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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Smith v Davis & Anor (Miscellaneous cases : Miscellaneous) [2016] EWLandRA 2015_0447 (05 April 2016)
URL: http://www.bailii.org/ew/cases/EWLandRA/2016/2015_0447.html
Cite as: [2016] EWLandRA 2015_447, [2016] EWLandRA 2015_0447

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REF/2015/0447/449 and 448/450

 

 

PROPERTY CHAMBER, LAND REGISTRATION

FIRST-TIER TRIBUNAL

 

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN

 

Alan Smith

APPLICANT

and

James Davis and Mary Davis

RESPONDENTS

 

and

 

James Davis and Mary Davis

APPLICANTS

and

Alan Smith

RESPONDENT

 

 

Property Address: 40 and 42 Stanton Avenue, Blyth

 

 

Made by: Judge Elizabeth Cooke

 

 

 

DECISION

 

 

 

Reasons

 

  1. On 1 March 2016 in the tribunal centre at North Shields I heard four references, two relating to applications for a determined boundary and two relating to applications for the registration of title by adverse possession. Mr and Mrs Davis, who live at 40 Stanton Avenue, Blyth, have made an application for a determined boundary and one for adverse possession, while Mr Smith who lives at 42 Stanton Avenue, Blyth, has likewise made one application of each kind. The neighbours have objected to each others' applications, which all relate to the boundary between their properties. On 29 February 2016 I visited the land concerned, and I am grateful to Mr Smith and Mr Davies for showing it to me.

 

  1. At the hearing, Mr Smith and Mr Davis represented themselves, and Mrs Davis did not attend. Each called a surveyor as an expert witness, and Mr Smith also called Mr and Mrs Mackay, who sold number 42 to him in 2010.

 

  1. Mr Smith and Mr Davis co-operated to produce a trial bundle which I found informative and (most importantly) well-organised. Each presented his case, and cross examined the other and the other's witnesses, in an orderly and helpful manner which enabled the four references to be dealt with in the course of one day. I am most grateful to them both.

 

  1. Below is a sketch plan which indicates, very roughly, the subject matter of the four references. Mr Davis and Mrs Davis seek to have the boundary between the two houses determined along the line A-B, in a straight line along the face of the brick wall of number 42 and extending beyond the house to the boundary with the road at the front and to the fence at the back. They also seek a registered title by adverse possession to the triangle B-C-D. There is a fence along the line C - D and not along the line C - B. Mr Smith seeks to have the boundary determined along the line E-F-G-B and, if and only if that application fails, he seeks a registered title by adverse possession to the area A-X-Y-E. In the paragraphs that follow I deal first with the two determined boundary applications, then with a matter relating to access, then with Mr and Mrs Davis' application for adverse possession, and finally with Mr Smith's application for adverse possession.


The two determined boundary applications: the law

 

Introduction

 

  1. A determined boundary application is made under section 60(3) of the Land Registration Act 2002. Where - as is usual - the boundary to a property has not been determined, the line on the plan is a "general boundary" (section 60(1)) which "does not determine the exact line of the boundary" (section 60(2)). However, section 60(3) provides as follows:

 

"(3) Rules may make provision enabling or requiring the exact line of the boundary of a registered estate to be determined and may, in particular, make provision about—

 

(a)     the circumstances in which the exact line of a boundary may or must be determined,

 

(b)    how the exact line of a boundary may be determined,

 

(c)     procedure in relation to applications for determination, and

 

(d)    the recording of the fact of determination in the register or the index maintained under section 68."

 

  1. Both parties here have made applications for the boundary between their properties to be determined. One application has failed and the other has succeeded, and the reason for that, simply put, is that the plan submitted by Mr and Mrs Davis delineates the boundary and the plan submitted by Mr Smith does not.

 

  1. Decisions in that form have been made on countless occasions by this Tribunal. Neither party suggested that there was any reason why I should not do so. However, had they been legally represented their lawyers would have commented on the recent decision of the Upper Tribunal in Murdoch v Amesbury [2016] UKUT 3 (TCC) (I refer to the Upper Tribunal's decision as " Murdoch" from now on) and would - I imagine - have sought to persuade or reassure me that I could make the decisions that both parties seek. I have to say why I have no doubt that I have jurisdiction to make it. I apologise to the parties for thereby making this decision longer than it otherwise would have been; my decision on their references resumes at paragraph 34 below.

 

The statute, the rules, and the decision in Murdoch

 

  1. Section 60 does not say very much; it leaves the detail to the rules - that is, the Land Registration Rules 2003, of which the relevant rules are 118 and 119:

 

"118.—(1) A proprietor of a registered estate may apply to the registrar for the exact line of the boundary of that registered estate to be determined.

 

(2) An application under paragraph (1) must be made in Form DB and be accompanied by—

 

(a)     a plan, or a plan and a verbal description, identifying the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the general position of the boundary to be drawn on the Ordnance Survey map, and

 

(b)    evidence to establish the exact line of the boundary."

 

  1. The applicant therefore has to provide two things; first, a plan, with or without a description, so that the registrar knows what is the line claimed; second, evidence to show the registrar where the boundary is. Rule 119 continues:

 

119.—(1) Where the registrar is satisfied that—

 

(a)     the plan, or plan and verbal description, supplied in accordance with rule 118(2)(a) identifies the exact line of the boundary claimed,

 

(b)    the applicant has shown an arguable case that the exact line of the boundary is in the position shown on the plan, or plan and verbal description, supplied in accordance with rule 118(2)(a), and

 

(c)     he can identify all the owners of the land adjoining the boundary to be determined and has an address at which each owner may be given notice,

 

he must give the owners of the land adjoining the boundary to be determined (except the applicant) notice of the application to determine the exact line of the boundary and of the effect of paragraph (6).

...

(6) Unless any recipient of the notice objects to the application to determine the exact line of the boundary within the time fixed by the notice (as extended under paragraph (5), if applicable), the registrar must complete the application.

 

(7) Where the registrar is not satisfied as to paragraph (1)(a), (b) and (c), he must cancel the application.

 

  1. So as a starting point the registrar must be satisfied of the three matters set out in rule 119(1). Requirement (c), the identification of neighbours, is not relevant to this discussion. Crucial are (a) and (b).

 

  1. Requirement (a) is that the registrar is satisfied about the accuracy of the plan: it must identify the line claimed. As a matter of Land Registry practice (see "Practice Guide 40: Land Registry plans, supplement 4, boundary agreements and determined boundaries" in paragraph 7, Determined Boundary plan requirements) a plan will be rejected if it does not meet certain technical requirements, including the requirement that measurements be accurate to within +/-10mm, although those requirements are not in the statute or the Land Registration Rules. Indeed, Rule 120 of the Land Registration Rules 2003 makes it clear that there is no need for the plan accompanying the application to be used when the registrar eventually completes an application under Rule 118.

 

  1. Requirement (b) is that the applicant has shown an arguable case that the line on the plan is in fact the boundary. This is not an onerous requirement: the applicant has to show only an arguable case ("rules 118 and 119 ... do not require proof of the applicant's title and the Registrar at that stage is not to undertake a detailed investigation into questions of title, the emphasis is on the accuracy of the line claimed" ( Murdoch paragraph 64, my emphasis)).

 

  1. Those two requirements (a) and (b) are, self-evidently, different ones. If they are not met the application must be rejected. If they are met the registrar must notify adjoining owners.

 

  1. Adjoining owners may then object. If an objection is not groundless and cannot be disposed of by agreement, Land Registry cannot resolve the disagreement and the matter must be referred to the First-tier Tribunal (Land Registration Act 2002, section 73(7)).

 

  1. There is nothing in the rules to say what an objection may be about. But given the content of the Rules, at the very least it is obvious that an objection might relate to requirement (a) above ("the plan is too small a scale"; "the plan shows the hedge but omits the ditch" etc) or to requirement (b) ("the line shown on the plan is not the boundary", or more specifically "the boundary runs not on the west side of the hedge but on the east").

 

  1. Both of these are objections to the plan; both could be said to be about the accuracy of the plan; but they are of a different nature and the latter involves a question of title, being an objection to the applicant's "arguable case" about the position of the boundary.

 

  1. At first instance in Murdoch v Amesbury (Ref/2012/0496) the First-tier Tribunal had to address both types of objection to the plan. The plan did not meet Land Registry's requirements, and the Respondent said that the boundary was not where the plan said it was. The judge rejected the application because the plan was not satisfactory (being inaccurate by more than 10mm) ( Murdoch paragraph 31). Having done so, she then went on to make a further decision (at the request of the Applicant), identifying the position of the boundary, on a line that did not coincide either with the Applicant's claimed line or with the position argued for by the Respondent.

 

  1. The Applicant appealed that decision as to the position of the boundary, on the ground that having disposed of the reference the First-tier Tribunal did not have jurisdiction to make it. In the Upper Tribunal HH Judge Dight agreed. His decision proceeds from the principle that the Land Registration Division of the First-tier Tribunal, being a creature of statute, has jurisdiction only to do what the statute enables it to do. What it can do is set out in section 108 of the Land Registration Act 2002, which enables it to determine matters referred under section 73(7).

 

  1. There is some case law on the extent of the First-tier Tribunal's powers and the meaning of "the matter referred" to it, in particular Jayasinghe v Liyanage [2010] EWHC 265 (Ch) and Silkstone v Tatnall [2011] EWCA Civ 801. Neither decision related to a determined boundary application. In Silkstone at paragraph 48 Rimer LJ said:

 

"A reference to an adjudicator of a 'matter' under section 73(7) confers jurisdiction on the adjudicator to decide whether or not the application should succeed, a jurisdiction that includes the determination of the underlying merits of the claim that have provoked the making of the application."

 

  1. The decision at first instance in Murdoch v Amesbury was made on the basis that the matter referred to the Tribunal was the underlying boundary dispute. The ratio of Murdoch (that is, the deciding principle in the Upper Tribunal and therefore the authoritative ruling that the First-tier Tribunal must follow) was that once a determined boundary application had been rejected on the basis that the plan was technically unsatisfactory the tribunal has no jurisdiction then to go on to make a further decision about where the boundary lies. Paragraph 62:

 

"If the plan is not accurate there is no requirement in the LRA 2002 or related rules for the true position of the boundary to be identified: as will be seen, the application must in those circumstances be rejected by the Registrar or the Adjudicator/Tribunal as the case may be."

 

  1. There is no question of my making a decision in that form in these references and accordingly the decision I make is not within the scope of the decision in Murdoch.

 

  1. However, in his decision in Murdoch HH Judge Dight raised two wider issues; one about the jurisdiction of the First-tier Tribunal to decide matters of title and the other about the circumstances where the Tribunal should direct a party to commence court proceedings under section 110 of the Land Registration Act 2002. I discuss those issues in turn.

 

The jurisdiction of the First-tier Tribunal to decide matters of title in a determined boundary reference.

 

  1. In Murdoch the Upper Tribunal was concerned with a reference where the application was rejected because the plan did not meet Land Registry's technical requirements. It was not concerned with the far more typical situation (as in the two references before me) where no objection is made to the technical quality of the plan, but the issue is whether the line on the plan is in fact the boundary (Rule 118(2) and 119(1)(b)).

 

  1. At paragraph 62 in Murdoch HH Judge Dight said:

 

"it is the accuracy of the identification of the line, rather than title to the line, which is the focus of the application according to the rules."

 

  1. Because of the nature of the decision under consideration in the Upper Tribunal, that statement was obiter - that is, not necessary for the decision the Upper Tribunal had to make and not a principle that the First-tier Tribunal must follow. Nevertheless, I should ask myself whether the First-tier Tribunal has jurisdiction to dispose of determined boundary references, such as those before me and unlike the situation in Murdoch, where the objection relates to title because it is not about the quality of the plan but about what the plan says about the position of boundary.

 

  1. The Rules require a determined boundary application to be assessed not only on the accuracy of the plan (Rule 119(1)(a)) but also on whether the line on the plan is in fact the boundary (Rules 119(1)(b)). The latter is a question about title (to the land on either side of a claimed line). True, section 60 of the Land Registration Act 2002 makes no mention of title to land ( Murdoch at paragraph 62). But neither does it make any mention of plans. The Rules refer plainly to both. It follows that where the requirement under Rule 119(1)(b) is in issue the First-tier Tribunal can examine the evidence and decide either that the application succeeds, because the line claimed is the boundary, or that it fails, because the line claimed is not the boundary.

 

  1. In many, perhaps most, cases the evidence that leads the Tribunal to the conclusion that the line claimed is not the boundary will be evidence that shows where the boundary is. That is the case, as it happens, with Mr Smith's application. The evidence, namely the William Leech plan and the estate plan held by Land Registry, shows that the boundary lies not on the line Mr Smith claims but along the line of the outside face of the wall of number 42; it is not possible as a matter of logic to say where the boundary is not without also saying where it is. A similar example is Cantelmi v Hart (REF/2013/0880) where the boundary lay either along the centre line of two outside walls or on the outside face of those walls; the application failed because the applicants' line was not the boundary, because the boundary was found to be in the other position. That decision was considered and upheld by the Upper Tribunal ([2016] UKUT 35 (TCC).

 

  1. Similarly, in a case where the finding is that the boundary is on another line altogether, rather than on the line argued for by the Respondent, the very same evidence may show where the boundary is not by showing where it is, and vice versa. Those findings (of fact and law) about the boundary will be the reasons for the First-tier Tribunal's direction to the Chief Land Registrar to cancel the application.

 

  1. On this occasion I have heard two references of determined boundary applications. Mr Smith made his application in response to Mr and Mrs Davis'. Each has objected to the other's on the basis that the plan accompanying Form DB, that is claimed to be the boundary, is not. The First-tier Tribunal has jurisdiction to make a decision on both applications by examining the title to the two properties.

 

Directions under section 110 of the Land Registration Act 2002

 

  1. In Murdoch at paragraph 77 HH Judge Dight expressed the view that the First-tier Tribunal should have directed one of the parties to commence proceedings in court so that appropriate orders could be made. Section 110(1) reads:

 

"(1) In proceedings on a reference under section 73(7), the First-tier Tribunal may, instead of deciding a matter, direct a party to the proceedings to commence proceedings within a specified time in the court for the purpose of obtaining the court's decision on the matter."

 

  1. There may be cases where a section 110 direction should be made at an early stage in the proceedings. The jurisdiction of the First-tier Tribunal is conferred by the statute and there will be cases where the parties' dispute cannot be resolved without the need for orders that the Tribunal cannot make. It is uncontroversial, for example, that the First-tier Tribunal cannot give equitable relief such as an injunction. Where it is clear at an early stage in the proceedings that the First-tier Tribunal will not be able satisfactorily to resolve the dispute between the parties, because it goes wider than the matter referred (the application and the objection), then one or other party may choose to commence court proceedings or to ask the Tribunal to direct the other party to do so. The First-tier Tribunal will make such a direction - typically at a case management conference - where it is clearly in the interests of the parties to do so because what is wanted is something that the Tribunal cannot deliver; it will not do so where the request for a section 110 direction is made tactically, for example in order to delay matters or to cause a party to incur unnecessary expense.

 

  1. My decision on the references before me will resolve the parties' dispute as to the boundary between their properties. There was nothing in the pleadings or evidence to indicate to the Tribunal at an earlier stage that a section 110 direction should be made, nor did anything of that nature emerge at the hearing. Accordingly I have no hesitation in disposing of the references without directing the commencement of court proceedings under section 110.

 

Conclusion on jurisdiction

  1. Accordingly, I conclude that the First-tier Tribunal has jurisdiction to decide the matter referred to it in this case, involving as it does a question of title, and therefore I go on to do so. In doing so I am able to resolve the dispute between the parties and there is no question of any need to direct the commencement of court proceedings under section 110 of the Land Registration Act 2002.

 

The determined boundary application: the title to the two properties

 

  1. There are two determined boundaries before me. Mr Smith objects to Mr and Mrs Davis' application on the ground that the line they claim to be the boundary is not the boundary. Mr and Mrs Davis object to Mr Smith's application on the same ground. In order to consider each application I have to look at the title to the two properties.

 

  1. The land on which houses stand in Stanton Avenue was the subject of a 99 year building lease granted on 25 September 1972 by William Leech (Holdings) Ltd to Northern Homes and Estates Ltd. It is a lease of "the Demised Sites", being a numbered list of sites for houses, and the ground rent reserved under the lease is a separate sum for each individual site. The schedules to the lease set out the rights that each site is to have and to which it is to be subject, for example for drainage, access and so on.

 

  1. What seems to have happened is that the individual houses were sold by the assignment of parts of the leasehold title to the buyer. If the building lease was a large cake, each home-owner got a slice. No copy of any of the assignments is available and therefore it is not known how the individual title to each house was defined. It is not known if an individual plan was drawn. The registered leasehold title to number 40 gives the short particulars of the building lease and refers to the schedules to the lease for the rights that are to benefit and burden the leasehold title to the individual property. Whether that is an effective way of creating easements that benefit and burden a title created by the assignment of part of a lease is not something that I have to decide.

 

  1. Paragraph 5 of Schedule 1 to the 1972 lease states that each site is to have:

 

"Full and free right and liberty ... to pass and repass along the part of the Joint Entrance Way not forming part of the site paying a fair share of the cost of keeping the same and the entrance gates thereto in repair..."

 

and Schedule 2 reserves to the Lessor:

 

"Rights of way ... over the part of the Joint Entrance Way forming part of the site corresponding in all respects with those granted in paragraph 5 of the First Schedule."

 

  1. The Joint Entrance Way is defined in recital 2 of the lease as:

 

"any strip of land or road constructed or within twenty one years hereafter to be constructed in the position indicated on the plan as a way leading to any one or more of the Demised Sites ... and situated partly within the boundaries of more than one site."

 

  1. The plan attached to the lease ("the William Leech plan") does not indicate where the Joint Entrance Way is, nor does it indicate whether there are several such entrance ways or just one on the estate. Mr Smith takes the view that it refers to the pathway between each pair of properties; the houses on the estate are mostly pairs of semi-detached houses, although number 42 is a detached house.

 

  1. The William Leech plan does not indicate in words where the boundaries between the houses are to run. There is a dotted line between each pair; on the sketch plan above the dotted line would be roughly from point E - H - K. It may be that that is where the individual boundaries were intended, at that stage, eventually to be, but even if that is the case it does not tell us where the boundary actually was when the individual sites were assigned to purchasers.

 

  1. Indeed, the boundary does not appear to have been placed there by Land Registry when the individual leasehold titles were registered. Wherever there is a pathway between a pair of houses, the red line of the boundary runs along the side of one house and does not encroach upon the pathway, so that one house appears to own the entire pathway. Thus the line claimed by Mr and Mrs David as the determined boundary, A - B on the plan above, follows the edge of the red line of the general boundary on the Land Registry plan, taking a precise line along the face of the brickwork rather than being a thick line.

 

  1. This is apparent from the plan to the registered title to number42, from the title plans for a number of other houses in the street, and from the leasehold and freehold titles to number 40. There are two registered titles to number 40, because Mr and Mrs Davis bought the freehold of their house in 2008 and the two titles have not been merged; the plan to the freehold is identical to the one for the leasehold title. By contrast, when Mr Smith bought his house in 2010 it was freehold and there was no leasehold title in existence.

 

  1. As I noted above, there is no copy of the assignment of part of the building lease for either number 40 or number 42. We do not know whether that assignment incorporated a plan to show where the boundary was. It may be that it did not. The parties' documents also included a Land Registry plan showing the whole estate edged red and the individual properties edged green, and the green edging coincides with the red edging on the individual title plans. So it may be that in 1972 an estate layout was agreed with Land Registry, and the red lines on the individual title plans drawn by reference to the green lines on that layout.

 

Mr Smith's determined boundary application

 

  1. Mr Smith wants the boundary to be determined along the line E-F-G-B, drawing support from the William Leech plan. In fact it does not match precisely. The dotted line on the William Leech plan runs from point E on the plan above, not to point F but from E to H to K to B. When the houses were built neither number 40 nor number 42 had a rear extension, and between point K and the back wall of number 42 was a gate into the garden.

 

  1. Mr Smith called Mr Paul Evans as an expert witness. His report dated 23 November 2015 says that he is qualified to Higher Diploma level with 36 years of surveying experience. His plan, PE1, was very helpful at the hearing; but his report was drawn up after Mr Smith made his application and his was not the plan Mr Smith used.

 

  1. Mr Evans' opinion is that the boundary between the two properties lies, not along the line E - F - G - B, but along the line E - H - K - B, following the dotted line on the William Leech plan. Point K was, he said, 800 mm from the gable end corner of number 42, and therefore sufficient to allow access through a gate into number42's back garden. He explained at the hearing that he took that view because he thought that the dotted line was intended to be the boundary, and he thought that the William Leech plan, with that boundary line, ought to have been used to delineate the individual sites. He thinks that instead Land Registry used the Ordnance Survey plan for the plans to the individual registered titles.

 

  1. Mr Evans gave his evidence clearly and conscientiously; but I have to say, with great respect to him, that the opinion he has expressed does not assist me. He has taken a view about the documents of title to the two properties, which is a matter of law and not within his expertise. In any event his view is about what ought to have been the boundary. I have to consider where it actually was and is.

 

  1. Mr Smith also called Mr and Mrs Mackay, who sold the house to him in 1991. They attended the hearing having received a witness summons, for which Mr Smith applied. I am grateful to them for attending. Mr Mackay confirmed the truth of what he said in a note dated 26 th August 2014, that the pathway between the two houses had been used for the enjoyment, maintenance and repair of number 42 while he and Mrs Mackay lived there from 1993 to 2010. They both confirmed the truth of what they had said in answer to preliminary enquiries before the sale to Mr Smith, namely that there was a "shared footpath" at the side of the house. Mr Smith asked them if they considered that they owned the side pathway; Mrs Mackay said that they had never had to think about ownership. There was shared access on a neighbourly basis. They had unrestricted access as needed.

 

  1. Mr and Mrs Mackay's evidence is not relevant to the determined boundary application.

 

  1. Mr Smith's evidence made it clear that what really concerned him was not ownership but access. He said that he has applied for the boundary to be determined along a line that would work in terms of ensuring his access. But the only evidence that would support the view that that is the boundary is the dotted line on the William Leech plan, which is not where Mr Smith wants the boundary to be. There is no evidence that the individual assignments had a plan at all, or that, if they did, that its boundaries matched the dotted line on the William Leech plan. It is far more likely that Land Registry used an estate plan, probably the one in the document bundle with the green lines; I find as a fact (on the balance of probabilities) that that is what happened.

 

  1. The outer (western) edge of the line on the Land Registry plan follows the obvious boundary feature of the outside of the wall of number 42. The reasonable layman buying the property when the lease was first assigned, with the Land Registry plan in his hand, would take it that that was where the boundary was, and I find accordingly that the boundary between numbers 40 and 42 - leaving aside Mr and Mrs Davis' adverse possession application - lay in 1972 along the outer edge of the brickwork of the gable end wall number 42, and extended in a straight line to the front and back of the houses. That line is indicated by the line A - B on the sketch plan above, and is the line claimed in Mr and Mrs Davis' determined boundary application.

 

  1. As to the line G - C on Mr Smith's plan, this part of his line alone corresponds to that boundary. However, although that line remains the boundary of the registered title to number 40 it is no longer the boundary to the registered title to number 42 because the area C - B - D beside it has been lost by adverse possession, as I explain below. Mr Smith's application for a determined boundary therefore fails.

 

Mr and Mrs Davis' application for a determined boundary

 

  1. By contrast this application succeeds, and there is very little more to say about it in the light of my finding about the boundary above. The line on Mr and Mrs Davis' application plan follows the western edge of the red line on the Land Registry plan.

 

  1. Mr Davis called Mr Alan Holmes, Dip Surv, MRICS, MCIOB, MCIAT, RMaPS, Chartered Building Surveyor, Chartered Builder and Chartered Architectural Technologist as an expert witness. He made a written report dated November 2015. Mr Holmes and Mr Evans also provided a joint report dated 11 January 2016. Both reports are to a large extent concerned with matters of access. Mr Holmes, like Mr Evans, gave his opinion on the title to the property and to the pathway; he takes the view that the boundary lies along the line A - B. Again, he has given his opinion about a matter of law. I have reached my conclusion without regard to that opinion. I do not intend any criticism of Mr Evans or of Mr Holmes.

 

Access along the pathway

 

  1. There is no mention in the register of the freehold titles to these two houses, nor in the leasehold title to number 40, of either house having the benefit or burden of any right of access along the pathway. Yet this dispute about the title to the pathway was prompted not by concern about ownership but by a quarrel about access.

 

  1. It was made abundantly clear by Mr Davis at the hearing, under oath, that he agreed that Mr Smith has a right of access along the side pathway for access to his back garden and for maintenance of his house, not by virtue of the terms of the lease and its ambiguous statement about the Joint Entrance Way, but by virtue of long use by Mr Smith and his predecessors. That is consistent with what Mr and Mrs Mackay said. The only disagreement between them is as to where the right ends.

 

  1. Mr Davis explained that the pathway is longer than it used to be. He explained that he agreed with Mr Smith's predecessors that he would maintain the fence inside his garden gate (between points Z and D on the sketch plan above), and they would maintain the fence on the pathway side, outside the garden. Accordingly he agrees that Mr Smith has a right of access, but not all the way along the pathway.

 

  1. It seems to me that the issue is not about the distance along which the proprietors of number 42 may make use of the pathway, but about the purpose for which they can do so. Both parties agree that that purpose encompasses access to the back garden and the maintenance and repair of number 42. I find that a right of access has been established by prescription - that is, long use - in favour of number 42 for that purpose. That the right has been acquired is agreed by the parties save as to its spatial extent, which cannot be measured precisely but can be defined by reference to purpose. Clearly any access beyond what is required for that purpose will be a trespass; equally any attempt to obstruct access for that purpose will be a legal wrong, the tort of nuisance.

 

  1. Prescription can take place only against a freehold and for the benefit of a freehold. Twenty years' use is required, and that is not in dispute (the documentation in the hearing bundle indicates that the freehold of number 42 was acquired by the tenant 1987).

 

  1. Rule 40 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2014 ("the Tribunal Rules") provides:

 

"(1) The Tribunal must send written notice to the registrar of any direction which requires the registrar to take action.

 

(2) Where the Tribunal has made a decision, that decision may include a direction to the registrar to—

 

(a) give effect to the original application in whole or in part as if the objection to that original application had not been made; or

 

(b) cancel the original application in whole or in part.

 

(3) A direction to the registrar under paragraph (2) must be in writing, must be sent or delivered to the registrar and may include—

 

(a) a condition that a specified entry be made on the register of any title affected...

 

  1. I take it that Rule 40(3)(a) enables me to make a direction to the registrar, as a condition of the determination of the boundary in Mr and Mrs Davis' favour, to make an entry recording the right of access for the benefit of number 42, and I have made that direction

 

Mr and Mrs Davis' application for adverse possession

 

  1. Mr and Mrs David claim title by adverse possession to a triangle of land represented by the area C - B - D on my sketch plan and delineated accurately on their application plan. They do so because the fence between the two rear gardens is no longer in a straight line from the gable end of number 42 but diverges towards number 42; Mr Holmes and Mr Evans agreed at the hearing that points B and D are 400 mm apart.

 

  1. The line C - D is divided by the gate from the pathway into the garden of number 40. Within the pathway is a very thin triangle C - G - Z (the line G - Z is approximately the width of the gatepost). Mr and Mrs Davis say that they have acquired title to this very thin triangle within the pathway and outside their garden gate.

 

  1. It is a fundamental requirement for the acquisition of title by adverse possession that the person in possession must intend to exclude the whole world, including the owner of the paper title. Insofar as the area of which adverse possession is claimed lies outside the back garden to number 40, and within the pathway, the application cannot succeed because the requisite possession has not been shown. Crucially, Mr Smith himself has had access to the pathway and has not been excluded. There is no evidence of Mr and Mrs Davis taking possession at all; they have had shared access to this thin triangle at the edge of the pathway, but that is all.

 

  1. By contrast the area within the back garden to number 40 is bounded, on the number 42 side, by a fence which Mr Smith told me has been there for as long as he has been at the house. The application appears to be unopposed so far as this area is concerned. Accordingly the application succeeds in part, in respect of that part of the triangle C - B - D which lies within the garden to number 40, inside number 40's back garden gate, and bounded on my sketch plan by points G - Z - D - B.

 

  1. It should be noted that although the boundary of number 40 has been determined all the way from point A to B on the sketch plan, that determination is in part academic, because once the adverse possession application has been processed it will number longer be the boundary with number 42 between G and B. The boundary with number 42 will be the line C - G - Z - D. There is no determined boundary application in respect of the line Z to D. It is clear from what the parties have said to me, however, that both regard the fence from Z to D as belonging to Mr and Mrs Davis.

 

Mr Smith's application for adverse possession

 

  1. Finally I come to Mr Smith's application for adverse possession of the flower bed at the front, bounded by points A - X - Y - E. I have to deal with this only because Mr Smith's application for a determined boundary fails.

 

  1. Mr Davis at the hearing made it clear that he does not dispute the fact that Mr Smith and his predecessors in title have been in possession of the flower bed for many years - since well before 1991 (and accordingly well before the law on adverse possession changed in 2003). Indeed, he put a fence in the early 1970s on his side of the flower bed for many years, until (I think in 2013) he looked at the Land Registry plan and came to the conclusion that mid-line of the pathway (including E - Y) was not his boundary; then he took his fence down, leaving Mr Smith's fence in place. In view of Mr Davis' concession on this point, the evidence of Mr and Mrs Mackay that they had shared access to the pathway was unnecessary.

 

  1. Mr and Mrs Davis hold the registered leasehold title to number 40. In accordance with section 75 of the Land Registration Act 1925 and the transitional provisions in the Land Registration Act 2002 their leasehold title in the land within Mr Smith's application for adverse possession is held upon trust for Mr Smith, and his application for registration on the basis of his adverse possession succeeds.

 

  1. The law of adverse possession is about the bringing to an end of the right to take action; if a landowner does not remove a trespasser by bringing an action against him within 12 years (under the pre-2003 law) then the right to remove the trespasser comes to an end and the landowner's title is lost. The complication that arises when land is let is that while the lease is running its course the freeholder cannot remove the trespasser because he does not have possession of the land; but once the lease comes to an end, time starts running again. In 2008 Mr and Mrs David bought the freehold to their house. The freehold and leasehold titles have not merged. The freehold title remains unaffected by the adverse possession.

 

  1. Accordingly Mr Smith's application on Form ADV1 succeeds and I have directed the Chief Land Registrar to give effect to his application as against the leasehold title.

 

 

Costs

  1. In this tribunal costs usually follow the event, so that the losing party pays the successful party's costs. I have determined for references. Mr and Mrs Davis' determined boundary application was successful. Mr Smith's determined boundary application was not, but would have succeeded in part but for the adverse possession claim to the back garden. Mr and Mrs Davis' application for adverse possession failed in part and succeeded in part. Mr Smith's claim to title by adverse possession was well-founded and succeeds so far as Mr and Mrs Davis' leasehold title is concerned.

 

 

 

 

 

 

 

 

  1. Accordingly I take the view that there is no overall successful party and I am not minded to make an order for costs. However, I have not heard from the parties on that point. If either wishes to make an application for costs they must do so by 2 May 2016, and I will then give directions

 

 

 

Dated this 5 th day of April 2016

 

 

 

 

 

 

 

 

BY THE ORDER OF THE TRIBUNAL

 

 

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