England and Wales Land Registry Adjudicator

 

 

 

 

 

The Adjudicator to HM Land Registry

 

Case Number: REF/2004/1262

Title Number: AGL123858

Property: Land adjoining Totteridge House, Totteridge Village, Totteridge

Applicant: Mrs Kathleen Edith Painter (in person)

Respondent: Mr Alan Mattey

Respondent’s representative: Ms Alison Sandler, Solicitor

Before: Mr Edward Cousins - the Adjudicator to HM Land Registry

Hearing: At Procession House on 19^th January 2006

 

 

DECISION

 

Alteration of the Register - Bare Trust - Overriding Interest

 

THE APPLICATION

1. Mrs Kathleen Edith Painter is the Applicant (“the Applicant”) in an application for alteration of the register of Title No. AGL123858 by the removal of a parcel of land, being part of the land comprised in that title. The Applicant is the freehold owner of neighbouring property, namely, 21 Priory Close, Totteridge, London N20 8BB (“21 Priory Close”). 21 Priory Close is currently unregistered land.

 

2. Notice of the application was served on Mr Alan Mattey (“the Respondent”) who is the registered proprietor of Title No. AGL123858, being land adjoining Totteridge House. He in due course objected to the application on the grounds set out in a letter dated 23^rd September 2004.

 

3. As an objection had been made by the Respondent the issue was referred to me under the provisions of section 73(7) of the Land Registration Act 2002. On 19^th January 2006 the hearing of the dispute took place at Procession House when evidence was called and submissions made by both sides.

 

THE ISSUE

4. For ease of reference I shall refer in this decision to two plans produced by the Land Registry. The first of these is an Illustrative Plan which accompanied the Case Summary forwarded to this Office dated 9^th December 2004, upon which the land the subject of this application is marked tinted blue (“the Blue Land”). The second plan is a Notice Plan produced by the Land Registry upon which appear three parcels of land respectively tinted yellow, blue and pink. The land tinted pink in fact is the Blue Land identified on the Illustrative Plan and hereafter I shall refer to it as the Blue Land. Upon the Notice Plan the Applicant made various marks, to which I shall refer again below.

 

5. In the Applicant’s Statutory Declaration dated 21^st July 2004 the Applicant claims unregistered title to 21 Priory Close being the whole of the land shown edged red (“the Red Land”) on the Illustrative Plan. In particular for the purposes of this application she asserts that the Blue Land forms part of 21 Priory Close. Copies of her documentary title were attached to this Statutory Declaration and the Applicant’s then solicitors lodged an application for first registration of the whole of the Red Land.

 

6. Of significance in this case is the fact that the Applicant relies upon Counsel’s Advice (Mr Charles Harpum) which sets out the history of the case, his interpretation of the root of title, and the grounds upon which the application is based. The Applicant has, in effect, waived privilege in respect of this Advice in that, not only was a copy of it enclosed for the notice served on the Respondent, but also it appears as an exhibit to the Applicant’s Statement of Case in the present proceedings.

 

THE FACTUAL BACKGROUND TO THE ISSUE

7. The Root of Title

In order to understand the basis of the application it is necessary to have regard to the somewhat complex conveyancing history of the various parcels of land which later became known as 21 Priory Close and Totteridge House. I can do no better in this exercise than to refer to Counsel’s Advice in support of the application for alteration of the register of title. The submissions relating to the effect of the various transactions are set out in paragraph 3 of this Advice, to which I shall refer again below.

 

8. I shall also later refer to the evidence given during the course of the hearing in support of the submission made by the Applicant that the whole of 21 Priory Close has been and remains in the physical possession and control of the Applicant.

 

9.                  I should state at the outset that I have come to the conclusion that the legal effect of the various transactions is as set out in Mr Harpum’s Advice.

 

10.              After the Conveyance dated 31^st January 1947 (which conveyed a substantial parcel of land at Totteridge as identified on the plan in the Abstract of Title) the title to the land comprised in that Conveyance was registered at HM Land Registry under Title No. HD6922. Subsequently by a Conveyance dated 6^th February 1953 part of the land included in that Conveyance was conveyed by Mr William Petty Render to his son in consideration of natural love and affection. It is apparent from the plan following page 5 of the Abstract of Title that the extent of land conveyed out of the original parcel of land extended to the southern edge of what was formerly known as Plot 11, by then known as 21 Priory Close, but no further.

 

11.              The feature which apparently then arose, and which has caused or contributed to the subsequent difficulties, is that it would seem that this Conveyance of 6^th February 1953 was never registered at HM Land Registry. That being so, it took effect merely in equity and as such could be defeated by a subsequent registered disposition of the same land for valuable consideration. Thus any subsequent dispositions would only vest the equitable title in the purchaser (see Law of Property Act 1925, section 63).

12.              There were several such subsequent dispositions. The first of these was on 24^th August 1954 when the whole of 21 Priory Close was conveyed by Daniel T Jackson Ltd to Mr Fuller. This Conveyance was never registered at HM Land Registry. The land conveyed included the Blue Land, together with other land the subject of a second application by the Applicant referred to this Office (REF 2004/1263). That dispute has now been resolved.

 

13. On 11^th December 1956 there was a transaction whereby part of the land comprised in Title No. HD31369 (which included the Blue Land) was transferred by William Petty Render to the predecessor company to Totteridge House Limited.

 

14. This was followed by an application made to HM Land Registry on a date unknown but in the year 1959 for the removal of land from the register of title of part of the land comprised in Title No. HD6922 including that part of No. 21 Priory Close tinted yellow on the Notice Plan. This did not include the Blue Land.

 

15. On 23^rd October 1963 the land comprising the whole of 21 Priory Close (including the Blue Land) were conveyed on sale by Albert Richard Fuller to the late Robert John Painter, the Applicant’s husband. On 4^th October 1972 Mr Painter died and on 31^st January 1973 there followed the Grant of Probate to his Estate, which included 21 Priory Close. This was followed by a vesting assent dated 3^rd January 1977.

 

16. On 22^nd September 2003 part of the Title No. HD31369 (which included the Blue Land) was registered under a new Title No. AGL120853. This followed the transfer by Knightspur Properties PLC to Turner Financial Services. Finally, on 21^st November 2003 there was a transfer by Rinestone Properties Limited to the Respondent of all the property comprised in Title No. AGL120853, including the Blue Land.

THE LEGAL EFFECT OF THE TRANSACTIONS

17. I have already made reference to the fact that there was a failure to register the Conveyance of 6^th February 1953 the result of which meant that it, and subsequent dispositions, took effect merely in equity. As such the estate conveyed was vulnerable and could be defeated by a subsequent disposition of the same land for valuable consideration once registered. Thus, the Conveyance by Mr Render on 2^nd June 1953 to Daniel T Jackson Limited only transferred the equitable title in, inter alia, the Blue Land. By the same token Mr Fuller only acquired the equitable interest on the conveyance to him of the land (including the Blue Land) on 24^th August 1954.

 

18. Under the Land Registration Act 1925, however, where a registered disposition for valuable consideration was completed by registration, the transferee or grantee took its subject to the encumbrances and other entries appearing on the register, and, importantly, to any overriding interests (see section 20(1)).

 

19. I am satisfied that at this stage in June 1953 the legal estate in the Blue Land remained vested in Mr William Petty Render as the registered proprietor of the land comprised in the Conveyance of 31^st January 1947. Mr Render held the legal estate of No. 21 Priory Close on a bare trust for Mr Fuller as the entire beneficial interesting that property had vested in Mr Fuller.

 

20. The effect of the transfer of 11^th December 1956 would have been to vest the legal estate in the land transferred which included the Blue Land in the company which later became Totteridge House Limited. The reason for this is that Mr William Petty Render was the registered proprietor and was therefore legally able to transfer such land. Once registered the legal estate vested in the company (see section 69(1) of the Land Registration Act 1925). The transfer of that part of No. 21 Priory Close comprising the Blue Land, however, would have been subject to the beneficial interest held by Mr Fuller under the bare trust, to which I have referred above.

 

21.              The rights of a beneficiary holding under a bare trust are defeasible. If, however, as would appear to have been the case, Mr Fuller was in actual occupation of the Blue Land, as part and parcel of his occupation of 21 Priory Close, then he would have had an overriding interest pursuant to the provisions of section 70(1)(g) of the Land Registration Act 1925 as a bare trust falls within those provisions (see Hodgson v. Marks [1971] Ch 892).

22. Further, provided that the land remained within the actual occupation of the owners for the time being of 21 Priory Close then the paper title owner of the Blue Land on each occasion would have taken subject to the overriding interest held by Mr Fuller and his successors in title (see section 20(1) of the Land Registration Act 1925). As a result of the Conveyance by Mr Fuller to Mr Painter on 23^rd October 1963 of 21 Priory Close, Mr Painter acquired Mr Fuller’s beneficial interest in the Blue Land together with the other land comprised in the Red Land and on Mr Painter’s death his beneficial interest in that land vested in his executor and thereafter in the Applicant.

 

23. Further, provided that Mrs Painter and previously her husband have remained in actual occupation throughout the 40 years or so of the Blue Land, the overriding interest has therefore continued.

 

24. Thus, subject to the issue raised by the Respondent through his solicitor as to whether there has been occupation/possession of the Blue Land by Mrs Painter and her late husband, I am satisfied that on every disposition of the registered legal title of the Blue Land the transferee on each occasion has taken subject to the overriding interest of the owners of 21 Priory Close. In principle, therefore, I find that the Respondent as the present registered proprietor holds the legal estate on a bare trust for the Applicant.

 

25. I should state in passing that one peculiarity in the case relates to the effect of the de‑registration of certain parcels of land in 1959 (see paragraph 14 above). I am satisfied, however, that this is not a matter which affects the position of the Applicant in this dispute. In so far as it is relevant to the matter before me I agree with Counsel in paragraph 11 of his Advice that the effect of the Conveyance of 6^th February 1953 from Mr Render to his son would have been to estop him from denying that he had conveyed a legal estate. This would have operated to benefit all the subsequent conveyances deriving from the Conveyance of 6^th February 1953.

ACTUAL OCCUPATION

26. I should state that the only effective challenge to the Applicant’s claim by the Respondent was that the Blue Land has not in fact been occupied for the period of 12 years immediately prior to the making of her application, or at all. In his Skeleton Argument dated 12^th January 2006 and the submissions made by the Respondent’s solicitor (the Respondent was not present at the hearing owing, regrettably, to illness and was represented by his father and his solicitor) was that no fences had been maintained separating the Blue Land from Totteridge House and that the Blue Land is completely overgrown as evidenced by the Applicant’s own photographs. Apparently, on an inspection (made by the Respondent at some stage) there was no evidence whatsoever, as he asserts, that anyone has had access to the Blue Land let alone was any cultivation demonstrated.

 

27. For her part, the Applicant gave evidence as to the usage of the Blue Land by her and her husband for the period of 40 years or so. During the time that her husband was alive (he was a keen gardener) the Blue Land was cultivated as part of 21 Priory Close and there were two apple trees and blackberries growing on it. Further, there used to be a greenhouse which her husband had built and was used for cultivation purposes. Both she and her husband employed and still employ a gardener for the purposes of cultivation, although the area in question has now ecome somewhat wild and the greenhouse has now collapsed. On the Notice Plan she marked the position of the former greenhouse in the north corner of the Blue Land.

 

28. The Applicant also produced a number of photographs in support of her case. These photographs indicate the concrete posts of what had been the fence dividing the southern boundary of the Blue Land from the adjoining property. The Applicant identified the position of three of these posts at points F, G and H on the Notice Plan. Those posts are still in situ, but the rest of the fence has collapsed. The Applicant also relied upon two further photographs which did not form part of the Bundle but had been sent into the court by her under cover of a letter dated 13^th June 2005. The first of these clearly demonstrates a path leading from the land to the north of the Blue Land into the Blue Land itself and the second photograph shows a replacement compost heap built several years ago by her gardener which the Applicant states demonstrates that she is still using the Blue Land.

 

29. I should state that although there was a challenge to the occupation by the Applicant and her late husband of the Blue Land there was no real contest to the these factual assertions made by the Applicant. It was submitted that the burden was on the Applicant to prove that she did indeed occupy the Blue Land for at least the period of 12 years in order to substantiate a claim in adverse possession. The submission made by the Respondent’s solicitor was that the Respondent holds the paper title and it is for the Applicant to prove on the basis of adverse possession that he has been dispossessed of the land. These submission do miss the point as the application is not based upon a claim for adverse possession.

 

THE DECISION

30. The effect of the legal transactions and the evidence can be summarised as follows –

 

(i) The whole of 21 Priory Close (including the Blue Land) is currently in the physical possession of the Applicant and has been either in her possession or that of her late husband, Mr Robert John Painter, since he acquired 21 Priory Close on 23 October 1963;

 

(ii) the legal title to the Blue Land is currently vested in the Respondent and registered under Title No. AGL12085, but is held on a bare trust by him for for the Applicant, and subject to the overriding interest of the Applicant.

 

31. Accordingly the Applicant is entitled to be registered as the proprietor of the Blue Land.

 

32. In such circumstances, I shall make the appropriate Order directing the Land Registry to give effect to the application made by the Applicant for alteration of the register of Title No. AGL 123858 by removal of the Blue Land therefrom being part of the land comprised in that Title.

 

COSTS

33.              I then heard submissions from both sides in relation to the question of costs. I regret to state that I do not agree with the submissions made by the Applicant.

 

34.              The summary of costs set out in the document annexed to the letter dated12th January 2006 refers to both disputes (i.e. REF/2004/1262 and REF/2004/1263). There is no breakdown between the two cases. Further Item 1 relates to professional costs incurred by the Applicant at a stage prior to the references by HM Land Registry to this Office on 9^th December 2004 (received on 13^th December 200). The Applicant was unrepresented here. I therefore reject this head of costs. I also reject the additional claim based upon the difference in value of £100,000 of 21 Priory Close. This jurisdiction cannot award damages for such a loss, and the Applicant should seek advice as to the appropriate forum for such a claim.

 

35.              As to Item 2, this provides a summary of other costs claimed which includes (under (e) a breakdown of the costs of letters sent as set out in Appendix 1. These costs total £8,515 and relate to preparation costs for trial together with disbursements Again I reject the basis of these calculations. As a litigant in person her entitlement to costs is limited to incidental expenditure such as travelling costs. A summary of such entitlement will be provided to the Applicant following this Decision. This can then be the subject of further representations by the Applicant and the Respondent in due course.

 

 

Dated the 3rd day of February 2006

 

 

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY.