REF/2009/0850

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

BETWEEN

ALEXANDER D'ESTOVILLE SKIPWITH

 

APPLICANT

and

 

AMARJIT SINGH

RESPONDENT

 

Property Address: Loft space at Top Floor Flat 181C Blythe Road London W14

 

Title Number: NGL683306 and NGL455356

 

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

 

Sitting at: Victory House 30-32 Kingsway London WC2B 6EX

 

On: 12th and 13th April 2010

 

Applicant representation: Mr Stan Gallagher of Counsel instructed by Ashworths solicitors

Respondent representation: Mr Justin Shale of Counsel instructed by Solicitors-at-law

 

 

KEYWORDS – Adverse possession – Lease – Loft Room – Encroachment on landlord’s title – Accretion to Lease – Limitation Act 1980 – Sch 6 Land Registration Act 2002 – Form NAP - failure to serve counter-notice under Sch 6 para 5

 

CITATIONS:

J F Perrott & Co Ltd v Cohen [1951] 1 KB 705 (CA)

Batsford Estates (1983) Co Ltd v Taylor and another [2005] EWCA Civ 489

Ali v Tower Hamlets London Borough Council [1996] EGCS 193

J A Pye (Oxford) Ltd v Graham and another [2003] 1 AC 419

REF/2007/0103 Cooper and Cooper v Gick (25^th March 2008)

Baxter v Mannion [2010] EWHC 573

Jourdan on Adverse Possession at para 25-01, 25-26

Megarry & Wade’s Law of Real Property (7^th ed ) para 35-027

 

The parties’ titles

1. The Applicant is the sole proprietor of the second floor flat known as 181C Blythe Road, London W14 0HL (“Flat C”), registered under leasehold Title number NGL683306. The Respondent is the sole proprietor of 181 Blythe Road, registered under freehold title NGL455536 (“the freehold”), having been registered as such since 13^th March 1989. 181 Blythe Road is divided into three flats – Flat C on the top floor, Flat B on the first floor, and Flat A on the ground floor. The Respondent lives in Flat A. The property was converted by the Respondent into these three flats in late 1988 or early 1989. The lease of Flat C was granted on 10^th May 1991 (“the Lease”), to the Respondent’s son Mr Karamjit Singh (“Mr Singh Junior”), for a term of 99 years commencing on 1^st December 1988. The unexpired residue of the term was assigned to the Applicant by Mr Singh Junior, and the Applicant has been registered as proprietor of Flat C since 22^nd November 1999.

 

The Applicant’s application

2. On 3^rd November 2008 the Applicant applied to the Land Registry in Form ADV1, to be registered as proprietor of a “Loft Room” coloured blue on the application plan, by way of adverse possession and as an “accretion” to the Lease. The Form ADV1 was modified by the addition of the following words on the top left hand corner of the first page: “NB THIS IS AN APPLICATION FOR REGISTRATION OF AN ACCRETION TO THE APPLICANT’S LEASEHOLD LAND BY WAY OF AN ENCROACHMENT ONTO THE LANDLORD’S NEIGHBOURING FREEHOLD LAND – THE ADV1 HAS BEEN ADAPTED ACCORDINGLY.” In fact, the Land Registry had already rejected a previous purported application, where the ADV1 had been modified by the deletion of the words “Application for registration of a person in adverse possession under Schedule 6 to the Land Registration Act 2002”. Notice of the application was served on the Respondent, as freeholder, who filed an objection by way of Form NAP1 on 30^th March 2009. In panel 5 of the form the Respondent did not tick the box requiring the registrar to deal with the application under paragraph 5 of Schedule 6 to the Land Registration Act 2002 (“the 2002 Act”). Instead, he ticked the box “I object to the registration on the grounds stated in panel 6”. Panel 6 simply refers to the Statement of Truth of Mr Mehrota, the Respondent’s solicitor, although the statement itself does refer, in passing, to the requirements of paragraph 5. The dispute could not be settled by agreement, and eventually on 1^st July 2009 the Chief Land Registrar referred it to the Adjudicator under section 73(7) of the 2002 Act.

 

The physical layout

3. I had the benefit of a Site View prior to the hearing. As I have said, 181 Blythe Road is a Victorian or Edwardian terraced house converted into three separate flats. The main entrance to Flat A – where the Respondent lives – is on the (western) side of the house. The front door to No. 181 – which faces more or less due north – leads into a small hall and a staircase. There is a door into the hall on the ground floor, which is an alternative, but little used, entrance to Flat A. The staircase leads to the first and second floors. There is a separate entrance to Flat B on the first floor, and a separate entrance to Flat C on the top floor. Flat C is on two levels. On the second floor there are two double bedrooms, a large reception/dining room, a kitchen and two bathrooms. There is a “step through” staircase – a cross between an almost vertical staircase and a wooden ladder – within Flat C, leading from the second floor to a loft room immediately under the roof (“the Loft Room”). The Loft Room is approximately 19 feet long by 12 feet wide, is carpeted, enjoys natural light through a skylight and a Velux window, and has the benefit of electric lighting and power points. The entrance into the Loft Room is on its western side. Immediately before entering the Loft Room, at the top of and accessible from the staircase, there are storage areas under the eaves. There is electric light within these areas, which are partitioned off and invisible from the Loft Room itself. At least two water tanks can be seen within these areas, one to the left and one to the right of the staircase. There is a third water tank, behind the southern wall of the Loft Room, so I was told. These tanks serve the three flats – although the Applicant believes that Flat A’s tank is no longer in use. The Loft Room, despite the slightly uncomfortable means of access, is clearly in use.

 

The evidence

4. At the hearing before me both parties were represented by Counsel. The Applicant gave evidence, as did a previous tenant of Flat C, Mr Anthony Cake; Ms Catherine Bradshaw, the current owner of Flat B; Mr Daniel Proops, who accompanied the Applicant on his pre-purchase inspection of Flat C in 1999. A witness statement of Mr Yuri Pidlypnyy, a builder, was read, and the facts not challenged by the Respondent. A statement from Ms Christian McDonald was also read. It was not formally admitted by the Respondent, but Ms McDonald was unavailable and could not be called. For his part, the Respondent gave evidence, as did his son, Mr Singh Junior. Although his wife had made a witness statement she was not required to be called. The same applied to the evidence of the Respondent’s surveyor, Mr Little.

 

The background to the dispute

5. The dispute arose in this way. By a tenant’s notice of claim dated 7^th November 2007, the Applicant invoked the procedure under the Leasehold Reform, Housing and Urban Development Act 1993 (“the 1993 Act”) for an extension of the terms demised under the Lease for an additional period of 90 years. The Respondent served a counter-notice under the 1993 Act, admitting the claim but disputing the amount of the proposed premium to be paid. Subsequently, as part of the lease extension process a valuer appointed by the Respondent visited Flat C. This was Mr Robert Little. On his visit he inspected the Loft Room, which was not apparently included within the demise under the Lease. The property included in the Lease was described by reference to a plan, and it is clear that the Loft Room is not shown on that plan. At this point the Respondent purported to withdraw his counter-notice, on the grounds that the Applicant’s occupation and improvement of the Loft Room amounted to a breach of covenant entitling him to forfeit. In the event, the lease extension proceedings in the Leasehold Valuation Tribunal have been stayed, pending the outcome of the Applicant’s application to (in effect) add the Loft Room to the Lease by accretion. If the application succeeds, as I understand it, the application to extend the term of the Lease will also include the Loft Room. This, therefore, is the background to the present application to the Land Registry.

 

Findings of Fact

6. In the light of the evidence which I heard, both orally and in the form of the witness statements, my findings of fact are as follows:

6.1  When 181 Blythe Road was converted into flats, in 1989, as part of the works the loft room above Flat C was given an electric supply, a Velux window, a skylight and the floor was boarded. It was accessible by a ladder.

6.2  When the Respondent showed Christian McDonald, a potential purchaser, around Flat C, together with her parents, he also showed them the Loft Room, which, although accessed by a ladder, appeared to be an integral part of the flat.

6.3  Shortly after Mr Singh Junior obtained the Lease of Flat C in 1991, he carried out additional works to the Loft Room, consisting of enclosing the roof space and water tank area with plasterboard panels. The result was that the Loft Room was separated entirely from the roof space, which was still accessible from the ladder.

6.4  When Christian McDonald inspected Flat C in 1989 she recalls power points in the Loft Room. The Respondent says it is possible that there were temporary power points there at the time. Mr Singh Junior says that he installed them in 1991. I conclude that there was at least one power point present in the Loft Room in 1989, but these were added to by Mr Singh in 1991. As I recall, there are now at least two such points in the room.

6.5  As from the date that the Lease to Mr Singh Junior was granted, in May 1991, the Loft Room was physically accessible exclusively through Flat C itself. Although the Respondent, as Lessor, had certain rights of access to those parts of the building that lay outside the demise of Flat C, these were only exercisable for the purposes of repair and so forth. Accordingly, the Respondent retained no general right of access to the Loft Room.

6.6  When Mr Singh Junior first rented out Flat C - and he himself never lived there - he gave permission for the Loft Room to be used.

6.7  The Loft Room was used as a bedroom from 1996 onwards at the latest, which use continued with one or two interruptions up until 2008. According to Mr Cake, although he took over the room in 1996 it was previously used by Mr Dunne, the original tenant of Flat C. It is therefore probable that the room came into use as a bedroom some time between 1991 and 1996.

6.8  Between 1993 and 1999 Mr Singh Junior did not visit Flat C, had no dealings with the tenants, and did not even have the keys. These were kept by the Respondent and his wife. Mrs Singh Senior primarily dealt with the tenants of Flat C, although on occasions her husband would collect rent. On at least one occasion he entered Flat C, and climbed part way up the ladder, for the purpose of carrying out repairs to a flat roof.

6.9  In 2001 major works of repair were carried out to the main roof of 181 Blythe Road, including the roof immediately above the Loft Room. On this occasion the skylight to the Loft Room was replaced. The Respondent's own building company quoted for the works, but did not carry them out.

6.10                      In 1999, when Mr Singh Junior put Flat C up for sale, the Sales Particulars stated that the flat included the Loft Room, measured at 19x12 feet. According to Mr Skipwith, this added value to the flat and he was therefore prepared to pay more for it.

6.11                      The solicitors who acted either in 1991, on the grant of the Lease, and in 1999, on the sale of the Lease, did not advise that the Loft Room was outside the demise.

6.12                      Mr Skipwith was not aware, until the lease extension proceedings in the Leasehold Valuation Tribunal, that the Loft Room was not included in his Lease.

6.13 In 2005 or thereabouts the Applicant carried out works to Flat C. These included the replacement of the ladder with a "step-through" ladder - a sort of vertical staircase - and an enlargement of the aperture into the Loft Room. Apart from that, only works of redecoration and minor improvement (replacement of the light fittings, for example) were carried out to the Loft Room. Structurally, it is the same now as it was when the building was converted in 1989.

 

7. Based upon these findings, I also draw the following inferences. First, Mr Singh Junior believed, at all material times, that the Loft Room was included within the demise of Flat C. I should say that I found him to be a largely reliable witness. The period during the 1990s when he had fallen out with his parents was obviously very difficult for him, and it was no doubt painful and embarrassing for him to give evidence regarding these matters. However, I thought he did his best to give an accurate account of the history. In the circumstances, I do not believe that he would have deliberately deceived potential purchasers in 1999 by advertising the Loft Room as part of Flat C. I am sure that he genuinely believed that it was included in his Lease. This is consistent with the fact that he carried out improvement works to the Loft Room as soon as he obtained the Lease, and that he gave tenants permission to use it. He did not give express permission for it to be used as a bedroom (it is described as "Loft Room" in the Particulars of Sale), and this may well reflect the absence of Building Regulation approval for use as a bedroom. It may also reflect concerns about the insurance and landlord's liability position, which the Respondent referred to in his evidence. However, he did not forbid his tenants from using the room as a bedroom, and given the fact that it had electricity and natural light through the skylight and Velux window and that it was laid out as a habitable room, it must have been at least within his reasonable contemplation that it would be used for that purpose. Secondly, I also infer that Mr Singh Senior has always considered that the Loft Room formed part of the demised premises. I cannot see that his actions are explicable in any other way. When he converted 181 Blythe Road into flats, he could simply have left the area above Flat C as a normal attic space, capable of housing water tanks, and for light storage, but otherwise unadapted as a living room. Instead, he spent what was doubtless an appreciable sum of money on boarding the floors, inserting a skylight and Velux window, and running a power supply into the loft. The result was no doubt to add to the amenities of Flat C - which would have an impact on its value - but it could not in any way benefit him as the freeholder and Lessor. Once the Lease was granted, he had no further rights in relation to the Loft Room, since he had failed to reserve any access to it. Indeed, it is inconceivable that any eventual purchaser of Flat C would tolerate the existence of a separate room above, accessed through the common areas of Flat C. The conversion of the Loft Room - albeit without formal approval by the authorities, and without a fixed staircase - only makes sense if it was intended to form part of Flat C. Indeed, this is consistent with the evidence of Ms McDonald, which the Respondent, in cross-examination, largely accepted as true. According to her, Mr Singh Senior trteaed the Loft Room as part of FlatC when showing it off for sale. Mr Singh Senior was uncertain as to the sequence of events with regard to the preparation of the Lease plan. It certainly bears a very strong resemblance to the plans prepared for the purposes of obtaining planning approval, and he accepted that the same architect had also drawn the Lease plan. The Loft Room does not of course figure on the planning approval plans, since it was not formally part of the conversion works. It is easy to see, therefore, how the Loft Room could have been omitted from the Lease plan, and therefore how the mistake could have occurred. If a separate surveyor had been instructed to draw a plan of the flats as converted, without reference to the planning approval plan, the separate loft room would have been obvious. Furthermore, it is a fact that the Loft Room has been unavailable to the Respondent since May 1991. During a large part of that time it has been occupied by the sub-tenants of Flat C, and, since 1999, by Mr Skipwith and his family. Mr and Mrs Singh Senior were collecting rent for the flat for many years in the 1990s, Mr Singh Senior was concerned with repairs to the roof in 2001, and entered Flat C and climbed the ladder during Mr Cake's occupation. It seems to me that the Respondent must either actually have been aware that the room was in full use as part of Flat C or, at the very least, he was simply unconcerned with its use since (from his point of view) it was nothing to do with him. Either way, the overwhelming probability is that, once the Lease had been granted, he believed that the Loft Room was no longer his property.

 

The Applicant’s case in law

8. In the light of these findings, can the Applicant establish that the Loft Room has been added to the Lease by "accretion"? At this point I need to say something about the way in which he has formulated his case. The application was of course made in Form ADV1, namely under Schedule 6 of the 2002 Act. Schedule 6 of the 2002 Act contains the new regime for barring registered titles, in force in relation to the period after 13th October 2003. However, the form was modified by the Applicant, as I have stated. The purpose was to notify the Land Registry (and the freeholder) that a freehold title was not claimed, merely a leasehold title, enduring for the same period as the Lease itself. The original application in ADV1 was rejected by the Land Registry, because the words "claim for adverse possession under Sch 6" had been deleted. Not surprisingly the Land Registry refused to accept this as a valid application, and a modified ADV1 was lodged as stated above. The effect, however, is that the application is brought under the new regime. However, the Statutory Declaration in support, made by the Applicant on 31^st October 2008, refers to more than 12 years' adverse possession commencing in May 1991. In the circumstances, Mr Gallagher argues that the Applicant may also rely on the pre-2002 Act law of adverse possession, on the basis that title under Section 15 of the Limitation Act (and section 75 of the Land Registration Act 1925) was acquired on some date prior to 13th October 2002. The Respondent did not seek to argue that the Applicant was precluded from relying on the pre-2002 law, and in my judgment that position is correct. If the evidence establishes that the registered title had become barred prior to 13^th October 2003, the fact that the application was made under Schedule 6 (in Form ADV1) cannot in some way revive the freeholder’s title. If the title was barred prior to 2003, the freeholder has at all material times held it on trust for the Applicant under section 75 of the 1925 Act. Accordingly, there are two issues before me: (1) had the Respondent's title to the Loft Room been acquired by the Applicant (as an accretion to the Lease) by way of adverse possession prior to 13th October 2003? (2) if not, is the Applicant entitled to be registered with (leasehold) title to the Loft Room under Schedule 6 of the 2002 Act?

 

9. The Applicant also seeks to argue an additional point, which does not rely on adverse possession at all. It arises in this way. Various authorities have been cited to me, which may be summed up in the following statement of principle contained in Jourdan on Adverse Possession at para 25-01: “Sometimes a tenant under a lease takes possession of land belonging to the landlord, but not included in the demise, by virtue of his possession of the demised premises. If the tenant does this, the land is presumed to be an addition to the land demised to the tenant, so that it becomes subject to the terms of the lease and must therefore be given up to the landlord when it ends, unless the tenant’s conduct shows that he occupied the land for his own benefit and not as part of the demised premises”. That formulation was expressly approved by the Court of Appeal in Batsford Estates (1983) Co Ltd v Taylor and another [2005] EWCA Civ 489. Mr Gallagher, for the Applicant, analyses the authorities relating to this presumption in some detail, in order to establish the underlying rationale. Mr Gallagher submits that these cases establish that there is a presumption of law that where a tenant occupies the landlord's adjoining land, outwith the demised premises, he does so as an accretion to the tenancy, and not in his own right. Accordingly, when the tenancy comes to an end, the additional land must be returned to the landlord. This submission is undoubtedly correct, as far as it goes. However, Mr Gallagher goes further. He submits that the presumption does not rely on limitation at all, but is in effect a species of estoppel. He places particular reliance on J F Perrott & Co Ltd v Cohen [1951] 1 KB 705 (CA) and Ali v Tower Hamlets London Borough Council [1996] EGCS 193. He argues that the encroached upon land may become attached to the demised premises well within the statutory limitation period. Accordingly, a landlord is unable to sue for possession of the additional land even if the tenant has been occupying it for less than twelve (or now ten) years.

 

10. Manifestly, the purpose of the presumption is to protect the landlord. If a tenant who trespasses on the landlord's adjoining land wishes to establish some separate title by way of limitation, which endures beyond the termination of the tenancy, he must do some act which rebuts the presumption I have referred to. This act must unequivocally bring to the landlord's attention that the tenant is asserting his own, separate, title to the land. In other words, the landlord can safely assume that the tenant's encroachment on his adjoining land will, at worst, extend the area subject to the tenancy, unless the tenant takes a positive step to alert the landlord that the encroachment is intended to establish a separate title that survives the end of the tenancy. The common sense of this presumption is obvious. However, where I believe Mr Gallagher has fallen into error is in submitting that the presumption has nothing to do with limitation or, rather, operates outside the law of limitation. On his argument, an encroaching tenant can add adjoining land to his demise without being obliged to show twelve (or now ten) years' worth of adverse possession. He was unable to identify any precise period of encroachment that would be sufficient - it seems that any period, however short, would suffice, if the circumstances were right.

 

11. The passage at paragraph 25-01 in Stephen Jourdan's Adverse Possession which Mr Gallagher cited does not, and does nor purport to, establish a principle of encroachment that operates independently of the law of limitation. It is no coincidence that this passage is found in a book entitled “Adverse Possession". Indeed, the following statement of the law is at paragraph 25-26 of Jourdan – “Absent an express or implied agreement that the land encroached on should be added to the demised premises, or an estoppel preventing landlord and tenant from denying that the land encroached on is part of the demised premises, there can be no bar to the landlord recovering possession from the tenant of the land encroached on during the limitation period”. Mr Gallaher submits that this statement is wrong and unsupported by authority. He also relies on paragraph 35-027 of Megarry & Wade’s Law of Real Property (7^th ed) to support his argument that the presumption does not rest upon the law of limitation. However, the statement which he cites is immediately preceded by this passage: “….if the tenant occupies other land belonging to the landlord but not included in the demise, after the expiry of the limitation period that land is presumed to be an addition to the land demised to the tenant (“a mere extension of the locus of his tenancy”) so that it becomes subject to the terms of the tenancy”.(my emphasis added).

 

12. In my judgment, the presumption only becomes operative after the tenant has enjoyed a sufficient period of adverse possession to bar the landlord's title, absent the presumption. Otherwise, a landlord would be in a different and less favourable position than a third party, whose land is encroached on by a tenant. The third party can recover possession from the encroaching tenant at any time during the limitation period. On Mr Gallagher's case, a landlord is unable to do so, from some indeterminate time after the encroachment begins, being less than the full limitation period. In effect, Mr Gallagher's doctrine disapplies the Limitation Act to a landlord's right to recover his adjoining land from an encroaching tenant. In my view, and with due deference to Mr Gallagher’s ingenuity, this is a wholly misconceived argument, which has no basis in authority, is manifestly unjust, and would lead to an absurd result. I agree entirely and respectfully with the passage in Jourdan at 25-26, and the statement in Megarry & Wade recited above, which correctly state the law. Accordingly, the Applicant's claim must stand or fall by the application of the law of adverse possession simpliciter, both pre- and post- the 2002 Act.

 

Adverse possession

13. The law of adverse possession - although the time limits are different - is the same whether the new or the old regime are invoked. The classic statement of the legal requirements are set out in the leading case of J A Pye (Oxford) Ltd v Graham and another [2003] 1 AC 419. The basic requirements are (a) factual possession of the land coupled with (b) an intention to possess, as those phrases have been judicially defined. I do not believe that there was any dispute between Counsel as to the facts and matters required to be proved by the Applicant in order to satisfy these requirements. In my judgment, and having regard to the findings of fact set out above, I have no hesitation in holding that the Loft Room was in the factual possession of Mr Singh Junior from the date on which the Lease came into effect, and that he had the necessary intention to possess from that time. Once Mr Skipwith acquired the Lease, he continued in factual possession of the Loft Room with the necessary intention to possess. I reject the Respondent’s submission that there was a sufficient hiatus between the departure of Mr Cake, and the arrival of the Applicant, such as to interrupt the adverse possession. First, because there is no evidence of a hiatus lasting more than a few weeks at the most. Secondly, because in my judgment the mere incorporation of the Loft Room within the physical boundaries of Flat C – i.e only accessible through the front door of Flat C, which was exclusively under the control of the Lessee – is sufficient to constitute adverse possession, whether or not the room was used as a bedroom, a storage area or for any other purpose. The fact is that the Loft Room was at all material times an integral part of Flat C, in the phrase used by Ms McDonald. Accordingly, it follows that the Respondent’s title to the Loft Room became barred in or about May 2003. From that time onwards, the Respondent will have held that part of his title on trust for the Applicant, as an accretion to the demised premises.

 

The application under Schedule 6

14. I am satisfied on the evidence that the Loft Room continued to be treated as an integral part of Flat C throughout the period from May 1991 to the date of the application herein. Certainly from no later than 1996 onwards it was used as a bedroom. Accordingly, whether or not the application had been made by the Applicant under the pre-2002 regime, or under Schedule 6 to the 2002 Act, the Applicant would be able to establish either twelve, or ten, years’ adverse possession, as the case may be. If the application had been treated as made entirely under the 2002 Act, the outcome would be exactly the same. The material parts of Schedule 6 of the 2002 Act read as follows:

1 - (1) A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for a period of ten years ending on the date of the application………..

2 – (1) The registrar must give notice of an application under paragraph 1 to –

(a) the proprietor of the estate to which the application relates……………

(b) Notice under this paragraph shall include notice of the effect of paragraph 4.

3 – (1) A person given notice under paragraph 2 may require that the application to which the notice relates be dealt with under paragraph 5.

(2) The right under this paragraph is exercisable by notice to the registrar given before the end of such period as rules may provide.

…………………………………………….

4 – If an application under paragraph 1 is not required to be dealt with under paragraph 5, the applicant is entitled to be entered in the register as the new proprietor of the estate.

 

5 – (1) If an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the following conditions is met.

(2) The first condition is that -

(a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and

(b) the circumstances are such that the applicant ought to be registered as the proprietor

(3) The second condition is that the applicant is for some other reason entitled to be registered as the proprietor of the estate

(4) The third condition is that –

(a) The land to which the application relates is adjacent to land belonging to the applicant

(b) The exact line of the boundary between the two has not been determined under rules under section 60

(c) For at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and

(d) The estate to which the application relates was registered more than one year prior to the date of the application.

 

Was a counter-notice served?

15. In this case, the application was made on 3rd November 2008, and a letter notifying the Respondent was sent by the Land Registry on 22^nd January 2009, in accordance with paragraph 2(1)(a) of Schedule 6. The letter includes this passage, in bold type: “If you object to the application or wish to give counter notice to the Chief Land Registrar, you must do so before 12 noon on 27 April 2009”. The letter was accompanied by “Explanatory notes”, which state that the purpose of the notice is to allow the Respondent to “either consent….. object, or give counter notice to the Chief Land Registrar.” The notes have a section explaining the three options further. The section headed “Counter notice” explains that in order to require the application to be dealt with under paragraph 5 of Schedule 6, the recipient must either do so by way of the NAP form, or by email, supplying all the information requested in the NAP form. Within the time limit specified in the notice, the Respondent returned the Form NAP1. Panel 5 on the form contains three statements, with a box to be ticked to indicate which statement is correct. The first is: "I consent to the registration of the applicant(s)". The second is: "I require the registrar to deal with the application under Schedule 6, paragraph 5, to the Land Registration Act 2002". The third is: "I object to the registration on the grounds stated in panel 6". It is this last box which the Respondent ticked. If one turns to panel 6 in the NAP form, reference is made to the Statement of Truth of Mr Mehrotra, the Respondent's solicitor. That document runs on for several pages, essentially challenging the Applicant's claim on the facts. However, at the end Mr Mehrota also states that the Applicant cannot bring himself within paragraph 5 of Schedule 6, denying that any representation was made by the Respondent, and asserting that the Loft Space was excluded from the Lease and therefore it would be unreasonable to believe it was included. In the Applicant’s Statement of Case, the only issue that is dealt with is that of the adverse possession itself, for the required period. The Respondent’s Statement of Case sets out the conditions contained in paragraph 5, and repeats what is said in Mr Mehrotra’s Statement of Truth as to estoppel, and reasonable belief.

 

16. It is clear from the provisions I have referred to that, as a matter of law, unless the registered proprietor requires the registrar to deal with the application under paragraph 5 of Schedule 6, that paragraph will not be engaged. In that event, the applicant is entitled to be registered as proprietor under paragraph 4, assuming always that he can make out the requisite period of adverse possession. The applicant does not have to meet the paragraph 5 conditions unless the registered proprietor invokes them. Here, the Applicant submits that the Respondent has failed to do so. He points to the failure to tick the correct box in panel 5 of form NAP. The Respondent has not, by any accepted means, required the registrar to deal with the application under paragraph 5. The Respondent accepts that the necessary box was not ticked, and no other form of counter-notice was given. However, Mr Shales points to the reference to paragraph 5 contained within the Statement of Truth, which is itself referred to in Panel 6 of the NAP form. Accordingly, he argues, the provisions of paragraph 5 have been invoked, albeit indirectly.

 

17. I have to say that my first instinct would be to allow the Respondent to rely on the paragraph 5 conditions. The dispute has been referred to the Adjudicator to determine the issue of adverse possession. Necessarily, since the Applicant is relying on the pre-2002 Act regime, I have heard evidence of the entire history of the use of the Loft Room since 1989. Although it is true that the paragraph 5 conditions were not formally in issue, it is difficult to see what further evidence could have been supplied by either party, had the conditions been in issue. The courts have long since abandoned a slavish adherence to the parties’ pleaded cases, subject of course to avoiding any injustice or unfairness to either side The Adjudicator ought, in my view, to tend towards flexibility in dealing with references, and usually does so. Indeed, in this reference I have allowed the Applicant to pursue a case based on the Limitation Act 1980 – i.e the pre-2002 Act law – even though formally this is an application under Schedule 6. However, as Mr Gallagher points out, this is not simply a matter of pleadings. The right to require the application to be dealt with under paragraph 5 is a statutory one. In order to engage the paragraph, the registered proprietor must follow the procedures set out in Schedule 6 itself. The notice from the Land Registry, and the accompanying notes, make it absolutely clear to the proprietor that a counter-notice must be served, whether by ticking the box in Form NAP, or by email. The Respondent could not reasonably have been in any doubt as to what was required if he wished to engage paragraph 5. As was said by Henderson J in Baxter v Mannion [2010] EWHC 573 (see paragraph 9), “The form NAP could hardly be simpler.”. Although, as I have said, there is a reference to paragraph 5 in the Statement of Truth in support of the NAP, it cannot be said that the Respondent ever gave notice to the Land Registry requiring the application to be dealt with under paragraph 5. Indeed, the Case Summary accompanying the reference to the Adjudicator does not mention paragraph 5 at all. In another decision of the Adjudicator, REF/2007/0103 Cooper and Cooper v Gick (reported on the Adjudicator’s website), issued on 25^th March 2008, it was held that a registered proprietor who failed to serve a counter-notice in the prescribed manner lost the right to require the application to be dealt with under paragraph 5. Albeit with a slight degree of reluctance, I think that on the wording of Schedule 6 I must also reach the same conclusion, and accordingly the Applicant is not obliged to prove any of the paragraph 5 conditions. Since he has established ten years’ adverse possession prior to the date of the application, he is entitled to be registered as proprietor, assuming that this application is dealt with under paragraph 6.

 

If paragraph 5 applies, have the conditions been satisfied?

18. Even if I were wrong about the inapplicability of the paragraph 5 conditions, and the Applicant is obliged to prove that one or more of the conditions applies, in my judgment he still is entitled to succeed. Although I do not think that there was any “equity by estoppel” in this case, in my judgment the Applicant can rely on the third condition, namely that “…for at least ten years …… the applicant (or any predecessor in title of his) reasonably believed that the land to which the application relates belonged to him…”. Mr Shale, for the Respondent, submitted that this could not apply in the present case, since the Lease plan clearly excludes the Loft Room. He suggested that the third condition was intended to deal with uncertain boundaries, where there was no clear boundary feature, and neither party could be certain where the boundary was by reference to the filed plan. I agree that the third condition will obviously be readily applicable to the situation of an uncertain physical boundary. However, it is obviously not limited to that situation. The filed plan relating to the registered title of Flat C depicts the outline of the entire building known as 181 Blythe Road, with a note that “As to the part tinted blue on the filed plan only the second floor flat is included in the title”. That is the extent of the description. The lease plan itself does not form the filed plan, although of course it would have been available to the Applicant and his predecessor. I have found as a fact that all relevant parties – the Respondent, his son, Mr Singh Junior, and the Applicant – have from the commencement of the Lease consistently believed that the Loft Room formed part of Flat C, and treated it as such. It seems very likely that the Lease plan was used by mistake, being the planning permission plan which did not show the Loft Room at all. The description – “the second floor flat” – as used in the register, necessarily includes the Loft Room since, as I have explained, it was an integral component of the flat and enclosed within it’s apparent boundaries. In my judgment, whether or not an applicant was reasonable in his belief that the land in question belonged to him is a question of fact to be decided in the particular circumstances of each case. Given (a) the common belief of the Respondent and his son when the Lease was granted (b) the Applicant’s belief that the Loft Room was included in Flat C (based, among other things, on the Sales Particulars), (c) the fact that the Loft Room has always been physically included within Flat C and therefore (d) unavailable to the Respondent, in my judgment the Applicant and his predecessor in title did have the reasonable belief required under the third condition. Accordingly, even if the Respondent is entitled to require the application to be dealt with under paragraph 5 of Schedule 6, the Applicant will still succeed.

 

Conclusion

19. I shall therefore direct the Chief Land Registrar to give effect to the Applicant’s application dated 3^rd November 2008 as if no objection had been received. It is my inclination to award the Applicant his costs of these proceedings, on the basis that costs normally follow the event. However, I shall allow the Respondent an opportunity to make submissions on the issue, within 14 days of the date of this Decision, and the Applicant may respond within 7 days thereafter. It would be helpful if the Applicant lodges a detailed breakdown of his costs if he wants a summary assessment, or alternatively indicates that a detailed assessment is preferred.

 

Dated this 4^th day of May 2010

 

 

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY