ON APPEAL FROM WORCESTER COUNTY COURT
HHJ PEARCE-HIGGINS QC
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE JACKSON
| ZARB & ANR
|- and -
|PARRY & ANR
Mr Christian Sweeney (instructed by Lyons Davidson) for the Respondents
Hearing date : 18 October 2011
Crown Copyright ©
Lady Justice Arden:
"…all that piece or parcel of land at the rear of Fleet House … which for the purpose of identification only is edged in red on plan "A" and dimensioned and delineated in plan "B" both annexed hereto was transferred by the said Desmond Little to the said Robert Ceen and Julia Melanie Ceen in fee simple."
Plans A and B were annexed to the deed of gift, Plan B having been drawn up by Mr Ceen.
"19. On Sunday 29 July 2007, it was a lovely morning and we were taking photographs around the house and garden, we had heard the Zarbs making a noise but that was not unusual as at weekends they frequently used a chain saw, tractor and post rammer around their property. On going behind the Coach House we were absolutely amazed to find Mr and Mrs Zarb on [the Plot] banging fence posts into our lawn. They had removed some of Mr Little's original post and wire fence from the eastern boundary of [the Plot], cut down an elderflower tree on our property that I used for making elderflower champagne and cordial and had uprooted our 12 foot post rail fence on the southern boundary of [the Plot] and had thrown it onto the lawn. I instantly took photographs, I think they thought we were away (we have a camper van) and were very surprised at being caught, my husband asked them to remove themselves from our garden immediately and I fetched a little dictating machine to record any conversations. Both of them refused to leave. Mr Zarb actually unwound a long surveyor's tape from the bottom of our garden (east) in a westerly direction towards the walnut tree that was roughly on the boundary between [the Plot] and [the Zarbs' property] and approximately 5 feet inside the boundary hedge to the south of [the Zarbs' property] enclosing not only the entire hedge but also our Victoria and Mirabelle plum trees in the garden and saying that he was taking it by force as it belonged to him. We asked him to explain and he said that he had a map (plan B) that showed that the eastern boundary of [the Plot] (that he later referred to as C-B2) should be 40 feet long and because on the ground that distance from post B2 to the hedge measured 42.5 feet, the southern hedge and nearby trees belonged to him and he was taking them.
21. Mr Zarb refused to listen to any more discussion and came at me aggressively, I stood my ground and he came right into my space glaring down at me nose to nose trying to intimidate me. This was on our own lawn with my husband and Mrs Zarb watching. I looked up at him and said "Mr Zarb do not try your bully boy tactics with me". He looked incandescent with fury and both my husband and I asked both of them again to remove themselves from our property, both refused so I asked my husband to go and phone the police. It was then that Mrs Zarb asked her husband to back off and leave the property. It was at least 20 minutes from discovering them to their leaving our property. We were badly shaken as we could not have imagined anyone having the 'hard face' to come onto a neighbour's property to bang fences into their lawn and then have the temerity to refuse to leave."
The 2002 Act
(1) A person has a defence to an action for possession of land if—
(a) on the day immediately preceding that on which the action was brought he was entitled to make an application under paragraph 1 of Schedule 6 to be registered as the proprietor of an estate in the land, and
(b) had he made such an application on that day, the condition in paragraph 5(4) of that Schedule would have been satisfied."
"5 (1) If an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the following conditions is met…
(4) The third condition is that—
(a) the land to which the application relates is adjacent to land belonging to the applicant,
(b) the exact line of the boundary between the two has not been determined under rules under section 60,
(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and
(d) the estate to which the application relates was registered more than one year prior to the date of the application."
"Subject to paragraph 16, a person may also apply to the registrar to be registered as the proprietor of a registered estate in land if—
(a) he has in the period of six months ending on the date of the application ceased to be in adverse possession of the estate because of eviction by the registered proprietor, or a person claiming under the registered proprietor,
(b) on the day before his eviction he was entitled to make an application under sub-paragraph (1), and
(c) the eviction was not pursuant to a judgment for possession."
The three issues
i) Was the judge in error in rejecting the argument that the Ceens' possession of the Strip was with Mr Little's consent so that the possession could not be adverse?
ii) Was the judge correct to hold that the adverse possession of the Strip by the Parrys had not been interrupted by the Zarbs' attempt to fence off the Strip in July 2007 so as to start time running again?
iii) Did the Parrys satisfy the requirement in paragraph 5(4)(c) of schedule 6 to the 2002 Act that, throughout the previous period of ten years, they should reasonably have believed that they owned the Strip?
The first issue – Was the judge in error in rejecting the argument that the Ceens' possession of the Strip was with Mr Little's consent so that the possession could not be adverse?
"15. It is quite clear that in fact the plan was intended to be used as no more than a rough indication and not a precise plan. It was always the intention I am satisfied that Mr Little and Mr and Mrs [Ceen] intended that the southern boundary of the land to be conveyed was a continuation of the existing hedge, the boundary through the centre of the hedge, and a continuation of that…. It is unfortunate that those sorts of matters were not made plain on the plan and that has led to the current problem but as a matter of reality I have absolutely no doubt that that was what was intended.
