REF/2010/0210

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

THE SECRETARY OF STATE FOR TRANSPORT

 

APPLICANT

 

and

 

QUEST MAIDSTONE LIMITED

RESPONDENT

 

Property Address: Land adjoining Abbey Court, Chatham Road, Sandling, Maidstone ME14 3AL

 

Title Numbers: K774549

 

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

 

Sitting at: Victory House, 30-34 Kingsway, London WC2B 6EX

 

On: 10^th and 11^th March 2011

 

 

Applicant Representation: Mr Thomas Jefferies of Counsel instructed by Pannone LLP Solicitors

Respondent Representation: Mr Timothy Morshead of Counsel instructed by Svedberg Law Solicitors

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

KEYWORDS – registration of freehold with possessory title based on 12 years’ adverse possession – land in ownership of Crown – application to close title on grounds that 30 years’ adverse possession required - adverse possession not made out for requisite period – whether title acknowledged – acknowledgment sent indirectly to paper title owner- effect of acknowledgment sent to District Valuer – whether time runs against the paper title owner after section 96 of the Land Registration Act 2002 came into force – order that the Disputed Land should be removed from the Respondent’s title

 

Citations

 

AG for Ceylon v Silva [1954] AC 461

Edgington v Clark [1964] 1 QB 367 (C.A).

Town Investments v Dept of the Environment [1978] AC 359 (H.L

Re Compania de Electricidad [1980] Ch 146

Markfield Investments Ltd v Evans [2001] 1 WLR 1321 (CA).

J.A Pye (Oxford) Ltd v Graham and anor [2003] 1 AC 414

Kleanthous v London Borough of Barnet REF/2005/1168

Rehman v Benfield [2006] EWCA Civ 1392

Allen v Matthews (CA) [2007] 2 P & CR 441

Moore v Buxton & Buxton REF/2007/1216

 

Law of Property Act 1925 section 1

Limitation Act 1980 sections 15, 17, 29 and 30

Land Registration Act 2002

Secretary of State for Transport Order 1976/1775 article 4

 

Jourdan and Radley-Gardner on Adverse Possession (2^nd ed.)

 

 

 

INTRODUCTION

 

1.      This dispute relates to an area of land bounded to the south and east by the house and grounds of Abbey Court, to the north by a fenced public footpath running parallel with and just to the south of the M20 motorway, and to the west by a fence which runs alongside a busy trunk road known as the A229 close to its junction with the M20. On 1^st July 1997 the land was first registered with Title number K774549. The first proprietors, registered with a the class of possessory title, were Mr Michael Charles Thompson (“Mr Thompson”), and his then wife Toni Thompson. I shall refer to it as “the Disputed Land”. Abbey Court itself is a large house with outbuildings, currently in commercial use as offices, with substantial grounds including two fishing lakes lying to the east and south of the house. Were it not for the close and aurally intrusive proximity of the M20 and A229, it might fairly be described as a rural idyll. The whole parcel is registered with title absolute, under title number K363831, and the house is situated in the north-western section of the plot. I shall refer to the registered title as “the Abbey Court Title”, and to the house itself as “Abbey Court”. The proprietors are the trustees of the Lake Communications Limited Pensions Scheme. These include Mr Thompson, one of the original proprietors of the Disputed Land, and the Managing Director of and shareholder in both the Respondent company and Lake Communications Limited which, as I understand it, are companies within the same group. The house known as Abbey Court is close to the southern boundary of the Disputed Land, but is at a higher level. At this point, therefore, in the western section of the Disputed Land, there is a fairly steep bank which creates a physical boundary, in the loosest sense, with the Abbey Court Title to the south. The difference in levels diminishes towards the east, so that the Disputed Land, where it abuts the Abbey Court Title to the east and north of Abbey Court, close to one of the fishing lakes, is at the same level. There is no boundary feature here, and it is possible to walk into the Disputed Land without difficulty. The Disputed Land contains a number of trees and shrubs, which are quite thick in parts. The eastern section closest to the fishing lake is quite open, with the ground showing some evidence of having been cleared.

 

2.      As I have mentioned, the Disputed Land was first registered with a freehold title in July 1997 on the basis of claimed adverse possession. The class of freehold title – possessory – reflected the basis of the Thompsons’ claim to ownership. The application was based on a Statutory Declaration by Mr Thompson dated 25^th June 1997. In this declaration, Mr Thompson explained that he and his wife Toni purchased the Abbey Court Title in 1995, and prior to that time it had been owned by another company of which he was a director, namely Sample Surveys Limited (“SSL”). In essence, he declared that since the purchase of the Abbey Court Title by SSL (variously put at 1981 or 1986, but in fact 1986), and during his and his wife’s ownership of the Abbey Court Title from 1995 onwards, the Disputed Land was not fenced off from the Abbey Court Title, and “….has been used as part of the overall Property and trees and surrounds trimmed and tended and on occasions the area has been used for the long term store of equipment and vehicles. From 1986 to 22^nd December 1995 [SSL] has been in full free and undisturbed possession and enjoyment of the CPO land (until taken by the local highways authority) and [the Disputed Land] …. and from 1995 until the date of this declaration my wife and myself have been in full free and undisturbed possession and enjoyment of the [Disputed Land] and no-one has made a claim against us in respect of it.” I shall explain in due course the meaning of the phrase “the CPO land” as used by Mr Thompson. On the basis of this evidence, and a survey carried out by the Land Registry at the time, the Disputed Land was registered with possessory title in the Thompsons’ name.

 

3.      On 12^th March 2008 the Applicant became registered with title absolute as proprietor of a parcel of land to the north and west of the Disputed Land, comprising the land occupied by the footpath I have referred to, and sections of the M20 and A229 including embankments, bridges and so forth. The application for first registration related to the entirety of the land conveyed to the Minister of Transport by a Conveyance dated 13^th March 1947 (“the 1947 Conveyance”) from a Mr Epps (“the Epps Land”). The Epps Land included the Disputed Land. However, at the time of the Applicant’s application for first registration it had of course already been registered with possessory title. Accordingly, it was excluded from the Applicant’s title opened by the Land Registry - K936820 – and the Applicant was advised to make an application to remove the Disputed Land from the Respondents’ title. Such an application was made on 11^th May 2009, based on the proposition that the Disputed Land was in the Crown’s ownership, and therefore a limitation period of 30 – not 12 – years was applicable. The Respondent accepted that a 30-year period is required, but objected by letter dated 18^th June 2009 on the grounds that the Applicant’s title had become barred by the date of the application. The dispute could not be resolved by agreement, and on 19^th February 2010 the Adjudicator received the reference from the the Chief Land Registrar under section 73(7) of the Land Registration Act 2002 (“the 2002 Act”).

 

4.      I heard this reference over a period of two days, with a site view on the day before the hearing. At the hearing, the Applicant was represented by Mr Thomas Jefferies, and the Respondent by Mr Timothy Morshead, both of Counsel. Since the Applicant’s pre-registration title to the Disputed Land was admitted, they agreed that the evidential burden of proof lay on the Respondent, and accordingly Mr Morshead opened the case to me and called his evidence first. That evidence consisted of two witnesses, Mr Thompson himself, who was cross-examined on his 1997 Statutory Declaration and two witness statements, and Mrs Svedberg, the Respondent’s solicitor and (as it happens) Mr Thompson’s current wife. Although Mrs Svedberg could not assist with historic evidence as to the use of the Disputed Land, since she did not become familiar with it until 2004 at the earliest, she had taken a statement from a previous owner of Abbey Court, Mr Rodney Allen, as to the use of the land between 1976 and 1986 – a critical period of time. In her Statutory Declaration, dated 4^th February 2010, she reported the contents of two conversations with Mr Allen with regard to the Disputed Land, which was relied upon as a hearsay statement since Mr Allen himself did not give evidence. I shall explain the significance of this in due course. Mrs Svedberg also produced some photographs of the site in her witness statement. Live evidence on behalf of the Applicant was given by Ms Sarah Collins, a Manager in the Property Acquisitions Team of the Highways Agency, who had made a witness statement. Ms Lisa Henderson, of the Highways Agency, produced a number of maps and plans, but was not cross-examined.

 

THE RELEVANT HISTORY

5.      Before I describe the evidence of adverse possession, I shall set out in brief a simplified history of the Disputed Land and the surrounding area, so far as it may be relevant. Much of this history is culled from the documents, and is largely agreed. As I have said, by virtue of the 1947 Conveyance, the Minister of Transport acquired the Epps Land, which included the Disputed Land. The Epps Land abutted the north-western boundary of the Abbey Court Title (then unregistered), from which it ran northwards along the eastern side of the A229 Trunk Road. The Disputed Land forms the extreme south-eastern corner of the Epps Land where it abuts the Abbey Court Title. The Minister of Transport also acquired adjoining land from a Mrs Ponder by Conveyance dated 23^rd November 1949. This land (“the Ponder Land”) lay to the east of the Epps Land, and to the north and west of the Abbey Court Title. At this time Mrs Ponder also owned the Abbey Court Title (which was first registered in 1971). Both the Epps Land and the Ponder Land were acquired for the purposes of highway works. Eventually the London-Folkestone-Dover Trunk Road (Maidstone By-Pass Improvements) Order 1958 was made, followed by the Maidstone By-Pass Special Road Scheme 1958. Together these authorised the construction of the Maidstone By-Pass (which became part of the M20 in 1990), carried out between 1958 and 1960. As part and parcel of the construction of the By-Pass, it appears that the route of a footpath (FP20) was altered, and fencing was erected to the south of the By-Pass and to the east of the A229. The Maidstone By-Pass was built in an east to west alignment, dividing the Epps Land in two. The A229 Trunk Road runs more or less north to south (currently running underneath the M20 through an underpass). The effect of the road construction was to isolate the southern section of the Epps Land, lying between the fenced southern edge of the By-Pass, and the northern boundary of the Abbey Court Title. I shall call this section of land - which of course includes the Disputed Land – “the Southern Epps Land”.

 

6.      In 1976 the Abbey Court Title was sold to a Mr Rodney Allen. In 1986 he sold it to SSL, Mr Thompson’s company. Subsequently, the Secretary of State for Transport proposed to widen the Maidstone By-Pass and to incorporate it into the M20 motorway. The M20 Motorway (Coldharbour Lane to Sittingbourne Road Section Side Roads) Order 1990 was made on 26^th November 1990. In order to facilitate the proposed works, it was necessary to compulsorily purchase land lying alongside the existing Maidstone By-Pass and A229. This resulted in a Compulsory Purchase Order dated 28^th December 1990 (“the CPO”) for various parcels of land adjoining the proposed M20/A229 junction. The parcels of land were identified by number on the plan and schedule at page 232-246 of the Bundle. These included a strip of land along the southern edge of the M20. Parcels 28 and 28a comprised the northern edge of the Abbey Court Title, subsequently purchased by the Applicant from SSL in 1994. At the same time, Parcels 2/26, 2/26a, 2/26b and 2/26c were identified. These parcels (revealingly described as “wooded wasteland”) comprise part of the Southern Epps Land, and (simplifying somewhat) at that time occupied the area between the Disputed Land, and (a) the southern edge of the Maidstone By-Pass before it became widened and incorporated into the M20 to the north, and (b) the eastern verge of the A229. This is the land, described in Mr Thompson’s Statutory Declaration as “the CPO land” and was, according to him, in the “full free and undisturbed possession and enjoyment” of SSL until compulsorily acquired and occupied by the Applicant in or about 1990. It is apparent from the CPO documentation that this land (forming part of the Epps Land and owned by the Secretary of State) was at that time identified as being in unknown ownership. Unfortunately, despite search being made, the Applicant has been unable to track down the files relating to the parcels in “unknown” ownership, including 2/26, 2/26a, 2/26b and 2/26c, and it is not known therefore whether the Secretary of State did become aware of his ownership, or whether compensation was paid into court, or whether some other event occurred. The effect of the CPO and road widening, therefore, was to reduce in size the Southern Epps Land lying to the north of Abbey Court, by removing the northern and western sections and leaving the Disputed Land as the rump. As the Statutory Declaration from Mr Thompson made clear, the whole of the Southern Epps Land was originally said to have been in the exclusive possession of SSL between 1986 and September 1990. At all events, from the time that the motorway widening works were completed in or about 1994, the area claimed to have been in the adverse possession of the Respondent and its predecessors in title was limited to the Disputed Land.

 

THE ISSUES OF LAW

7.      There are a number of difficult issues of law which arise in this case. The precise basis of the Applicants’ application is not stated in the letter supporting the original application. What is said is that the initial registration of Mr and Mrs Thompson in 1997 with a possessory title was based on an inadequate period of adverse possession. They and the Land Registry proceeded on the footing that 12 years was sufficient, but in the event – since this was Crown land – 30 years’ possession was required. However, in his Statement of Case, the Applicant contends that the initial registration was the result of a mistake, and alteration of the register is sought under paragraph 5(a) of Schedule 4 to the 2002 Act. The Respondent argues that this is misconceived, since the original registration was with possessory title only. Whereas it would have been a mistake to register the Thompsons with an absolute title in 1997, since clearly they could not demonstrate that the Crown’s title had become barred by that date, registration with possessory title is without prejudice to the paper owner’s rights. Section 11(7) of the 2002 Act provides that “Registration with possessory title has the same effect as registration with absolute title, except that it does not affect the enforcement of any estate, right or interest adverse to, or in derogation of, the proprietor´s title subsisting at the time of registration or then capable of arising.”. On the Respondent’s argument, in 1987 the Land Registry was entitled to register the Disputed Land with a possessory title and no mistake was made. The alternative (unpleaded) way in which the Applicant puts his case is by reliance on paragraph 5(c) of Schedule 4 to the 2002 Act, namely alteration for the purposes of “giving effect to any estate, right or interest excepted from the effect of registration.” On this basis, and having regard to section 11(7) of the 2002 Act, the paper title owner is entitled to apply to the Land Registry to (in effect) close the possessory title, upon proof of his paramount interest. In this case, the precise form of application was to remove the Disputed Land from Title number K774549, and place it within the Applicant’s Title number K936820. Mr Morshead, for the Respondent, sensibly resisted the temptation to take any technical or pleading point against the Applicant, and accepted that he was entitled to proceed under paragraph 5(c) without the need to establish any mistake. In view of the Respondent’s position, I do not need to consider whether the application is properly brought under paragraph 5(a), and shall treat is as being made under paragraph 5(c). I do not think that there are any implications, relating to costs or otherwise, in taking this course. Conceivably, it might have made a difference in terms of any indemnity to be paid by the Land Registry in relation to the correction of a mistake, but I am not aware of any claim for indemnity in this case. Since it is common ground that the Applicant had a paper title to the Disputed Land at the time of the first registration, he is entitled to an order removing the land from the Respondent’s title – in effect, closing the possessory title – unless the Respondent can show that, at some time after 1997, the Applicant’s title had become barred by operation of the Limitation Act 1980 (“the 1980 Act”). That explains why the Respondent accepted that the evidential burden of proof was upon it.

 

BY WHAT DATE MUST THE APPLICANT’S TITLE HAVE BECOME BARRED?

8.      This introduces the more difficult question: what is the relevant 30-year period during which adverse possession must have been enjoyed? By which date must the Applicant’s title have become barred? Mr Jefferies, for the Applicant, in his Skeleton Argument suggests two possible periods. First, if the application is made under paragraph 5(a) (mistake), 30 years prior to 1^st July 1997 – a period beginning no later than 1^st July 1967. Since I am treating this as an application under paragraph 5(c), however, I do not think I need to consider this point further. If paragraph 5(c) is relied on, Mr Jefferies argues that the 30-year period must expire no later than the date of the referred application, namely 11^th May 2009. That period would have to begin no later than 11^th May 1979. Mr Morshead, who contended that the application has to be brought under paragraph 5(c), suggested a third possibility. He argued that time continues to run under the 1980 Act against the paper title owner until the date of this hearing – or probably until the date of the final order of the Adjudicator. He relies on the words of sections 15 and 17 of the 1980 Act, and the decision in Markfield Investments Ltd v Evans [2001] 1 WLR 1321 (CA). On this argument, as long as the Respondent remains in possession of the Disputed Land, only the issue of possession proceedings against it, prosecuted to a successful conclusion, will prevent time from continuing to run against the Applicant. Mr Morshead argues that an application to the Land Registry, or a reference under section 73(7) of the 2002 Act, does not qualify as “an action to recover land” for the purposes of the 1980 Act. On this basis, I think, the 30-year period of adverse possession could commence as late as March 1981. It seems to me that there is also a fourth possibility. On one view of section 96 of the 2002 Act, the 1980 Act ceases to apply at all to the Disputed Land once the 2002 Act came into force. That date was 13th October 2003. If this view is correct, the Applicant’s title must have become barred by that date – which means that the 30-year period must have commenced no later than 13th October 1973. The evidence of adverse possession relied on by the Respondent commences with that of Mr Rodney Allen, who bought the Abbey Court Title on an unknown date in 1976. It is apparent, therefore, that the Respondent can only succeed if the relevant 30-year period of adverse possession expires after 2006. I shall return to these legal issues in due course. Before I do so, however, I propose to summarise the evidence adduced before me, and to make necessary findings of fact.

 

THE EVIDENCE CALLED BY THE RESPONDENT – MR ALLEN

9.      I have already explained that the evidence of Mr Allen covers the period from 1976 to 1986. Mr Thompson’s recollection of the Disputed Land commences in 1986 and he cannot give any direct evidence as to the appearance of the land, or the alleged adverse possession of it, before that year. Accordingly, whichever is the correct 30 year period, as a matter of law, it must include a time when Mr Allen was the owner of Abbey Court. As previously stated, and on the most favourable basis from the Respondent’s point of view, the latest date for the commencement of the period is 1981, some five years before Mr Thompson came onto the scene. However, for the reasons I shall explain, Mr Allen did not give evidence at the hearing, although the hearsay statement contained in Mrs Svedberg’s Statutory Declaration was relied upon.

 

10.  Mr Allen’s evidence, as reported to Mrs Svedberg, is as follows. “6.2. Mr Allen told me that when he bought [Abbey Court] in 1976, he enquired as to the ownership of the Green Land. The Green Land was unsightly, overgrown and covered in brambles. He found out that the land was owned by the Secretary of State for Transport and he said there was some correspondence between himself and the Secretary of State about him buying the Green Land. However, he understood that the Green Land was not for sale and he did not take the matter further. 6.3. He advised that as there was no-one using the Green Land, he authorised his gardener to dump garden waste on the Green Land. I advised him that Mr Thompson had used the Green Land for, among other things, the burning of garden waste, and he said his gardener had done the same. 6.4. I asked Mr Allen if he could remember the location of any fences between Abbey Court and the Green Land. He said that he knew there were some but after all this time he could not remember their location without refreshing his memory. He agreed to contact me again after Christmas with a view to visiting the Property to refresh his memory……7. On 19 January, Mr Allen telephoned to make an appointment to visit the Property and on 22 January 2010 Mr Allen visited the Property. I met him there. During that visit he advised me as follows. 7.1 Except for the area of the Property to the north of his tennis court and his greenhouse (marked “A” on the Plan) he could not now remember the location of any fences adjacent to the Green Land. He could remember that there was no problem gaining access to the Green Land from the Property. 7.2 When he owned the Property, there was one lake to the south of the Property and a boggy area to the north-east of the Property, marked on the Plan as “Spreads”. The area between the Green Land and the area marked “Spreads” was always flooding and Mr Allen dug out the drain marked “B” on the Plan and put in a pipe, which continued to the area marked “Spreads”. The approximate location of the pipe that Mr Allen indicated to me is shown on the plan marked blue and “C”. ……7.3 From time to time during his period of ownership, he did see men in yellow jackets maintaining the fences to the north and west of the Green Land. He believed they must have gained access from the footpath to the north of the Green Land and the verge of the A229 to the west of the Green Land because, to his recollection, there were no gates or other means of access to the Green Land other than via the Property and they never requested access via the Property. There were some fences between the Green Land and the Property, notably to the north of the tennis court and the house. After all this time Mr Allen said he could not recall the exact location of these fences except for the area marked “A” on the plan, near where he had his greenhouse. He knew that that area of fence was not maintained because there was a gap in it behind the greenhouse with a steep drop behind and his gardener used to put garden waste onto the Green Land through that gap. 7.4 During his period of ownership and occupation of the Property, Mr Allen said that to his knowledge the Green Land was never entered or used by the owner for any purpose.”

 

11.  The plan attached to the Statutory Declaration identifies the Green Land as the whole of the Southern Epps Land – that is, the Disputed Land together with the land to the north which was eventually incorporated into the M20 as a result of the road-widening works, and CPO, between 1990 and 1994. The drain marked “B” is in the position consistently shown, prior to 1991, on the various historic OS maps and conveyancing plans, as forming or lying alongside the eastern boundary of the Southern Epps Land. These show a drain lying in a depression or cutting in the ground. In the 1990 OS map the drain has disappeared, there is still a depression shown but it is less well-defined, and where the Spreads were previously marked there is now a pond. The pipe “C” referred to by Mr Allen runs eastwards from the drain to the edge of the Spreads, and does not lie within the Disputed Land at all.

 

 

12.  In paragraph 8 of her Statutory Declaration, Ms Svedberg explained that Mr Allen had told her that he did not want to get involved and was therefore not prepared to make a statutory declaration. The Respondent’s Statement of Case was served on 11^th May 2010. In accordance with the Adjudicator’s Rules, this must identify by name the witnesses intended to be called by the Respondent. Two witnesses were named, neither of whom was Mr Allen. The Adjudicator directed the exchange of witness statements by 16^th June 2010, the timetable being subsequently extended. These directions provide that no witness statement may be served by a witness not named in the Statement of Case, without prior permission from the Adjudicator. On 16^th June 2010 the Respondent returned the listing questionnaire, Form ALRHRG. This requires the party to identify their witnesses – again, the Respondent’s list of witnesses did not include Mr Allen. One of the purposes of this form is to enable a party to identify any periods of non-availability of witnesses, so that a listing fixture may be given accordingly. On 18^th October 2010 further directions were issued, and the parties were asked to supply dates to avoid for the period February-April 2011. On 19^th November 2010 the parties were notified of the hearing date, namely the 10^th and 11^th March 2011, with a Site View listed for the 9^th March.

 

13. On 17^th February 2011 – some three weeks before the hearing – the Respondent’s solicitor applied for a Requirement Notice to be issued in respect of Mr Rodney Allen, requiring his attendance at the hearing. Such a notice was issued, under cover of a letter from the Adjudicator stating that the admissibility of this evidence would be considered and decided at the hearing. At this stage, of course, the Respondent had neither sought nor obtained permission to rely on this evidence from Mr Allen which is required under the Adjudicator’s directions. It appears that the Requirement Notice was not served on Mr Allen until 25^th February 2011. He contacted this Office on Monday 27^th February 2011 to inform the Adjudicator that he was due to leave the country on 28^th February and would not return until the end of April 2011. He stated by letter (supported by a Statement of Truth) that the holiday had been booked several months before he had received the Requirement Notice. He was therefore unable to comply with it, and in the circumstances I discharged the Notice. By letter dated 3^rd March 2011 and faxed on the same day, the Respondent requested the Adjudicator to instruct Mr Allen to return from Spain for the hearing, alternatively for an adjournment of the hearing. This was on the grounds that great prejudice would be caused to the Respondent if this allegedly critical evidence was not available at the hearing. The Applicant’s solicitors, in their letter dated 4^th March 2011, objected to the application, and opposed any adjournment. They cited the prejudice caused to the Applicant by the delay, particularly in view of the fact that at the end of March 2011 the Applicants are changing their legal advisers, and the fact that Mr Allen’s evidence does not appear to be determinative of the issues in any event. In a subsequent letter dated 7^th March 2011, the Respondent suggested (as a fallback position) that the hearing should go ahead, but that Mr Allen’s evidence could be obtained at a later date, after his return to the UK. In the event, I refused the adjournment, but in my judgment I said this: “However, I am not shutting the door on Mr Allen’s evidence at this stage. I would certainly be prepared to allow him to give evidence by video link, if the Respondent is able to set this up in time for the hearing. I may also allow his evidence to be given after the main hearing, but before making a final decision on that point I would wish to hear from the Applicant. I will hear argument on this issue during the hearing.”

 

14. At the hearing, the Respondent renewed the application to admit Mr Allen’s evidence at a later date – the idea being that there would be a short further hearing after Mr Allen returned from Spain. Unsurprisingly, this was opposed by the Applicant. I was told that no efforts had been made to arrange a video link so that he could give his evidence during the course of the hearing, the Respondent’s solicitor very candidly admitting that without compulsion Mr Allen would not co-operate in any way with the Respondent. The issue was left open – I informed the parties that I would consider whether to allow the admission of this further evidence when I came to consider my decision in the case. I also told the parties that, as far as I could see, even if Mr Allen were to give evidence, his evidence in chief could only consist of the statements he made to Mrs Svedberg, reported by her in her Statutory Declaration. Assuming that he verified these statements, the Applicant could cross-examine him if he so wished. I could not see how it would be fair or just for the Respondent to introduce any new evidence of adverse possession – it being accepted that the evidential burden of proof is on it – after the evidence is complete and to all intents and purposes the hearing is at an end.

 

15.  As matters now stand, therefore, and subject to any further hearing, the full extent of the evidence that the Respondent’s predecessor in title was in adverse possession of the Disputed Land for the period 1976 to 1986 consists of the hearsay statement of Mrs Svedberg.

 

 

THE RESPONDENT’S EVIDENCE – MR THOMPSON

 

16.  In addition to this evidence, and his Statutory Declaration of June 1989, Mr Thompson gave oral evidence before me, and was cross-examined on his Statutory Declaration and witness statements. His evidence related to the period from 1986 to the present day. His evidence in chief consisted of his Statutory Declaration, and two witness statements, all of which he verified on oath. He supplemented this evidence orally, in response to some questions from Mr Morshead, and was cross-examined thoroughly by Mr Jefferies. A summary of the main points of his evidence of adverse possession is as follows.

(1)   The Statutory Declaration dated 23^rd June 1997:

                                                              i.      “On [SSL’s] acquisition of [Abbey Court] the whole of the [Disputed Land] and the CPO land up to the original boundaries was fenced against the highways to the north and west but there was no fencing between [Abbey Court] and the [Disputed Land] and the CPO land.” As explained above, the reference to “the CPO land” is a reference to the parcels of land which were entered and acquired by the Secretary of State as part of the road-widening scheme and in effect incorporated into the motorway. These included, of course, land already owned by the Secretary of State and forming part of the Southern Epps Land.

                                                            ii.      At the time of the compulsory purchase notices, “…….. enquiries were made of us as to the ownership of the [Disputed Land] and the CPO land. We advised that we thought that the [Disputed Land] and the CPO land belonged to the Company…..”

                                                          iii.      “Since buying [Abbey Court] initially in 1986 the green land has been used as part of the overall property and trees and surrounds trimmed and tended and on occasions the area has been used for the long term store of equipment and vehicles.”

(2)   Mr Thompson’s First Witness Statement dated 22^nd June 2010

                                                              i.      Mr Thompson says that he assumed that the Disputed Land and the CPO land (which was within the same fencing) formed part of Abbey Court when SSL purchased it in 1986. According to him, on a physical inspection, the Disputed Land and the CPO land, formed part of the Abbey Court land.

                                                            ii.      “To my knowledge, Mr Allen used to deposit and burn rubbish on the Disputed Land. I know this because the remnants of a bonfire were visible on the site and rubbish was strewn around the Disputed Land when [SSL] acquired the Abbey Court Land……[SSL] continued to use the Disputed Land, particularly for burning paperwork such as questionnaires and for depositing rubbish on the site which could not be burned before its removal elsewhere. It also used the land from time to time for long-term storage of equipment.”

                                                          iii.      When carrying out the road-widening works, the Secretary of State obtained access to the Disputed Land (and, necessarily the CPO land), through Abbey Court.

                                                          iv.      “Access to the Disputed Land was always by way of the eastern boundary where there was and is no physical boundary….The Disputed Land has always been overgrown although we did cut the undergrowth back from time to time, depending on the use to which the Disputed Land was and is put, being as a repository principally for the burning of rubbish. The land was allowed to remain in its natural state because of the use to which the Disputed Land was and is put, being as a repository principally for the burning of rubbish. This meant that it was not necessary to keep it in a neat and tidy condition especially as it could not be seen from the house. There is another factor, namely that the Disputed Land was being held in reserve for the office development that was planned for the Abbey Court Land and the Disputed Land”

                                                            v.      “It is fair to state that from time to time as I have varied my use of the Disputed Land I have arranged for it to be tidied up with the undergrowth cut back. I only arranged for this to happen to the extent necessary for the range of purposes for which the land was used. From time to time I parked a van and a car on the Disputed Land and at the time the undergrowth was cut back more neatly to permit easy vehicular access. Also, it is important to keep the area clear around the bonfire……”

                                                          vi.      Between 1997 and 2005 Lake Communications Limited embarked on a planning application relating to Abbey Court. This included, as an “integral” part of the development, provision for car parking on the Disputed Land. The whole planning process has cost Lake Communications Limited some £300,000, and at no time did the Applicant question the plans put forward, including the use of the Disputed Land. I should explain, perhaps, that in the pleadings the Respondent appeared to be alleging some sort of estoppel against the Applicant, or at least a degree of unconscionable behaviour, but (rightly, in my view) this aspect has not been pursued by Mr Morshead.

(3)   Mr Thompson’s Second Witness Statement

                                                              i.      A large part of this statement deals with the letter dated 12^th April 1989 sent to the District Valuer by solicitors then acting for SSL. This letter is relied upon by the Applicant as an acknowledgment of title under the 1980 Act.

                                                            ii.      Mr Thompson also elaborates on the evidence given in his first witness statement, to the effect that he had given permission to come on to the Abbey Court Title to gain access to the Disputed Land. He says this: “I believe that the request for access was made to me, but I cannot remember by whom or when. I expect it would have been made by the contractors working for the Highways Agency….My response to the request would have been “no problem” because that is the way I would have responded to a question like that…….. I recall that the representative of the Applicant asked for permission to come up the Abbey Court drive, accessed from the A229, to bring their plant and equipment onto the land.”

                                                          iii.      Mr Thompson states that it is unconscionable for the Applicant to assert his paper title to the Disputed Land, against the background of not objecting to the planning application which incorporated the Disputed Land.

(4)   Mr Thompson’s oral evidence in chief.

                                                              i.      In 1986 the southern boundary of the Disputed Land appeared very much as it does today.

                                                            ii.      The appearance of the land was also very much as it is today, save for the effects of an archaeological dig that took place on the land. The re were some bushes or small trees on the land.

                                                          iii.      Apart from the areas of bushes and small trees, which were mainly close to the footpath to the north, much of the land was covered in grass.

                                                          iv.      Mr Thompson’s gardener, a Mr Neff, used to go regularly onto the Disputed Land, maybe once each week. He would keep the edges clear and mow the grass.

                                                            v.      “Important for us to keep the Disputed Land clean and tidy. Important for clients.”

                                                          vi.      His three-year old son had a go-kart which he used to drive on the Disputed Land – “like a race track”.

                                                        vii.      Garden equipment was stored on the land, as well as damaged chassis from his racing cars.

 

OTHER EVIDENCE – MAPS AND PHOTOGRAPHS

17.  Apart from the evidence from Mr Thompson and Mr Allen, there is other evidence which may assist in understanding the appearance of the Disputed Land during the period in question. First, there are numerous maps and plans from which some assistance may be derived. It is a universal feature of all the Ordnance Survey maps prior to 1990 that a physical boundary is shown between the Disputed Land and Abbey Court. Various editions of the OS map have been produced, and a boundary is shown running along the top of the bank leading down into the Disputed Land, eventually joining, on the eastern side, a drain or ditch running more or less due north from Abbey Court and terminating just to the south of the motorway (referred to above in relation to Mr Allen’s evidence). On the OS map (page 204 in the bundle) which bears the date 1986, this drain or ditch is shown as lying within a depression or cutting. However, an OS map (page 264a) has been produced which seems to have been surveyed and revised in 1990. On this map, there is no longer any continuous boundary feature between the Disputed Land and Abbey Court, although there is a stub along the south-west of the Disputed Land (north of the tennis court) and a further stub in the south-eastern corner. As it happens, the aerial photograph produced for July 1990 (referred to below) seems to show a hedge running along the northern edge of the tennis court, which would be consistent with the mapping. Furthermore, the ditch or drain is no longer shown, although the depression in the ground in which it lay still appears to exist, albeit being less well-defined. Secondly, the Applicant has produced a number of aerial photographs, of varying clarity and usefulness. The first photograph relied upon was taken on 12^th July 1990 – before the road-widening works were carried out. The photograph is of good quality and the features on the ground are clear. Abbey Court can be seen, and the Disputed Land and CPO land (i.e the Southern Epps Land) are thickly wooded and entirely covered in plant growth. From the length of the shadows it is possible to see that the height of the trees varies from area to area. Although it appears that the trees on the Southern Epps Land Land are not as tall as the trees further east, nevertheless the growth is dense. This is also consistent with the OS map for 1990, which identifies the Disputed Land as woodland. When this photograph was put to Mr Thompson in cross-examination, he was asked how he explained his evidence that the appearance of the land today was largely the same as it was in 1986. His response was that the photograph was taken in the summer, whereas the site view took place in early March. Even making some allowances for the seasons, it seems clear to me that the tree cover was substantially greater when these photographs were taken than is currently the case.

 

ADVERSE POSSESSION – THE LAW

18.  The test for establishing adverse possession within the meaning of the 1980 Act is not controversial. Both parties referred me to the leading case of J.A Pye (Oxford) Ltd v Graham and another [2003] 1 AC 414, and in particular to paragraphs 41 onwards in the speech of Lord Browne-Wilkinson, in which he expressly approved the following passage from the decision of Slade J in Powell v McFarlane (1977) 38 P & CR 452 pp 470-471:. "(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. 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.". In addition to factual possession, a squatter must also have a sufficient intention to possess, and this requirement is also discussed and explained in Pye v Graham. Although I was taken to a number of other authorities, essentially these are all illustrations of the application of the main principles to the particular facts of those cases. The nature of the possession sufficient to constitute adverse possession will of course vary according to the nature of the land in question. However, some form of exclusive factual possession, coupled with a sufficient intention to possess, is the basic requirement.

 

FINDINGS OF FACT – 1976 TO 1986

19.  In the light of these underlying principles, these are my findings of fact. There is no sufficient evidence either of exclusive factual possession of the Disputed Land, or of any intention to possess it, between 1976 and 1986. Even if I were to accept, without qualification, the evidence of Mr Allen, I cannot see that this is remotely adequate to establish adverse possession. His recollection was that garden waste was tipped on to the land through a gap in the fence, which then existed at least at the top of the bank, between Abbey Court and the Disputed Land. He did say that his gardener burned waste as well, although this seems to have been as a result of a hint from Mrs Svedberg. Also, he recalled digging out the drain that originally formed or lay along the eastern boundary of the Southern Epps Land (marked B on the plan to Mrs Svedberg’s Statutory Declaration) in order to mitigate the flooding of his adjoining land. It is not clear from the maps and plans whether the drain lies within the Southern Epps Land. Indeed, it appears to lie outside the title. The plan attached to the 1947 Conveyance of the Epps Land shows a fence on the western side of the drain with T-marks, indicating that there was an obligation on the owner of the Epps Land to fence against the drain. I do not therefore regard Mr Allen’s activities with regasrd to the drain as constituting factual possession or control of the Disputed Land in any sense. Mr Allen’s evidence with regard to the laying of the pipe takes the matter no further, since the pipe was laid across his own land. He also recalled that there were fences between Abbey Court and the Disputed Land, and that from time to time “men in yellow jackets” were seen maintaining the fences to the north and west of the land. Between 1976 and 1986, of course, the CPO land and the Disputed Land formed one single parcel of land, the Southern Epps Land, and the entry onto the land by the “men in yellow jackets” – presumably contractors of the Highways Agency – represents a sharing of possession at the very least. If Mr Allen had been called as a witness, and his evidence in the witness box had amounted to this, it would have fallen far short of the evidence required to establish exclusive factual possession, leave alone intention to possess, for the relevant period.

 

SHOULD MR ALLEN BE REQUIRED TO GIVE EVIDENCE?

20.  Of course, the Respondent has invited me to resume the hearing at a later date, and to require Mr Allen to attend to give evidence under a Requirement Notice, which is opposed by the Applicant. I have given this application serious consideration. On balance, however, I have concluded that I should not accede to the appplication. There are a number of reasons for this. As I have explained earlier in this Decision, the Respondent has known, since before these proceedings commenced, that it required Mr Allen’s evidence in order to establish a 30-year period of adverse possession. It was also aware that he would not co-operate in making a Statutory Declaration or witness statement. Nevertheless, it was not until some three weeks before the hearing that the first indication was given that the Respondent wished to rely on his oral evidence. By that time, it was too late to secure his attendance at the hearing. According to Mr Allen, he will not return to the UK until the end of April, and any further hearing would have to be listed on a date convenient to both Counsel, and their representatives, and to the tribunal. This is bound to cause further delay. Furthermore, all the evidence has been taken, and all the submissions made, and in my view it would be prejudicial to the Applicant to allow new evidence at this stage from Mr Allen (if it exists which seems unlikely). The Applicant was entitled to assume that it had to meet the factual case as put by the Respondent, and pleaded by Leading Counsel, including the limited hearsay evidence of Mr Allen. If Mr Allen’s evidence had been more extensive, the Applicant may well have sought to obtain other evidence in rebuttal. For that reason, it would be unfair to allow the Respondent to obtain any additional evidence (if any) from Mr Allen. Essentially, the only purpose of calling Mr Allen at this stage would be to allow him to verify Mrs Svedberg’s recollection of the conversations with him, and to tender him for cross-examination. This would enable the Respondent to submit that his evidence was direct, and thus did not suffer from the limitations of hearsay evidence. In the event, I have been prepared to accept his evidence (as reported by Mrs Svedberg) at face value. However, it is in itself quite insufficient, for the reasons I have given. My refusal to admit further evidence from Mr Allen is not therefore in any way intended to punish the Respondent – it simply reflects the reality of the situation that has arisen.

 

MR THOMPSON AS A WITNESS

21.  As I have explained above, whichever 30-year period is required, it will include some part of the period between 1976 and 1986. The deficiencies in Mr Allen’s evidence, therefore, are fatal to the Respondent’s ability to show that the Applicant’s title has become barred. However, should the matter go further, and this view is found to be wrong, I ought to make findings with regard to the evidence of adverse possession during the period from SSL’s acquisition of the land in 1986 up to the present day. The evidence in support of the Respondent’s claim is given by Mr Thompson alone. Before I deal with the specifics of his evidence, I will make a general observation about him as a witness. I regret to say that I did not find him to be a very convincing witness. I think that, for no doubt very understandable reasons, he has greatly exaggerated the extent to which he and his predecessors used the Disputed Land, and he did not accurately describe its appearance in 1986. I base this on his demeanour generally when giving his evidence and being cross-examined, and on numerous instances of inconsistency in his evidence. I shall give two specific examples where I have doubts about his reliability as a witness. First, the issue of the fences. Mr Thompson’s evidence was that the appearance of the land when he first saw it in 1986 was very much as it was today. Specifically, in chief he said that there were no fences anywhere along the boundary between the Disputed Land and Abbey Court. In cross-examination, he accepted that there was a tiny vestige of fencing – an angle iron fence post – on the boundary, but nothing else. He was asked about the pile of rotting fence posts and wire, abandoned along the boundary to the north of Abbey Court. The posts and wire had been rolled up together. He said that he did not know where this had come from, and denied that he had removed any fencing himself. On the other hand, Mr Allen’s evidence was that there were fences along various boundaries between Abbey Court and the Disputed Land. He specifically recalled a fence to the north of his tennis court and greenhouse – at the top of the bank to the north of Abbey Court – albeit that this fence was poorly maintained, since it had a gap in it where his gardener tipped rubbish. A gap in the fence is very different from the absence of any fence. This is entirely consistent with the evidence of the various editions of the Ordnance Survey maps that have been produced. It is well known that lines drawn on OS maps represent physical features Although Mr Thompson’s reply to the apparent boundary features was that maps can be inaccurate, it seems to me to be improbable that the OS maps – which were based on surveys – could consistently have plotted a feature where none existed. This is perhaps especially so since the mapping changed between 1986 and 1991, when the fence largely disappeared to the north of Abbey Court. It seems to me very likely that the fence was in existence in 1986, and was either removed by Mr Thompson, or at his behest, or simply fell down and was tidied away.

 

22.  Secondly, I contrast the evidence as to the appearance of the land he gave under questioning by Mr Morshead, with that contained in his earlier witness statements. In particular, there is a direct and manifest inconsistency with regard to the appearance of the land. In his first witness statement, he said this: “The land was allowed to remain in its natural state because of the use to which the Disputed Land was and is put, being a repository principally for the burning of rubbish. This meant that it was not necessary to keep it in a neat and tidy condition especially as it could not be seen from the house.” In answering some supplementary questions put to him by Mr Morshead, he mentioned or the first time that his gardener, Mr Neff, used to trim the edges and mow the grass, and went into the land every week. He added that “It was important for us to keep the Disputed Land clean and tidy – it was important because clients could see it.” There are other examples of this: he was able to recollect that his son used the land as a go-kart track, for instance, yet there is no mention of this in any of the written statements. By the same token, he was unable to give any explanation for the following passage in his Statutory Declaration, relating to the service of the CPO: “…….. enquiries were made of us as to the ownership of the [Disputed Land] and the CPO land. We advised that we thought that the [Disputed Land] and the CPO land belonged to the Company…..” In cross-examination he was taken to the contemporaneous documentation, from which it was absolutely clear that SSL did not contend that the Disputed Land was in its ownership, and that SSL’s claim for compensation did not relate to it. He was unable to produce any documents to support this evidence in his Statutory Declaration, or to give any explanation of it. In any event, even a superficial perusal of the title documents relating to the Abbey Court Title would reveal that the Disputed Land and the CPO Land was outside SSL’s title. Despite this, he insisted that he had always believed that this land was owned by SSL. This evidence is entirely inconsistent with the actions of SSL at the time. Mr Thompson reiterated that “on the ground” the Disputed Land formed a natural part of the Abbey Court Title and was indistinguishable from it. Even this is inaccurate, since the steep bank to the north of Abbey Court itself creates a natural barrier. However, it is in my view improbable that an intelligent businessman such as Mr Thompson would not at some point have satisfied himself as to the legal boundaries of SSL’s land. When SSL first acquired the Abbey Court Title, the Southern Epps Land was a substantial area to the north which was quite clearly excluded from the registered title.

 

23.  Mr Morshead submitted that it would be wrong to draw any adverse conclusions from the discrepancy between the previous written statements, and his oral evidence. He submitted that witnesses frequently will only recall important matters when under the pressure of giving live evidence, and that this is inevitable in litigation. Undoubtedly, it is true that there are times when a witness will quite genuinely recall a crucial fact in the witness box. However, I do not believe that this is such a case. The issues in this case were quite clearly identified at a very early stage. The Respondent’s Statement of Case was settled by Leading Counsel, and his first witness statement was expressed to be made for the purpose of amplifying the relevant paragraphs of the Statement of Case. Given that Mr Thompson expressly accepted that his memory was poor, it seems quite incredible to me that he should now suddenly recall (for example) that the land was kept neat and tidy, when he said exactly the opposite in a statement made some nine months earlier. This is such an important and material piece of evidence that it is inconceivable that he would not have recalled it when asked to make his statement – or when he was asked for his instructions for the Statement of Case. Another example. Under cross-examination, when pressed by Mr Jefferies, he repeatedly stated that he had no motive to lie about the use of the land, which as far as he was concerned was of no value and quite unimportant to him. This may be contrasted with the evidence of his second witness statement, in which he said that the Disputed Land was an integral part of a proposed development of the site, in relation to which the planning process alone had cost £300,000. It is also inconsistent with the complaint – not pursued before me – that the Applicant had behaved unconscionably with regard to the Disputed Land. Clearly, the Disputed Land does have a substantial value to the Respondent, and to Mr Thompson personally. He does indeed have a motive to exaggerate his evidence of user. It is also noteworthy that no other witnesses were called to give evidence of the alleged adverse possession – not the gardener Mr Neff, nor any of Mr Thompson’s employees, who presumably would have carried put the alleged burning of papers on site. The result is that I am not able to place any reliance on Mr Thompson’s evidence, at least where it is contradicted by Mr Allen’s evidence, or where it is inconsistent with the maps, photographs and other relevant documentation.

 

FINDINGS OF FACT – 1986 ONWARDS

24.  My findings are as follows. As previously stated, during the period between 1976 and the arrival of SSL in 1986, the minimal activities carried out by Mr Allen on the Disputed Land did not amount to exclusive factual possession, and therefore there was no adverse possession during that time. It is possible that SSL began to make more use of the land from 1986 onwards, and I find that the fences that previously existed were either removed or had largely collapsed by 1990. Accordingly, from approximately 1990 the Southern Epps Land (including the Disputed Land) was not separated from the Abbey Court Title by anything other than the barest of vestigial fences. Between 1990 and 1994 a large section of the Southern Epps Land – the CPO land – was used and occupied by the Applicant for the purposes of the road widening scheme. At this time, the Disputed Land and the CPO land formed one combined parcel, each indistinguishable from the other, and in effect fenced within the Abbey Court Title. It follows in my judgment that SSL was not in exclusive factual possession of the Disputed Land during this period. I accept that Mr Thompson gave the highways contractor permission to access the Southern Epps Land with vehicles by using the Abbey Court driveway – but this must be distinguished from any permission to use the land itself. Mr Thompson himself accepted that there was a one-off permission given for the purposes of access, but not for actual entry onto the Southern Epps Land. After 1994, it is common ground that the Applicant erected a fence to the south of the footpath and to the east of the A229. The effect was once again to enclose the Disputed Land within the Abbey Court Title boundaries. I accept that SSL, and subsequently Mr Thompson, did on occasions burn rubbish on the land, and dump car parts and the like. I do not accept that the land was used for long-term storage of vehicles and equipment. It seems to me to be inherently improbable that these items would be stored or parked out of sight of Abbey Court, close to the fence separating the land from the A229, being the location identified by Mr Thompson during the course of his evidence. Given that the grounds of Abbey Court were extensive, and there was a large garage and other outbuildings close by, it is improbable that vehicles and equipment would be driven through the Disputed Land – which has no road or path running through it and is heavily wooded – and parked in such a vulnerable area. It may also be noted that the location Mr Thompson identified – on the July 1990 photograph – placed the parking spot within the land subsequently incorporated into the motorway widening scheme i.e it was not within the Disputed Land at all. Given the unreliability of Mr Thompson’s evidence which I have described, I am afraid that I cannot accept this. Nor do I accept that his gardener attended the land once a week and regularly mowed the grass and trimmed the trees. Whether the very limited activities carried on by the Respondent after 1994 amount to adverse possession is doubtful. Even given the nature of the Disputed Land, the activities are minimal. In my judgment, the truth is probably represented by the evidence of Mr Thompson’s first witness statement, when he said that: “The land was allowed to remain in its natural state because of the use to which the Disputed Land was and is put, being as a repository principally for the burning of rubbish. This meant that it was not necessary to keep it in a neat and tidy condition especially as it could not be seen from the house. There is another factor, namely that the Disputed Land was being held in reserve for the office development that was planned for the Abbey Court Land and the Disputed Land”. Whilst a paper title owner might argue (probably unsuccessfully, in the light of the authorities) that land was being kept fallow pending some defined future use, so that a squatter’s possession is not “adverse”, such an argument is potentially fatal if adopted by the squatter. He has to demonstrate exclusive factual possession continuously for the entire limitation period. In my judgment, the occasional entry onto the land to burn rubbish – but otherwise leaving it more or less untouched - is insufficient, even having regard to the nature of the land. Should this be a relevant consideration, however, it is clear to me that in 1997, when the title was first registered, the Respondent and its predecessors in title had not in fact enjoyed even 12 years’ adverse possession of the Disputed Land.

 

25.  In summary, therefore, I have concluded on the facts that the Respondent and its predecessor in title were never in adverse possession of the Disputed Land. It is common ground between the parties that the Crown’s title can only be barred by a continuous period of 30 years’ adverse possession, expiring, at the latest (according to the Respondent), in March or April 2011. In order to bar the Applicant’s title, therefore, the adverse possession would have to commence no later than 1981. Having regard to these findings of fact, therefore, and even on the basis contended for by the Respondent, it follows that the Applicant’s pre-registration title has not been barred, and the Disputed Land should be removed from the Respondent’s title and included within the Applicant’s Title number K936820.

 

OTHER ISSUES OF LAW

26.  Notwithstanding these findings, and in case the matter should go further, I ought to deal with some of the legal arguments addressed to me, particularly in relation to two discrete issues. First, whether the letter from Bartlett & Gregory dated 12^th April 1989 amounts to an acknowledgment of the Applicant’s title within the meaning of section 29 of the 1980 Act. Secondly, by what date must the Respondent have achieved 30 years’ adverse possession? This is the issue identified in paragraph 8 of this Decision. Essentially, there are three possible dates: (a) 13^th October 2003, (b) 11^th May 2009, and (c) the date of this Decision, or perhaps the date on which the substantive decision is implemented at the Land Registry. The first date is the commencement date of the 2002 Act. The second date is the date of the Applicant’s current application. The third date is self-explanatory. The significance of these issues is as follows. If the Applicant’s title was acknowledged in 1989, then even if the Respondent had been able to establish that adverse possession commenced in 1976, the Applicant’s title could never have become barred. The effect of an acknowledgment is to re-start the adverse possession clock and 30 years’ adverse possession could never be enjoyed. Equally, even if the Respondent is able to prove that adverse possession of the Disputed Land commenced in 1976, if as the Applicant contends the 1980 Act ceased to apply to the Disputed Land in October 2003, clearly the necessary 30-year period will not have elapsed. Whether (b) or (c) is the appropriate cut-off date does not in fact make any appreciable difference to the Respondent’s position. Both dates require the commencement of adverse possession prior to 1986. Since it is only Mr Allen’s evidence which covers the period up to 1986, if this claim fails due to the defects in his evidence, the failure will affect both (b) and (c) in any event.

 

27.  I shall therefore consider the issue at (a) – whether time stopped running on 13^th October 2003 – in some detail. The resolution of issue (a) may dispose of the argument. If the 1980 Act ceases to apply on 13^th October 2003, clearly neither subsequent date can be correct. If that view is wrong, however, and time continues to run after 13^th October 2003, which of (b) or (c) is correct? It is not strictly necessary to consider issues (b) and (c) for the reasons given. Nevertheless, I ought to say something about the opposing positions. In my view, the Respondent’s position (c) – that only the issue of proceedings for possession will stop the clock under the 1980 Act – is not sustainable. Where, as here, the Applicant has applied to remove the Disputed Land from one title, and become registered as proprietor, the application, if successful, will date back to the date of the application. For the purposes of section 11(7) he need only prove that he has a superior title as at the date of the application. I cannot see that “adverse possession” subsequent to that date may be taken into account at all. I also note in passing that the authors of Jourdan and Radley-Gardner’s Adverse Possession (2^nd ed.) suggest (see paragraph 1-24) that the date on which the dispute is referred to the Adjudicator by the Chief Land Registrar should be treated as the commencement of proceedings, thus stopping the limitation clock. This area of uncertainty might be seen as a demonstration that the law relating to the limitation of actions does not always mesh comfortably with the law of land registration.

 

THE ALLEGED ACKNOWLEDGMENT OF TITLE

28.  By section 29(2) of the 1980 Act it is provided as follows: “if the person in possession of the land…….in question acknowledges the title of the person to whom the right of action has accrued….(a) the right shall be treated as having accrued on and not before the date of the acknowledgment;”. The letter relied upon as an acknowledgment of title is dated 12^th April 1989, and was sent by a firm of solicitors called Bartlett & Gregory to “Inland Revenue Valuation Officer District Valuer”. It reads as follows: “We act for the owners of Abbey Court, Boarley Lane, being the property edged red on the enclosed plan. They are interested in the land locked piece of land edged green on the plan. It occurs to us that it may well have been part of a larger piece of land acquired in the days of the South East Road Construction Unit when the motorway was built and presently vested, like other odd bits of ground, in the Ministry. We wonder whether you can enlighten us about this from your records as, if it was acquired by a public authority, then our clients would be interested in making an offer to buy it or at any rate so much of it as is not required for future road widening.” The land identified on the plan was the Southern Epps Land, including, of course, the Disputed Land. On 5^th July 1989 the District Valuer at Tunbridge Wells forwarded to “The Director Depts Environment and Transport” at Dorking, Surrey “copy correspondence addressed to the former Maidstone Valuation Officer but now passed to you for attention.” This resulted in a letter to Bartlett & Gregory from a Miss Ede, of the South East Regional Office of the Departments of the Environment and Transport, in which she referred to the letter of 12^th April 1989 and stated that “we are making investigations with regards to the above land, unfortunately these will take some time to complete.” Having ascertained from the Land Registry that the Southern Epps Land was not registered, Miss Ede wrote to Bartlett & Gregory informing them of this fact. For whatever reason, now unknown, Miss Ede did not appear to be aware that the land was owned by the Secretary of State for Transport, albeit that the title was unregistered.

 

29.  By virtue of section 30 of the 1980 Act, any acknowledgment must be in writing and signed by the person making it, or by his agent. I do not think there can be any doubt but that Bartlett & Gregory were acting on behalf of SSL which, at this time, claimed to be in possession of the Disputed Land. Furthermore, it “shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.” The argument before me has centred on two sub-issues. First, can the Bartlett & Gregory letter, on its true construction, be fairly said to constitute an acknowledgment of the Applicant’s title? Secondly, and if it can, was it sent to an agent of the Applicant within the meaning of section 30? Various authorities have been cited to me on the first issue, in particular Edgington v Clark [1964] 1 QB 367 (C.A). It is common ground that whether or not a particular writing amounts to an acknowledgment must depend on the true construction of the document in all the surrounding circumstances. In general terms, an offer to purchase land from the paper title owner, even one made subject to contract, is a sufficient recognition that the paper title owner has a superior title – that is the effect of Edgington v Clark itself. Where a squatter puts the paper owner’s title to proof, but offers to buy the land provided that proof of title is forthcoming, it has been held that this constitutes an acknowledgment of title – see Kleanthous v London Borough of Barnet REF/2005/1168 decided on (8^th Dec.2006), a decision of Ms McAllister, Deputy Adjudicator, reported on the Adjudicator’s website. The Barrett & Gregory letter does not, in terms, acknowledge the Applicant’s title. It seeks information as to the paper title owner and registers an expression of interest in buying the land: “We wonder whether you can enlighten us about this from your records as, if it was acquired by a public authority, then our clients would be interested in making an offer to buy it or at any rate so much of it as is not required for future road widening.” The underlying rationale of section 29 of the 1980 Act is this: “For a document to constitute an acknowledgment of title all that is required is that, as between himself and the owner of the paper title, the person in possession acknowledges that the paper title owner has better title to the land” – see Allen v Matthews (CA) [2007] 2 P & CR 441 per Lawrence Collins LJ at para 75. Clearly, the letter necessarily suggests that Bartlett & Gregory’s client – at that time SSL – does not have a title to the land. It also indicates that SSL would be prepared to buy the land from the legal estate owner. The only uncertainty is whether the Ministry of Transport actually owns the land – the supposition being that it does. The letter can be fairly construed as meaning that, on the assumption that the Ministry does own the land, SSL would offer to buy it. As it happens, the assumption was correct, and the land was owned by the Minister. This is not in principle any different from an offer to purchase land made conditional upon proof of title – the situation in the Kleanthous case referred to above. Although this is very much a question of impression, in my judgment the Bartlett & Gregory letter does indeed amount to an acknowledgment made on behalf of SSL, allegedly in possession of the Disputed Land at this time, that the Minister (or Secretary of State) has a better title.

 

30.  However, it is required by section 29 of the 1980 Act that the acknowledgment must be made “to the person, or to an agent of the person, whose title or claim is being acknowledged……”. In this case it is not, on any footing, made direct to the paper title owner. The first question is whether it is made to the paper title owner’s agent. In other words, is the District Valuer the agent of the Secretary of State for Transport (the successor to the Minister of Transport) for the purpose of receiving the acknowledgment? It may be noted that the Applicant did not adduce any direct evidence as to the District Valuer’s position in 1989. Ms Collins did seek to provide some general evidence on the subject, but readily accepted that she had no particular knowledge of the matter. Mr Jefferies relied on the following simple propositions. First, he accepts that the Secretary of State for Transport was a corporation sole. However, he is a Minister of the Crown, and therefore held the Southern Epps Land on behalf of the Crown. Mr Jefferies referred me to the decision in Town Investments v Dept of the Environment [1978] AC 359 (H.L) and in particular the passages at 381D-E and 383A (Lord Diplock) and 399H-400D and 400G-H (Lord Simon) in support of this contention. Secondly, the District Valuer is an officer of the Inland Revenue, which is another emanation of the Crown. He has referred me to a number of statutes – some of which post-date 1989, it must be said – which make this clear. However, there can be no doubt that the District Valuer has always been an office or representative of the Inland Revenue. Accordingly, the argument runs, an acknowledgment of the Secretary of State’s title, made to another officer of the Crown, namely the District Valuer, satisfies that requirements of section 29 and 30 of the 1980 Act.

 

31.  Against this, Mr Morshead submits that it would be wrong to treat the Secretary of State as “the Crown” for these purposes. He held the Epps Land in his capacity as a corporation sole pursuant to the Secretary of State for Transport Order 1976/1775 article 4, as successor to the Minister of Transport. He did not hold the land as a nominee of the Crown at common law. He might have added, too, that the acknowledgment of title must be made to “the person to whom the right of action has accrued”. Any proceedings for possession would have to be brought by the Secretary of State, and it is his title that must be acknowledged. Secondly, Mr Morshead submits that there is no evidence that the District Valuer was the servant or agent of the Crown in 1989. Thirdly, and even of he was, there is no evidence that he was authorised to receive the acknowledgment on behalf of the Secretary of State. In this latter regard, he referred me to the case of AG for Ceylon v Silva [1954] AC 461, where at 479 the Privy Council held that: “no public officer, unless he possesses some special power, can hold out on behalf of the Crown that he or some other public officer has the right to enter into a contract in respect of the property of the Crown when in fact no such right exists.” Accordingly, even if the letter of 12^th April 1989 constitutes a valid acknowledgment (which he denies), it was not given to the duly authorised agent of the Applicant, and therefore does not comply with section 30 of the 1980 Act.

 

32. I confess that I have not found this an easy question to resolve. These are deep waters for a property lawyer, involving as they do fundamental constitutional issues. To my mind, the Town Investments case clearly indicates that the Secretary of State is to be treated as “the Crown”, in the appropriate context, for the purposes of holding real property. Att-Gen for Ceylon v Silva is dealing with a different point, namely whether any servant of the Crown can bind it contractually – i.e expose the Crown to potentially onerous obligations – even without authority to do so. That is not the case here. I do not see that it would be necessary for an express authority to be given to receive an acknowledgment. On the other hand, there is no evidence of any form of agency as between the District Valuer and the Secretary of State in relation to the Disputed Land. The District Valuer and the Secretary of State may both ultimately owe a duty to, and be representatives of, the Crown, but to adopt Mr Jefferies’s analysis would mean that an acknowledgment made to a member of the Armed Forces would be sufficient, merely because he or she was a representative of the Crown. That cannot be right. If the matter rested there, I would find that the letter of 12^th April 1989 was not sent to an agent of the Applicant. However, I do not think that the scope of the District Valuer’s agency is the critical factor. In point of fact the letter of 12^th April 1989 – which I have held is an acknowledgment of title – was actually sent to and seen by the paper title owner, in the person of Miss Ede, an officer of the Department of Transport. It (or a copy) was forwarded by the District Valuer. It seems to me that the recent Court of Appeal decision in Rehman v Benfield [2006] EWCA Civ 1392 resolves the issue in favour of the Applicant. In that case – the facts of which are, admittedly, somewhat unusual – a squatter executed a purported counterpart lease to herself from the paper title owner. The paper title owner (the purported lessor) knew nothing about it, or indeed about her possession of the property, and did not himself execute the lease, although an associate of the squatter impersonated him and forged his signature. The lease and counterpart both contained a recital acknowledging the purported lessor’s title. The counterpart, signed by the squatter, was sent to a firm of solicitors (Anna Arthur & Co), which believed it was acting for the lessor but was in fact instructed by the squatter’s associate. The lease and counterpart were, of course, nullities. Some time after the execution of these documents, the paper title owner became aware of the squatter’s possession, and of the purported lease. Solicitors instructed by him contacted Anna Arthur & Co, and asked for a copy of the counterpart lease. This was provided to them. The Court of Appeal held that the recital in the counterpart lease was an acknowledgment of title. Since a copy of the counterpart had been sent to the paper title owner’s agents, there was compliance with section 30 of the 1980 Act and the acknowledgment was effective. Mummery LJ (with whom the other members of a strong court agreed) relied on the following passage in a decision of Slade J in Re Compania de Electricidad [1980] Ch 146, in relation to the statutory predecessor of sections 29 and 30 of the 1980 Act. “In my judgment, though no authority has been cited to me which either confirms or rejects such proposition, a written acknowledgement cannot be said to be “made to” a creditor or his agent, within the meaning of section 24(2) unless either (a) it is delivered to the creditor or his agent by or with the authority of the debtor or (b) it is expressly or implicitly addressed to and is actually received by the creditor or his agent.” (at 193F). Mummery LJ analysed this passage as follows: “In my judgment, in case (a) it would not matter that the acknowledgement was not, according to its terms, expressly or implicitly addressed to the recipient. In case (b) it would not matter that the acknowledgement reached the hands of the creditor otherwise than by or with the authority of the debtor. In either case, however, it would be necessary that the creditor should actually receive the acknowledgment before he could rely on it.”

 

33. Applying the rationale of these cases to the letter of 12^th April 1989, I conclude that there was transmission of the acknowledgment letter to the paper title owner, the Secretary of State (in the person of his employee), when the District Valuer sent a copy of it on 5^th July 1989. Given the terms of the Bartlett & Gregory letter, it seems to me that the District Valuer must have been expressly or impliedly authorised to pass the letter on to the paper title owner. The purpose of the letter was to find out who owned the land, and then to make an offer to purchase it. It must have been within Bartlett & Gregory’s contemplation that the District Valuer would simply send the letter on to the paper title owner. This analysis falls within Slade J’s category (a) and is analogous to the situation in Rehman v Benfield. I should add that neither of these two authorities was cited by Counsel. Under normal circumstances, I would have given them an opportunity of making submissions on these cases before reaching a final decision. However, since I am finding against the Respondent on the facts in any event, the acknowledgment issue is not central to my decision, and I see little point in prolonging the proceedings simply to deal with this issue.

 

34.  I therefore conclude that the effect of the letter dated 12^th April 1989 was to acknowledge the Applicant’s title to the Disputed Land (as part of the Southern Epps Land), with the result that time for limitation purposes began to run afresh. On this basis, the maximum period of adverse possession available to the Respondent is 22 years, on Mr Morshead’s most optimistic analysis.

 

CAN TIME RUN AGANST THE APPLICANT AFTER 13th OCTOBER 2003?

35.  The relevant provisions of the 2002 Act are as follows:

Section 9 - Titles to freehold estates

9(1) In the case of an application for registration under this Chapter of a freehold estate, the classes of title with which the applicant may be registered as proprietor are: -

(a) absolute title,

(b) qualified title, and

(c) possessory title……….

9(5) A person may be registered with possessory title if the registrar is of the opinion –

(a) that the person is in actual possession of the land, or in receipt of the rents and profits of the land, by virtue of the estate, and

(b) that there is no other class of title with which he may be registered.

Section 11 - Freehold estates

11(1) This section is concerned with the registration of a person under this Chapter as the proprietor of a freehold estate.

11(2) Registration with absolute title has the effect described in subsections (3) to (5).

11(3) The estate is vested in the proprietor together with all interests subsisting for the benefit of the estate.

11(7) Registration with possessory title has the same effect as registration with absolute title, except that it does not affect the enforcement of any estate, right or interest adverse to, or in derogation of, the proprietors’ title subsisting at the time of registration or then capable of arising.”

Section 62 - Power to upgrade title

62(1) Where the title to a freehold estate is entered in the register as possessory or qualified, the registrar may enter it as absolute if he is satisfied as to the title to the estate.

62(4) Where the title to a freehold estate in land has been entered in the register as possessory for at least twelve years, the registrar may enter it as absolute if he is satisfied that the proprietor is in possession of the land.”

Section 96 - Disapplication of periods of limitation

96(1) No period of limitation under section 15 of the Limitation Act 1980 (c.58) (time limits in relation to recovery of land) shall run against any person, other than a chargee, in relation to an estate in land or rentcharge the title to which is registered.

96(2) No period of limitation under section 16 of that Act (time limits in relation to redemption of land) shall run against any person in relation to such an estate in land or rentcharge.

96(3) Accordingly, section 17 of that Act (extinction of title on expiry of time limit) does not operate to extinguish the title of any person were, by virtue of this section, a period of limitation does not run against him.”

Schedule 4 -Alteration of the Register

5 The registrar may alter the register for the purpose of-

(a) correcting a mistake

(b) bringing the register up to date,

(c) giving effect to any estate, right or interest excepted from the effect of registration…”

 

36.  I considered this issue on a previous occasion, in the case of Moore v Buxton & Buxton REF/2007/1216, decided in this jurisdiction on 22^nd April 2009 and reported on the Adjudicator’s website. The material passages in the Decision are as follows:

“Does the Limitation Act 1980 apply once a possessory title is registered?

24. My reading of the above provisions is as follows. Where a person is registered as the proprietor of a freehold estate with title absolute, the freehold estate becomes vested in that person. A possessory title is one of the three classes of freehold title, and it has exactly the same effect as registration with an absolute title, save that it is subject to adverse rights or estates that subsisted at the date of registration. However, the freehold estate is still vested in the proprietor, as with an absolute title. The title is, however, defeasible. It follows that the legal estate in the land is vested in the possessory title proprietor by virtue of the “statutory magic”, as it has been called. Where land is unregistered prior to the first registration with possessory title, the “paper” title owner ceases to be the legal estate owner at the moment of registration. There cannot be two legal estates in the land subsisting side by side. However, assuming that the “paper” title has not been extinguished by virtue of twelve years’ adverse possession prior to registration, his interest in the land is preserved. This is the effect of Section 11(7). This section, coupled with Schedule 4 paragraph 5(c), permits the person with the paper title (which is no longer a legal estate in the land) to apply to alter the register to reverse the registration of the squatter. Once the alteration is made, the title is closed and the unregistered proprietor becomes once again the legal estate owner of the land. The critical point here is that the interest of the paper title owner is frozen as at the date of the first registration – hence the phrase “estate, right or interest ………subsisting at the time of registration”.

 

25. How do the provisions as regards limitation apply in this situation? Section 96 of the 2002 Act provides that: “No period of limitation under section 15 of the Limitation Act 1980 (c.58) ………….. shall run against any person ……… in relation to an estate in land …….. the title to which is registered.” What does this mean? On the face of it, it means that once land is registered, Section 15 simply does not apply. Schedule 6 of the 2002 Act provides a new and comprehensive code for the application of adverse possession to registered land, in substitution for the code contained in the Limitation Act 1980. The present situation is as follows. The freehold estate in the Disputed Land is registered in the name of the Respondents, and they are by virtue of the statutory magic the legal estate owners. That being so, the Applicant – as the purchaser of the unregistered title – cannot himself be the legal estate owner. The “estate in land” referred to in Section 96 must, in my view, mean the freehold legal estate. The Respondents argue that this provision merely disapplies the Limitation Act to the registered proprietors, so that no-one can rely on the old limitation regime to bar the title of the registered proprietors. However, that construction does not, I think, give full effect to the provision. First, section 96 uses the expression “any person” – it is not expressly limited to the registered proprietor. Secondly, it does not give full effect to the phrase “an estate in land …. the title to which is registered…”. The Respondents’ case rests on the argument that during the period that the title is registered, time continues to run against the former paper title owner of the unregistered estate. That must be on the basis that this person has some sort of a freehold estate in the land which entitles him to sue for possession. However, that interest, if any, is also “an estate in land …. the title to which is registered…”. The estate is the freehold legal estate – and manifestly the Disputed Land is registered. The fact that the class of title is possessory makes no difference, for the reasons I have explained. I cannot therefore construe Section 96 as the Respondents do.

 

26. Furthermore, there is another reason why the Respondents’ argument cannot be correct. Section 15 of the Limitation Act 1980 imposes a time limit on actions for the recovery of possession of land: the extinguishment of title under Section 17 is merely the incidental effect of long delay in asserting rights. However, the time limit can only apply if there is a cause of action for possession. In my judgment, the Applicant is not entitled to possession unless and until he can alter the register to remove the Respondents. For so long as they are the registered proprietors, they are the legal estate owners, and on that basis they are entitled to possession of the Disputed Land. In order to be in a position to obtain possession against the Respondents, the Applicant must himself become the legal estate owner. This can only be achieved by closing the possessory title pursuant to Paragraph 5(c) of Schedule 4 to the 2002 Act, and then suing either as the unregistered freehold owner or (if he has himself become registered) as the proprietor of the registered estate. In the present case, the Applicant has indeed applied to be registered as the proprietor, based on the Conveyance from the previous owners, but that application is of course on hold pending the outcome of this adjudication.

 

27. Mr Taylor, for the Respondents, suggests that this construction of the 2002 Act creates an anomaly. He argues that it would be perverse to prevent a squatter from acquiring a title to land merely because he has chosen to apply for a possessory title a few months prematurely. Where a squatter is registered with possessory title at a time when the unregistered title has not yet been extinguished, but thereafter remains in what would otherwise be described as adverse possession, in effect time stops running and it is thus impossible for the squatter to bar the paper owner’s title. In my judgment, the “anomaly”, if it exists, can be justified. First, a possessory title can be upgraded under Section 62 of the 2002 Act. Under Section 62 (1) the registrar may “enter it as absolute if he is satisfied as to the title to the estate”: this power could doubtless be used where further evidence of adverse possession is obtained so as to demonstrate more than twelve years’ possession prior to the date of the initial registration. Further, under Section 62 (4) where a freehold title has been registered as possessory for at least twelve years, the registrar may upgrade it to absolute if he is satisfied that the proprietor is in possession of the land. This would allow a registered proprietor to take advantage of his continued possession of the land, even after registration with possessory title, so as to obtain an absolute title and thus defeat once and for all the interest of the pre-registration owner. Secondly, a squatter is not obliged to register a possessory title – a fortiori, before he can be confident of demonstrating at least twelve years’ adverse possession. He could, as an alternative, enter a caution against first registration and continue in adverse possession of the unregistered title. He could simply remain in adverse possession until the paper owner decided to assert his rights. In my view, however, if the squatter does choose to apply for a registered title, he is voluntarily opting into the new and different code created by the 2002 Act. The whole point of this new regime is that the system does not depend on the operation of the Limitation Act 1980 at all. Indeed, it would be more of an anomaly if two different adverse possession regimes applied simultaneously in respect of the same land, which is the effect of Mr Taylor’s submission.

 

28. Furthermore, it is not at all clear how the Limitation Act 1980 would operate in this case, if the Respondents’ contentions are correct. For the reasons explained above, I have found that the earliest date that they could be said to be in factual possession of the Disputed Land was late in 1996. Let it be assumed, in their favour, but against my findings, that they can show a period of adverse possession commencing in late 1996. The Respondents became registered with possessory title in March 2006. The Applicant applied to close the possessory title in June 2007. The adjudication reference was made in September 2007, and the hearing took place in February 2009. The Applicant has not brought any action to recover possession of the Disputed Land to this day. If the Respondents are right, time continues to run under the Limitation Act 1980 against the Applicant for the entire period, up to and including the date on which possession proceedings are commenced. On this basis, the Applicant’s “title” became extinguished some time in 2008, after the date of the application under Paragraph 5(c) of Schedule 4 to the 2002 Act and after the date of the reference. It seems to me that this would operate unfairly as against parties in the position of the Applicant, whose rights under the 2002 Act are in effect rendered nugatory. In the course of asserting his rights under Section 11(7) - availing himself of the remedy provided under the 2002 Act, instead of issuing proceedings for possession - his rights would have been overridden. I do not think that this can have been the intended legislative outcome.”

 

37.  Mr Jefferies, for the Applicant, relied on this reasoning. He submitted that since the title to the Disputed Land was already registered, once the 2002 Act came into force the provisions of the 1980 Act ceased to apply to it. Accordingly, time did not continue to run against the Applicant after that date. On this basis, even if Mr Allen’s evidence was accepted as establishing adverse possession of the Disputed Land, the maximum period available to the Respondent was 27 years – 1976 to 2003 – which falls short of the required 30 years.

 

38.  Mr Morshead, for the Respondent, did not accept this view. He drew my attention to Paragraphs 2.73 and 14.2, 14.5 and 14.6 of the Law Commission Report which preceded the enactment of the 2002 Act. He stressed the emphasis on the new regime being intended to apply to a registered, as opposed to an unregistered, title. He submitted that section 96 of the 2002 Act should be approached on the basis that the mischief was the protection of a registered title, not an unregistered title. On this view, section 96 should be limited in effect to the Respondent’s possessory title. In other words, the new Schedule 6 regime of adverse possession applies only to the registered possessory title, but not to the unregistered title still (on this view) vested in the paper title owner.

.

39.  There is a problem with this analysis, since in my judgment it is not consistent with the wording of section 96 itself. This provides that “No period of limitation under section 15 of the Limitation Act 1980 (c.58) (time limits in relation to recovery of land) shall run against any person, other than a chargee, in relation to an estate in land or rentcharge the title to which is registered”. Section 15 of the 1980 Act is thus disapplied in relation to “…an estate in land or rentcharge the title to which is registered”. What is “an estate in land”? In my view, this must be construed by reference to the 2002 Act itself, which allows the registration of two estates in land, namely a freehold or a leasehold estate. Is the freehold title to the Disputed Land registered? The answer is yes, as the Property Register for the Disputed Land (Title number K774549) makes express: “This register describes the land and estate comprised in the title. KENT. MAIDSTONE. 1 (01.07.89) The Freehold land shown edged red on the plan of the above Title….”. As section 11(7) of the 2002 Act makes clear, the fact that the class of title is possessory makes no difference to the vesting of the freehold estate in the land in the registered proprietor. The sole difference is that the interest of the prior paper title owner – as at the date of first registration – is not overridden by the registration (as would be the case if the class of title was absolute). In all other respects, registration of the title to the freehold estate, albeit with a limited class of title, operates to vest the legal estate in the registered proprietor. Furthermore, the expression “No period of limitation …………. shall run against any person………..in relation to an estate in land” is apt to include persons other than the registered proprietor. If the intention had been simply to disapply the running of time under the Limitation Act to the registered proprietor, the section could have stated that in express terms. As it is, the phrase “any person” embraces a wider class, including, for example, the person with the unregistered paper title as at the date of first registration.

 

40.  This issue has also been the subject of some discussion by the co-authors of Jourdan and Radley-Gardner’s Adverse Possession (2^nd ed.), where it is suggested that the reasoning in Moore v Buxton may be flawed, on this basis: “As explained in Chapter 20 above, there can be more than one freehold estate in land. There is no provision on the 2002 Act directing that an unregistered estate in the registered land held by someone other than the registered proprietor which subsists at the time of registration is extinguished.” (see paragraph 21-39). Chapter 20 of the book relates to unregistered title. Clearly, where title to land is unregistered, different legal estates may exist concurrently – indeed, section 1(5) of the Law of Property Act 1925 expressly so provides. For example, in addition to the fee simple in possession, there may be successive leases, a rentcharge with a right of re-entry, a legal easement and a mortgage, all created in relation to the same land. To this extent, it is not right to say (as was said at paragraph 24 of Moore v Buxton) that there cannot be more than one legal estate in the land. However, that is not to say that different freehold estates may exist concurrently. If “freehold estate” is given its natural meaning – the fee simple absolute in possession in the land (as opposed to some lesser estate or some right in or over the land such as an easement) – it is clear that there can only be one such interest. It may be subject to defeasance – by a right of reverter, for example – but it is the sole freehold estate. Section 1(1) of the Law of Property Act 1925 provides that the only estates in land which are capable of being created or conveyed at law are (a) an estate in fee simple absolute in possession, and (b) a term of years absolute. I therefore have difficulties with the concept of two concurrently existing fee simple absolutes in possession in the same land. Furthermore, I am not sure that the authors’ analysis can assist once the title to the land has become registered. Registration of the Thompsons with title to the Disputed Land was effective to vest the freehold estate in them – the fee simple absolute in possession. The necessary corollary of this was to divest the Applicant of his unregistered title to the land. From the moment of first registration, the Applicant ceased to have a legal estate in the Disputed Land. This is the way that land registration operates. Take an analogy. A forged conveyance of unregistered land to F, the forger, is lodged at the Land Registry, with an application for first registration. The application is processed and F is registered as proprietor of the freehold title. As a matter of unregistered conveyancing, the forged conveyance cannot be effective to transfer the legal estate to F. It is a nullity: nemo dat quod non habet. However, registration converts this nullity into a legal title to the freehold. The true owner has the right to apply to alter or rectify the register by removing F from the proprietorship register, but until he succeeds he cannot be said to have a legal estate in the land. By the same token, in my judgment, once the Disputed Land was registered in the Thompsons’ name, the Applicant’s immediately pre-existing legal title must have been extinguished. His interest might be regarded as continuing to exist in the form of an equitable interest – being a right to apply to close the possessory title – but manifestly he did not retain the “an unregistered estate in the registered land”, if the estate in question is said to be a legal estate. Such a concept is entirely alien to the system of land registration.

 

41.  For all these reasons, therefore, I conclude that time under the 1980 Act ceased to run against the Applicant after 13^th October 2003. It follows that, at the date of the application to remove the Disputed Land from the Respondent’s title, if that is the relevant date, it could not show 30 years’ adverse possession of the Disputed Land, even if Mr Allen’s evidence had been sufficient to establish adverse possession commencing in 1976.

 

CONCLUSION

 

42.  For all the above reasons, therefore, I shall direct the Chief Land Registrar to give effect to the Applicant’s application dated 11^th May 2009, by removing the Disputed Land from Title number K774549. In the circumstances, it seems right to order the Respondent to pay the Applicant’s costs incurred since the reference commenced in February 2010. However, I shall hear argument on the point. I direct that the Respondent shall file and serve any written submissions on costs by 5pm on Tuesday 19^th April 2011. The Applicant may respond by 5pm on 28^th April 2011. I assume that the parties would like a detailed assessment of costs – assuming that a costs order is made – but if not they should say so, and a breakdown of costs lodged.

 

Dated this 11^th day of April 2011

 

 

 

 

 

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY