yard in the Fairview title.. Mr Cooke was writing to Lewes District Council in support of Mr Smith’s application for retrospective planning permission to use 394 South Coast Road for his business. In answer to comment from objectors to the application that cars connected with Mr Smith blocked the driveway from Fairlight Avenue, Mr Cooke wrote

“We have not experienced blocking of the driveway by vehicles connected with Mr Smith as most of his vehicles are actually parked through, shall we say, a “gentleman’s agreement” in the yard used by the company”.

Mr Cooke did not in his letter distinguish between one part of the yard and another. However, in his oral evidence Mr Cooke said he meant that Cliff Plastics allowed Mr Smith to park in any of the parking spaces in the part of the yard let to Cliff Plastics, if they were free. He confirmed in cross-examination that he was writing only about the part of the yard he had responsibility for but he did say that Mr Smith also parked elsewhere in the yard.

 

49. Ms Shea submitted that on the basis of this evidence, I should find Mr Smith parked most of his cars in the Cliff Plastics part of the yard. I do not accept this. I have no doubt that Mr Smith and his customers parked from time to time in all parts of the yard. They parked wherever there was a free space and wherever seemed convenient at the time. Mr Smith needed an arrangement with Cliff Plastics for him to be able to park in their spaces because representatives of Cliff Plastics worked on the site and would have seen him use the yard but the fact he could park with the agreement of Cliff Plastics did not mean that he did not also park in the parts of the yard that were not within the control of Cliff Plastics.

 

50. There was some evidence in the witness statements of Mr Smith working on cars in the yard. However, Mr Smith himself in his oral evidence said that he did not effect repairs in the yard. He said that most work was done in his own workshop in the garage at 394 South Coast Road; it was only “some years later” that he began to use Fairview workshop for repair works. Other witnesses such as Mr Oram and Mr Lusted did give evidence that Mr Smith carried out works to vehicles in the yard but these were small works. Mr Oram had a clear general impression of seeing Mr Smith carrying out minor work such as changing windscreen wipers. I am sure that Mr Smith did not carry out any significant work to cars in the yard. In view of his own evidence, he can hardly allege that he did so in support of his claim to have acquired title by adverse possession. However, I do accept that Mr Smith did on occasions change a windscreen wiper or do some other small job that did not require much by way of tools or equipment to a car parked in the yard.

 

51. I summary, I find that Mr Smith and his customers parked cars in all parts of the yard from time to time and that Mr Smith did on occasions do minor works to cars while they were in the yard. However, Mr Smith did not have factual possession of the yard. He did not take exclusive possession by controlling entrance into or exit from the yard. He did nothing to mark out, let alone fence off, any particular part of the yard. It was not until late 1998 that he put up a new gate across the entrance to the yard and then he gave a key to the padlock on the gate to Cliffe Plastics so did not even then control access to or egress from the yard. There is no evidence that anyone else parking in it ever sought or was given permission to do so by Mr Smith. The yard was used as a car park by a number of people and cannot be regarded as having been in the possession of Mr Smith.

 

Fairview workshop

52. Mr Smith said he used the workshop for storage of parts and later (no specific date

is given but he said not for the first few years during which he didn’t need the space) he started to effect repairs within the Fairview workshop. However, under cross- examination he said he started to use the workshop for storage when he was running out of space to store things in his own garage. This would date the commencement of use for storage at some time after his purchase of 394 South Coast Road at the end of July 1993.

 

53. The only other witness who gave evidence that Mr Smith used the workshop was Mr Oram. His evidence in cross- examination was that he saw Mr Smith going into the Fairview workshop and coming out with spare parts for Mr Oram’s car when the car was being loaded onto a transporter to be taken to a race meeting. The loading happened once a week during the racing season. Mr Oram did not say how often the spares were put on the vehicle at the same time but this is likely to have been every time the car was loaded since the parts were taken to the race meetings to enable any problems with the car to be fixed at the side of the track. Mr Oram could not give direct evidence that spares for Mr Smith’s own car were kept in the workshop. Spares for Mr Smith’s car were loaded up the day before Mr Oram arrived to collect his car and so he would not have seen where such spares were stored.

 

54. Significantly, no other witness gave evidence of seeing Mr Smith use the workshop.

The witnesses who appeared on behalf of Mr Evershed were clear that there was no sign that there was anyone in occupation of the Fairview workshop. They often peered through the windows. Mr Evershed visited on three occasions with the very purpose of checking out the premises and although he did not enter he was quite clear that he had an adequate view of Fairview workshop through bent and broken blinds, which, as Mr Evershed’s witnesses testified, afforded a decent view of the interior. He was quite satisfied that Fairview workshop showed no signs whatever of use or occupation.

 

55. What happened in December 1996/January 1997 when there was a serious leak of water from the first floor flat at Fairview provides some significant evidence that Mr Smith was not then or in the weeks running up to January 1997 using the workshop. I prefer the evidence of Mr Evershed’s witnesses as regards the flood. Mr Neil Watts saw water pouring into the workshop and that the workshop floor was flooded. If the workshop was then being used, he would have noticed but he did not see any signs it was being used. He contacted his brother, Mr Colin Watts who in turn asked Mr Saich to investigate. Mr Saich broke into the first floor flat. Mr Colin Watts came back later, after the door had been secured and gained access with a key. Had Mr Smith been using the workshop, Mr Colin Watts would have noticed at that time. He did not. I consider him, his brother and Mr Saich to be credible witnesses.

 

56. I find that any use Mr Smith made of the Fairview workshop prior to 1997 was minor; it was the temporary storage of a few boxes of spare parts. I do not consider that the use Mr Smith made of the workshop was the use an occupying owner could be expected to make of the workshop. Had Mr and Mrs Smith been using the workshop as an occupying owner could have been expected to use it, it would have been apparent in my judgment to anyone looking through the windows. Mr and Mrs Smith were not in possession of the workshop at least prior to December 1998, being the last date on which Mr Evershed recalls looking into the workshop.

 

Fairview flat

57. Mr and Mrs Smith accept that they never used the Fairview flat. Mr Smith’s evidence was that he changed the locks to it. This was disputed by Colin Watts who gave evidence that when he arrived to attend to the leak he was able to gain entry to the Fairview flat by using his keys. The only reason that the door had had to be forced earlier was that the people attending the leak, having been called by Colin Watts, did not have keys to it. Colin Watts however did. I prefer the evidence of Colin Watts to the evidence of Mr Smith. If Colin Watts had arrived at the flat to deal with the leaks and found the locks had been changed such that he could

not gain entry he would not have pursued the matter at the very least by making enquiries to discover who had taken possession and by changing the locks back again. Mr Smith did not change the locks to the Fairview flat until after January 1997. Before that date he cannot be regarded in any way as having been in possession of the flat.

 

Fairview as a whole

58. Mr and Mrs Smith have failed to prove that they were in factual possession of Fairview for a period of 12 years prior to the date of their registration with possessory title to that property. The link building and the Fairview lock-up were occupied by others. They were not in exclusive possession of the lock up. They did not have exclusive physical control of the Fairview rear parking area. They were not in factual possession of the workshop, at least prior to December 1998. They were not in possession of the flat, at least prior to January 1997.

 

 

 

Twelve year Period

59. Mr and Mrs Smith’s case is that Mr Smith’s occupation of the exterior parts of Fairview started in the autumn of 1992 before they moved into 394 South Coast Road in the summer of 1993. In Mr Smith’s statutory declaration in support of the application to be registered Mr Smith said that he had moved in June 1992 and that the occupation of Fairview had started after he had moved in because his business started after he moved in. He moved into Number 394 South Coast Road and started running his business from his garage at the bottom of the

garden at Number 394 South Coast Road. After he had been doing that for a couple of years he applied for retrospective planning permission which was granted first temporarily and subsequently permanently. I consider that the true story is that told by Mr Smith in his statutory declaration, save only for the date of his acquiring 394 South Coast Road. I consider that the use of the Evershed Yard area as an overspill car park began as business grew. It follows that as at the date of his application to be registered with possessory title to Fairview, he had not been in possession for twelve years. It follows that as at the date of his application to be registered with possessory title to Fairview, he had not been in possession for twelve years.

 

60. The accounts disclosed by Mr Smith on the last morning of the four day hearing are consistent with this. They show that the business which he said he started there started trading on 1^st October 1993. Mr Smith gave evidence that his accountant advised him that in order to get a mortgage he would need a PAYE job which he duly got; but that in parallel he ran his own business from Fairview. He was however unable to give any explanation as to why his accountant told him that he should not file his accounts in the name of the business notwithstanding he was running the business at that time. He said that was the advice that he received. He could provide no satisfactory explanation as to why such advice should have been given. In my judgment, there is no reason why if Mr Smith were running the business at that time, accounts should not have been filed accordingly. The accounts provide corroborative evidence that Mr Smith’s business did not in fact start until October 1993.

 

61. Whilst Mr Smith did not start his business until 1993, I accept the evidence of Mr David Thorpe that Mr Smith kept a car David Thorpe purchased from him to celebrate his 40th birthday in the Fairview rear parking area from 1992 under a sheet. Mr Thorpe would visit once or twice every three to four weeks. This is not evidence in my judgment of Mr Smith running a business from or using the Fairview yard for a business prior to 1993.

 

62. In summary I find that such use as Mr Smith did make of Fairview, with the exception of parking Mr Thorpe’s race car at the rear of Fairview, did not commence until after he bought 394 South Coast Road in 1993 such that, if contrary to my finding, he was in factual possession of Fairview, he was not in factual possession until after the end of July 1993. He had therefore not been in factual possession of the yard for 12 years at the date of his application in April 2005.

 

Intention to possess

63. I am not satisfied that Mr and Mrs Smith had the intention to possess Fairview. The acts they did on Fairview land were equivocal so far as demonstrating an intention to possess is concerned. Parking cars from time to time in the yard and occasionally doing small works to them, such as changing windscreen-wiper blades does not demonstrate an intention to possess the yard. It could at the highest demonstrate an intention to assert an easement, namely a right to park. Mr and Mrs Smith did not lock the gate to the yard until some time in or after 1998. Up until that period they exercised no control over the yard. It is impossible to find that they demonstrated an intention to possess the yard, at least prior to 1998. Mr and Mrs Smith did not change the locks to the flat or ground floor workshop. It is impossible to find an intention to possess based on only the occasional use of the workshop for storing a few boxes of spares. Mr and Mrs Smith did nothing at least prior to 1998 from which an intention to possess the flat could be inferred.

 

64. As Ms Shea submitted, there were many things Mr and Mrs Smith could have done of the sort that would be expected of an occupying owner, such as:

(1) securing the provision of utilities to the Fairview building and paying for them;

(2) registering with the authorities as being in occupation (for the purposes of Council Tax or business rates);

(3) erecting signs;

(4) enclosing Fairview rear yard and stopping others from parking in Fairview rear yard and Fairview garden;

It is clear that Mr and Mrs Smith did not demonstrate an intention to possess Fairview.

 

Acknowledgement of title

65. In 1998 Mr and Mrs Smith were negotiating to take a lease of and to buy Evershed Court. On 27^th November 1998 they sent a letter by fax to Mr Evershed. In that letter, they wrote,

“Just to let you know we have always asked for first option to buy the other building if it is not in the lease can we have it added or a separate amendment

….

When you come over we have some ideas to your advantage about the other building we want first option on”.

Mr Evershed contends that “the other building” was the Fairview building and that the letter contained an acknowledgment of title within the meaning of sections 29 and 30 of the Limitation Act 1980.

 

66. Mr Pain, counsel who appeared for Mr and Mrs Smith, did not seek to argue that “the other building” referred to anything other than the Fairview building. He was right not to do so. In London Borough of Lambeth v. Archangel (CA 1.12.2000 unreported) the Court of Appeal accepted that the trial judge had been entitled to admit extrinsic evidence to identify the property referred to in the document in question as “Lambeth’s property”. Mr Archangel accepted in cross-examination that the reference in the document he had signed to “lambeth’s property” included a reference to the property in issue. Here, Mr Smith accepted in cross-examination that by “the other building” he was intending to refer to “Fairview”.

 

67. Section 29 provides that where the person in possession of land acknowledges the title of the person to whom the right of action has accrued, the right shall be treated as having accrued on and not before the date of acknowledgement. Section 30 provides that to be effective for the purposes of section 29, the acknowledgement must be in writing and signed by the person making it and further provides that the acknowledgement must be made to the person whose title or claim is being acknowledged. A document may impliedly acknowledge a person’s title. Whether or not a particular writing amounts to an acknowledgement depends on the true construction of the document in all the surrounding circumstances. In Edgington v. Clark [1964] 1 QB 367, the person in adverse possession wrote two letters to the true owner’s agent. The first read:

“Re the above mentioned plots of freehold land I herewith offer the sum of £275 subject to contract”.

The second read:

“Regarding the sale of the above numbered property I herewith make an offer of £320. If this offer is accepted I hereby authorise you to proceed on my behalf in this matter”.

Upjohn LJ said (at p. 376):

“If a man makes an offer to purchase freehold property, even though it be subject to contract, he is quite clearly saying as between himself and the person to whom he makes the offer, he realises that the offeree has a better title to the freehold land than himself, and that would seem to be the plainest possible form of acknowledgement”.

 

68. In London Borough of Lambeth v. Bigden (CA 1.12.2000 unreported) a block of flats owned by the Council was occupied by a number of squatters. The Council proposed to sell the block to a third party. A number of squatters signed a petition to the Council seeking to persuade it not to sell to the third party. The petition did not question the right or power of the Council to sell. The Court of Appeal held that the petition was a clear acknowledgement by those signing it that the Council had the better title to the block because it implicitly recognised the power and right of the Council to sell.

 

69. Mr Pain for Mr and Mrs Smith sought to rely on a passage in the judgment of Arden LJ in the Court of Appeal in Ofulue v. Bossert [2008] EWCA Civ 7, at paragraph 74 in which it was said that what has to be acknowledged is that the paper title owner has a better right to possession and that although by claiming to be entitled to a lease in a Defence, the Bosserts admitted that the Ofulues were the true owners of the property, they did not acknowledge that the Ofulues had a better right to possession and so there was no acknowledgement. An appeal was brought to the House of Lords against the decision of the Court of Appeal. In the House of Lords it was conceded on behalf of Ms Bossert that the Court of Appeal was wrong in deciding that the admission of title in the Defence did not constitute an acknowledgement for the purposes of section 29. Lord Neuberger described the concession as “realistic and correct” – see paragraphs 72 and 73 in the speech of Lord Neuberger. Lord Scott said (at paragraph 15) that paragraphs 1 (which admitted Mr and Mrs Ofulue’s title to the property), 6 (which claimed that Mr Bossert had become the tenant of the property) and 8 (which claimed that Mr Bossert was entitled to remain in possession pursuant to an oral agreement with Mr Ofulue for the grant of a fourteen year lease) of the Defence “perhaps individually, but certainly collectively, a clear acknowledgement of Mr and Mrs Ofulue’s title”.

 

70. In view of what was said in the House of Lords, I do not (with the greatest respect to Arden LJ) consider it right to rely on the passage of Arden LJ. The statute refers simply to an acknowledgement of title. Mr and Mrs Smith asked for a “first option to buy” Fairview. It is not entirely clear from their letter whether they were asking for an option to buy or a right of first refusal in the event that Mr Evershed chose to sell. Whichever they meant, by asking for a “first option to buy”, Mr and Mrs Smith were indicating that they considered Mr Evershed had the power and right to sell Fairview. They were in my judgment acknowledging his title. The acknowledgement was in writing and was signed by both Mr and Mrs Smith. It was addressed to Mr Evershed and sent to him by fax. It follows in my judgment that time stopped running against Mr Evershed for the purpose of the Limitation Act 1980 on 27^th November 1998.

 

71. Mr Pain also argued that Mr Evershed had only a future interest in Fairview and no present right to possession. He submitted that the document was not an acknowledgement of title because Mr Evershed had no present right to possession. I reject this argument because it is based on a false interpretation of the will of Mr Evershed’s father. The effect of the will was not to create a strict settlement but to bequeath to Miss D’Avilar a right to occupy Fairview. The terms of the will did not prevent the executors from selling Fairview; if they did so they would have had to account to Miss D’Avilar as beneficiary. The right to possession was in the executors and it is against them that time would run under the Limitation Act 1980. Had Mr Pain’s argument been correct then Mr and Mrs Smith could have barred the interest of Miss D’Avilar by adverse possession but would not have barred the executor’s title.

 

Mistake

72. Miss Shea submitted that the register shows Mr and Mrs Smith as having obtained title through adverse possession by 5th April 2005 and that if it is found that Mr and Mrs Smith were not in adverse possession of Fairview for at least twelve years prior to this date then the register contains a mistake since Mr and Mrs Smith would not have obtained title by that date.

I do not consider this reading of the register to be correct. The register shows Mr and Mrs Smith as having been registered with title absolute on 20^th April 2005. The register does not itself show the grounds on which Mr and Mrs Smith were given title absolute. It is correct that Mr and Mrs Smith should not have been registered with title absolute if they had not been in adverse possession for 12 years prior to the date of registration. However, I do not accept that this means the register must be altered if I find that Mr and Mrs Smith were not in adverse possession for 12 years prior to the date of registration. The registrar has power under paragraph 6(3) of Schedule 4 to the Land Registration Act 2002 where he has power to make an alteration, not to do so in exceptional circumstances. It would be wrong in my judgment to order an alteration to be made to the register if Mr and Mrs Smith were able to show that although they had not been in adverse possession of Fairview for 12 years prior to the date of registration, they have subsequently been in adverse possession for a period of 12 years. However, as I have found that Mr and Mrs Smith acknowledged the title of Mr Evershed in November 1998, they would have to show 12 years adverse possession since that date. There have not been 12 years since November 1998. Accordingly, Mr and Mrs Smith cannot show adverse possession for a period of 12 years from the date of acknowledgement of title.

 

Mistake caused by fraud/carelessness

73. It is common ground that Mr and Mrs Smith are in possession of Fairview. Accordingly, the register may only be altered without their consent if they caused or substantially contributed to the mistake by fraud or lack of proper care or it would be for any other reason unjust for the alteration not to be made – paragraph 6(2) of Schedule 5 to the 2002 Act. I have no hesitation in finding that Mr and Mrs Smith caused or substantially contributed to the mistake by, at best, a lack of proper care. The registrar will have relied in granting Mr and Mrs Smith title to Fairview on the statutory demand made by Mr Smith on 24^th February 2005. That statutory demand was inaccurate in at least the following respects;

(1). Mr Smith declared that he bought and moved into 394 South Coast Road in June 1992 whereas he did not buy 394 South Coast Road until 30^th July 1993.

(2). Mr Smith declared that he and his wife started using Fairview and Evershed Court for the purpose of their business, Highway Motors in autumn 1992 whereas the business of Highway Motors did not start until 1^st October 1993.

(3). Mr Smith declared that within 6 months of starting “the business at the premises” he replaced the gate with a secure gate and kept it locked by way of chain and padlock when not in use. On a plain reading of the declaration, Mr Smith was saying that he replaced the gate by about December 1992 (6 months after he claimed to have moved into 394 South Coast Road) and kept it locked thereafter. In fact, he did not change the gate and fix a padlock until 1998 and both he and Cliff Plastics had keys to the padlock.

(4) Mr Smith declared that at all times he had used the ground floor of Fairview for the purpose of storage of parts and materials in connection with his car repair business. He did not in fact use the ground floor for storage of parts and materials before 1997.

There were a number of important omissions from the statutory declaration

(1) Mr Smith failed to declare that he shared use of the outbuilding with Mr Straich.

(2) Mr Smith failed to declare that when he did put a padlock on the gate, he gave a key to Cliff Plastics.

(3) Mr Smith failed to declare that the yard was used by other people as well as him.

I have no doubt that the mistake was caused by errors and omission in the statutory declaration and that those errors and omissions were at best the result of a lack of proper care on the part of Mr Smith. Mr Smith could have found out without difficulty the correct date when he moved into 394 South Coast Road and started the business of Highway Motors. Had he been more careful in the drafting of the statutory declaration the errors and omissions would not have occurred.

 

Conclusions

74. Mr and Mrs Smith were not in factual possession of any part of Fairview for a full period of 12 years prior to 20^th April 2005 being the date of their application for registration with title thereto. There was a mistake on the register because they should not have been registered with title to Fairview. Mr and Mrs Smith caused or substantially contributed towards that mistake by fraud or lack of proper care. They acknowledged Mr Evershed’s title to Fairview in writing on 27^th November 1998. They would not now be registered with title by adverse possession to Fairview if they were not already registered because they cannot have been in adverse possession for 12 years since they acknowledged Mr Evershed’s title. In the circumstances, the registrar has power to alter the register. There are no exceptional circumstances so the application to rectify must be approved. I shall direct the Chief Land Registrar to give effect to the application of Mr Evershed to alter the register by removing Mr and Mrs Smith as proprietors and adding Mr Evershed as proprietor. That Mr Evershed be added as proprietor in the place of Mr and Mrs Smith is part of the application made by Mr Evershed. There is no reason why the rectification should not include adding Mr Evershed as proprietor.

 

75. My preliminary view as to costs is that Mr and Mrs Smith should pay Mr Evershed’s costs to be assessed on the standard basis. It would seem just for costs to follow the event. As I have no heard any argument as to costs, I shall give the parties an opportunity to make

written submissions as to costs. Any such submissions should be served on the Adjudicator and on the other party by 5pm on 14^th May 2010

 

 

DATED 30th April 2010.

 

 

 

 

 

BY ORDER OF THE ADJUDICATOR