17. Mr Little, at about the same time, erected a stock proof fence at his side of the hedge on his own land, not in my judgment to mark a boundary but merely to be a stock proof fence to keep his stock in and out of Mr and Mrs [Ceen]'s garden. It appears they got on well and were not too fussed about boundary demarcations…"
"In my judgment, there is absolutely no doubt that during the time they were there Mr and Mrs [Ceen] had both factual possession and intention to possess. The fact that Mr Little did not object is irrelevant. He did not object because he thought he was not the owner. It was not with his consent. In my judgment this is a false point to take. " (judgment paragraph 23)
"Measurements for the sale of the plot were taken from the centre of the existing, natural hedge... south boundary, the iron posts being designated as centre, there was never any kind of fence on our side of this boundary; the line and remains of fence posts are inside the hedge. There were no boundaries on the east and north sides, so these were the ones to be marked out and agreed for the transaction. Where existing old trees interfered with the exact siting of posts, Mr Ceen and Mr Little agreed between them where the post should be sited. That original post and wire fence is the same as is still standing today 15 years later….
It was agreed.. that [Mr] Little would erect the fence (he did this himself) as he saw fit and we were responsible for maintaining it. Mr Little actually chose to give us the extra tree and a few feet. He also erected a post and wire fence a boundary to the south of the old hedge... approximately 3 feet from the south edge of the hedge and 5 feet from its centre. The hedge to the south had been there a very long time."
"If a person is in possession of land with the permission of the true owner, his possession cannot be adverse. That permission may be expressly given or it may be implied. It will be implied where there has been some overt act by the landowner or some demonstrable circumstances from which it can be inferred that permission was given. It is immaterial whether the squatter was aware of these matters but they must be probative of and not merely consistent with the giving of permission. They must be such that a reasonable person would have appreciated that the user was with the permission of the landowner. Possession with permission, which can never be adverse is quite different from the possession in which the landowner acquiesces, which may be adverse." (page 1417)
The second issue: Was the judge correct to hold that the adverse possession of the Strip by the Parrys had not been interrupted by the Zarbs' attempt to fence off the Strip in July 2007 so as to start time running again?
"...There certainly was some discussion in 2001 and 2002 about the precise line of the boundary…. The matter remained quiet really until 2007 because for a substantial part of that, Mr and Mrs Zarb were not in residence. There came a time when Mr and Mrs Zarb sought to assert rights of ownership over the disputed area and, indeed, committed certain acts to support that but the reality was in my judgment that effectively Mr and Mrs Parry remained in occupation of the land, partly waiting for the matter to be resolved either by consent, by agreement, or in the absence of that by these court proceedings, and their occupation was not disturbed in any significant way by what Mr and Mrs Zarb did. " (Judgment, paragraph 24)
"(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."
"[The defendant's] own use of the land by turning heifers on to it during winter months falls, it seems to me, far short of dispossessing the plaintiff. Possession is, from its nature, exclusive in this connexion. There is no question of concurrent possession. It would, I think, be quite wrong to regard the owner of arable farmland as having been dispossessed of that land because during certain winter months he personally makes no use of it and some other person puts cattle on it.
Counsel for the defendant, cited Allen v England. In that case, Erle CJ gave a short judgment in these terms ((1862), 3 F & F at p 52):
"It may be taken that the plaintiff had the beneficial occupation for more than twenty years, and if that will give him a title, I will give him leave to move. But, in my judgment, every time Cox put his foot on the land it was so far in his possession that the statute would begin to run from the time when he was last upon it."
Counsel for the defendant relied on that case as an authority for saying that whenever the lawful owner puts foot on land in the possession of another, then he is to be treated as having taken possession himself, so that the adverse possession ceases. I do not think that that case is an authority for such a proposition. Allen v England is a case of permissive user of a garden where the owner paid periodical visits to the garden. In those circumstances, the way in which Erle CJ put it was no doubt correct; but the way in which he puts it is not, I think, in point in the ordinary case of adverse possession. In that ordinary case, one must find that the true owner took possession in the ordinary sense of that word, to the exclusion of the wrongful occupier. I was referred on this point to a number of cases. I shall not go through them, but will mention as an instance that of Doe d Baker v Coombes. I conclude, then, that as regards the first period, the plaintiff remained in adverse possession of No 446 and that there was no cessation of that adverse possession." (page 812A-F, my emphasis)
The third issue – did the Parrys satisfy the requirement in paragraph 5(4)(c) of schedule 6 to the 2002 Act that they should reasonably believe that they owned the Strip?
"The period of reasonable belief as to ownership must last 10 years. That period of reasonable belief will come to an end once the squatter becomes aware that he does not own the land. Only then will he realise that an application for registration must be made. "
Disposal of the appeal
Lord Justice Jackson:
The Master of the Rolls: