REF//2011/0260

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF

REFERENCES FROM HM LAND REGISTRY

 

 

BETWEEN

 

CURATUS TRUST COMPANY (MAURITIUS) LIMITED

 

Applicant

And

 

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF WANDSWORTH

Respondent

 

 

Property: 20 Elcho Street, London SW11 4AU

Title Number: LN141056

 

 

Victory House, London

26 January 2012

 

 

Representation: Mr Stephen Jourdan QC instructed by Boyes Turner appeared for the Applicant; Mr Andrew Kinnier instructed by Sharpe Pritchard appeared for the Respondent

 

Application based on adverse intention – whether intention established – whether omission of disputed land from planning application of surrounding land amounts to an acknowledgement of title within section 29 of the Limitation Act – Chief Land Registrar order to give effect to the application

 

 

 

DECISION

 

Introduction

 

1.                     This is a claim to land by adverse possession. By an application dated 20 August 2010, Curatos Trust Company (Mauritious) Limited (‘the Company’) applied under paragraph 18 of Schedule 12 to the Land Registration Act 2002 to be registered as proprietor of title number LN41056 (‘the Land’). The Land is registered in the name of the Mayor and Burgesses of the London Borough of Wandsworth (‘the Council’). The Council objected on the ground that the Company could not show 12 years adverse possession prior to 13 October 2003 (when the 2002 Act came into force).

 

2.                     The matter was referred to the Adjudicator on 10 March 2011. I had the benefit of a site view on 26 January 2012. The Land is known as 20 Elcho Street, London SW11. It was originally the site of a house, measuring some 15’ by 50’, and was part of a row of terraced houses on the north eastern side of Elcho Street, all of which were demolished in the mid 1970s. From at least 1984 onwards, the Land has formed part of a car park (‘the Car Park’) which in turn forms part of the Company’s title TGL172771.

 

3.                     There is nothing on the ground to distinguish the Land from the remainder of the Car Park. Since 1984 there has been no access to the Car Park from Elcho Street. The only access is from an access way (‘the Access Way’) which runs off Parkgate Road, to the east of the Car Park, and leads to a large warehouse which also forms part of the Company’s title. There is an automatic barrier at the entrance to the Car Park operated and controlled by the Company. There is no other access to the Car Park from the Access Road.

 

4.                     For the reasons set out more fully below, I will order the Chief Land Registrar to give effect to the Company’s application.

 

 

 

Background and evidence

 

5.                     The Metropolitan Borough of Battersea was registered as proprietor of the Land on 12 September 1956. In 1964, title was transferred to the Council. As I have said above, the house on the Land (together with the other houses in the same terraced row) were demolished in the mid 1970s. The next record relating to the use of the Land, is the authorisation by the Council of a licence to a Mr Richard Brehaut (who was blind) to house and exercise a guide dog during the day. A draft licence was prepared but there is no evidence that it was entered into. The Land was at that time overgrown with weeds, and, it seems, at risk of unauthorised occupation.

 

6.                     On 25 June 1984 Langdon Investments Limited (‘Langdon’) was registered with title to land described as: ‘ the sites of 27-31 (odd numbers) Parkgate Road, 33 Parkgate Road, 2-18 (even numbers) and 22 Elcho Street, and land and buildings on both sides of Elcho Street’ under title SGL8942787 (which then became TGL172771.). This land has been referred to throughout the reference as ‘the Surrounding Land’.

 

7.                     The Surrounding Land in essence comprises the Car Park (minus the Land) further buildings beyond the Car Park (and still on the north east side of Elcho Street), a large warehouse to the east of those buildings, the Access Way, and a building fronting onto Parkgate Road.

 

8.                     In 1984 Langdon erected a wooden fence separating the Car Park from Elcho Street. Between 1984 and 1987 Langdon granted various licences to various companies to use the Car Park. In April 1987 the automatic barrier was installed. At the same time railway sleepers were laid along the Access Way preventing any access to the Car Park other than through the barrier. No keys were requested by or given to the Council at any time. The various users of the Car Park were asked to provide a deposit of £100 for the release of the keys.

 

9.                     By letter dated 31 October 1988 the Council wrote to Mr Kevin Cassandro regarding the Land. The letter was written to Mr Cassandro of Domus Tiles Ltd. Mr Cassandro was then also a director of Langdon, and is a beneficiary of the one of the trusts which has a beneficial interest in the Surrounding Land. The letter, written by the Borough Solicitor, stated that the Council had become aware that the Land was being used without the Council’s authority, and asked that, if Mr Cassandro was interested in entering into a licence, he contact them within 14 days, otherwise the Land would be made secure. Mr Cassandro replied on 2 November 1988, saying that he might be interested in entering into a licence, and giving the name of the managing agents.

 

10.                 Nothing came of this, and on 20 August 1991 the Council wrote again to Mr Cassandro, stating that the Council intended to take possession of the Land and make it secure. Again, nothing further happened.

 

11.                 In June 1992 Langdon applied for planning permission to redevelop the Surrounding Property. The application excluded the Land. A further application was made in March 1993, again excluding the Land. In 1995, Langdon tarmaced the Car Park, and thereafter repaired and maintained it as required. Between 1995 and 2000 Langdon received payments from various users for the Car Park. In February 2001 Langdon entered into a tenancy of part of the Surrounding Land with Domus Tiles, including car parking in the Car Park for 21 cars.

 

12.                 On 20 April 2006 Langdon transferred title of the Surrounding Land to Copex Trustees Limited. This transfer was not for money. On 26 October 2006, Copex transferred title to the Company (again, not for money). The beneficial ownership of Langdon, Copex and the Company has remained the same throughout.

 

13.                 On 6 July 2007 a letter was written on behalf of the Company to the Council by Property Development Services asking the Council whether they would consider transferring the Land to the Company so as to allow a better redevelopment of the entire site. If the Council wanted to retain the Land, the writer asked for details of the person to contact to be granted a licence whilst works were being carried out to the Surrounding Land.

 

14.                 A further application for planning permission to develop the Surrounding Land was made in January 2008. Again, this excluded the Land. On 4 November 2008 a further email was written on behalf of the Company to the Council stating that attempts had been made in the last 15 months to discuss the Land with little success. The Land was not part of the proposals. In February 2010 permission was granted for the demolition of the warehouse and other buildings and for a redevelopment of the site.

 

15.                 In June 2010 the wooden fence which had previously separated the Car Park from Elcho Street was replaced by a wall. Finally, it is to be noted that it appears that the Land was included by the Council at all times as part of ‘the Car Park and Premises’ for rating purposes.

 

16.                 On behalf of the Company, I heard evidence from Kevin Cassandro and his brother, Piero and from Gary Wyatt, an accountant and director of an associated company. On behalf of the Council, I heard from Geoffrey Clark, the Borough Valuer. There was little factual dispute between the parties. Mr Clark became Valuer in September 2008, and accordingly could only limit himself to a review of the disclosed documents.

 

17.                 The Cassandro brothers did not dispute that they knew that the Land did not belong to them. That is why it was not included in the applications for planning permission. It was not until 2010 that they became aware of the concept of adverse possession. Kevin Cassandro stated that he was unaware of the letter dated 6 July 2007 until he saw it in the bundle, but he accepts that, in any event, he shared the belief then that the Land belonged to the Council. Mr Wyatt, it seems to me, was not in a position to add anything material.

 

Legal Analysis

 

18.                 The relevant law is now well established. The leading case is JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. To establish adverse possession, a squatter must prove that he had both factual possession and the requisite intention to possess. So far as factual possession is concerned, the squatter must show that he had an appropriate degree of physical control of the land; that his possession was a single possession; that it was exclusive, in that a squatter cannot be in possession at the same time as the true owner, and that he dealt with the land as an occupying owner might have been expected to deal with it. The question is one of fact, depending on all the circumstances, and in particular the nature of the land and the manner in which such land is commonly enjoyed.

 

19.                 In the present case, in the light of the evidence, the Council do not formally concede that factual possession has been made out, but argue that the appropriate focus should be on the requisite intention to possess. It seems to me unarguable but that factual possession has been established. The Company, and its predecessors in title, controlled access to and use of the Land, and treated it as being all of a piece with the remainder of the Car Park. There is nothing on the ground to indicate where the Land is. The Council have never had, and do not claim to have had, any access to the Land since 1984. The Car Park, and the Land, are enclosed, and inaccessible save with the permission of the Company (and before that of its predecessors).

 

20.                 The Council rely on their letters in October 1988 and May 1991, together with the reply from Mr Cassandro in November 1988 stating that he might wish to enter into a licence, and on the planning applications, as evidencing a lack of intention to possess. The fact of excluding the Land from the application for planning consent, it is said, indicates an obvious lack of intention to possess.

 

21.                 This argument, it seems to me, rests on a fundamental misconception as to the relevant intention. The intention is to possess; not to own. A person can be in possession of land even if they know they do not own it, and ask the paper title owner for a lease or licence to continue in possession. The point is dealt with in Pye at paragraph 46: ‘Once it is accepted that the necessary intent is an intent to possess and not to own and an intention to exclude the paper owner only so far as is reasonably possible, there is no inconsistency between a squatter being willing to pay the paper owner if asked and his being in the meantime in possession. An admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime’.

 

22.                 A written acknowledgement of title, however, made by or on behalf of the person in adverse possession, signed by the person making it, and made during the limitation period re-starts the limitation period: Limitation Act 1980 s 29. But even if it were the case that the letter dated 2 November 1988 was a written acknowledgement, and time began to run afresh, title would be barred by 2 November 2000. This why the letter written in July 2007 is also irrelevant: the limitation period had by then expired.

 

23.                 The Council’s final, and in my judgment erroneous, argument was that the planning applications made in 1992 and 1993 amount to an implied acknowledgement of title, the effect of which was to start time running again. If this analysis is correct, it is said, then it also follows that the application should have been made under section 97 and Schedule 6 to the Act and not under the transitional provisions.

 

24.                 The answer to the point is a simple one. The Company knew it did not own the Land. This is irrelevant to their intention to possess. The argument that a failure to refer to the Land in the planning application amounts to an acknowledgement of title by omission is, as Counsel for the Company submitted, fanciful. An acknowledgement within section 29 is a written communication to the effect that the paper owner has a better title: nothing short of this will be sufficient. The omission of any reference to the Land in the planning applications is explicable by the fact that the proposed development was concerned only with the Surrounding Land: it tells the reader nothing at all about the title to the Land.

 

25.                 For all these reasons I will order the Chief Land Registrar to give effect to the application.

 

Costs

 

26.                 In principle, the Company is entitled to its costs since the date of the reference (10 March 2011). I have seen a schedule claiming a grand total of £35,130.45. If this is not limited to the costs incurred since the date of the reference, a further schedule needs to be filed and served within 14 days. If it is so limited, the Council may make such representations or objections as they deem appropriate by 21 days from the date of this decision. Subject to any reply, I will then consider whether to deal with costs summarily or order a detailed assessment. If costs are agreed, the parties are requested to let the Adjudicator’s office know.

 

BY ORDER OF THE ADJUDICATOR

 

 

ANN McALLISTER

 

Dated this 13 ^th day of March 2012