REF/2005/1229

 

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

ROBERT HENRY MERRIFIELD

 

APPLICANT

 

and

 

WILFRED SWAN

(Personal representative of Matthew William Carter Swan

 

RESPONDENT

 

 

 

Property Address: Land to the rear of St. Aidans Terrace, Trimdon Station

Title Number: DU266129

 

 

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

 

 

Sitting at: Durham County Court

On: 27 September 2006

 

 

Applicant Representation: Counsel

Respondent Representation: Counsel

 

 

 

 

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

KEYWORDS – possessory title of registered land – necessary intention on the part of the occupier – what amounts to adverse possession under paragraph 1 of Schedule 6 to the Land Registration Act 2002 – effect of a failure by the paper owner to require an application to be dealt with under paragraph 5 of Schedule 6

 

Cases referred to

 

Clowes Developments (UK) Limited v. Walters, [2005] EWHC 669 (Ch)

Beaulane Properties Limited v. Palmer, [2005] 3 WLR 554

 

 

1. On 31 January 1980, Matthew and Edward Swan were registered as joint proprietors of a roughly triangular plot of land of a little over 2 acres described as land and buildings lying to the east of Station Road Deaf Hill. The land had been conveyed to them by a conveyance dated 10 January 1980 by John White and Merelina Ponsonby as trustees of the Wheatley Hill and Wingate Estate for £1700, and had previously been owned by the Coal Board. The northern boundary of the land bordered a lane running behind houses on the south side of St. Aidan’s Terrace, Trimdon. Over the years, parts of the land bordering that lane were either taken over by or rented to occupants of those houses.

 

2. Edward Swan died in 1996 and Matthew Swan died in 2003, but the registered title to the land remains in their names. The Respondent is the personal representative of Matthew Swan, letters of administration to his estate having been granted on 15 December 2003. As the personal representative of the surviving trustee, he is now the trustee of the land and the person entitled to be registered as proprietor of the land in place of Matthew and Edward Swan. No point has been taken as to any bar on the running of any limitation period due to the existence of a trust, and I assume that none arises.

 

Plot A

3. The present dispute concerns three adjoining plots of land occupied by the Applicant, Mr. Merrifield between 1974 and 1992, which I shall refer to as plots A, B and C. By far the largest plot of land (plot A) was taken over by him in 1974, and was fenced by him at that time. Plot A had previously been used as an allotment by Mr. Merrifield’s neighbour, Mr. Iddison. In about 1974, Mr. Iddison had told Mr. Merrifield that he no longer had any use for the land and was giving it up. He asked if Mr. Merrifield was interested in taking it over. Mr. Iddison provided a witness statement for Mr. Swan that he had been paying an annual rent to the Coal Board and that it was in the late 1970’s that he was unable to continue to maintain the land because of his work commitments. He stated that he was approached by Mr. Merrifield who asked if he could take over the land, and Mr. Iddison agreed to this. Mr. Iddison states that he wrote to the Coal “Authority” informing them that he was no longer a tenant and terminated his agreement with them.

 

4. There is other evidence in Mr. Iddison’s witness statement, but he did not attend for cross-examination, and a good deal of that evidence is clearly hearsay. On both counts, I am unable to give any substantial weight to it where it conflicts with that of Mr. Merrifield, and I prefer the evidence of Mr. Merrifield. I also find that the change over took place in 1974 and not later in the 1970’s. I note that although Mr. Iddison states that he wrote to the Coal “Authority” terminating his tenancy, he gives no evidence in his witness statement to suggest that Mr. Merrifield was aware that he was a tenant rather than a squatter. I accept Mr. Merrifield’s evidence that he understood that the land was owned by the Coal Board or the Wheatley Hill Estate, but that he never paid any rent to anybody. He believed that Mr. Iddison did not pay rent to anybody. He described Mr. Iddison as somebody who would just take over the land, but he did not know the basis on which Mr. Iddison was occupying the land. He simply took it over from him. Mr. Merrifield never paid rent to anybody.

 

5. The Respondent’s case originally turned on claims that Mr. Merrifield had paid rent for the land to Matthew Swan and had acknowledged his title to the land. There is no evidence that any rent was ever paid or that he ever acknowledged Matthew Swan’s title to the land. The only document relied on as an acknowledgement of title is a letter from Mr. Merrifield to the Respondent dated 12 September 2003 stating that he had asked Matthew Swan (there referred to as Tony) about a year earlier if he would give him a chance to buy “the land” if he ever considered selling it. The letter again enquires about buying the land adding that “This would safeguard the people who got garages and gardens on the land as some are a bit anxious at the moment”. Many other people are occupying the land bordering the lane, and have garages and gardens there, and it is plain that Mr. Merrifield was writing about the whole of that land. There is nothing in the letter to suggest that he was acknowledging title to the land which he occupied, and in any event on the basis of my findings in this decision, he had already acquired title to all of that land except the smallest plot, plot C.

 

6. In 1974 and 1975 Mr. Merrifield erected sheds on parts of plot A, and in 1992 he also erected a garage on the part of that plot fronting the lane behind St. Aidan’s Terrace. He maintained the fences and in 1986 and 1992 he refenced two of the boundaries. He used the plot openly and indeed to such an extent that complaints have been made on at least one occasion because of the quantity of used lawn mowers and other articles left in the open parts of the plot.

 

7. The argument now put forward on behalf of the Respondent is that although Mr. Merrifield was in possession of Plot A from the 1970’s, he did not have the necessary intention to occupy the property to give rise to a possessory title. This is said to be because he stated that he regarded himself as occupying the land on the same basis as Mr. Iddison, who was in fact a tenant of the Coal Board. Reliance was placed on Clowes Developments (UK) Limited v. Walters, [2005] EWHC 669 (Ch), a decision of Hart J.

 

8. That was a very different case, where the Defendants were occupying as licensees of an associate company of the claimant. An internal transfer of the property from the associate company to the claimant had the effect in law of terminating the license, but nobody realised this and everybody continued to act on the basis that there was a subsisting licence. Hart J stated at paragraph 39 of his judgment that the critical feature present in the case “was the belief on the part of Nigel and Claire that their possession was by virtue of the permission given to Mrs. Walters by the paper owner.” He went on to state at paragraph 40 that it was clear “that a person who is in factual possession and who intends to remain in possession (and to use that factual possession for his own benefit) so long as the true owner continues to permit him to do so does not have the necessary intention to possess for the purpose of starting a period of limitation running in his favour.”

 

9. In the present case, I am unable to infer from Mr. Merrifield’s evidence that he ever regarded himself as a tenant of the Coal Board or anybody else. He never made any attempt to contact the Coal Board or regularise his occupation of the land in any other way, and the Coal Board never contacted him. So far as the Coal Board was concerned he was a trespasser and so far as he was concerned he had no right to be on the land. This is very different from the Clowes case where the occupants of the land believed they were there under a licence. Even on the basis that he regarded himself initially as a tenant in succession to Mr. Iddison, which I do not consider to be the case, if he was a tenant, once 12 years had gone by without his paying rent, then the cause of action is treated as accruing on the date of the last payment of rent by Mr. Iddison, so that 12 years later Mr. Merrifield would have acquired a possessory title.

 

Plot B

10. In 1986, Mr. Merrifield occupied a much smaller adjoining plot (plot B) together with a Mr. Tetley, levelled the ground, put down a concrete base and then erected a timber garage. The arrangement was that Mr. Tetley would use the garage but Mr. Merrifield could use it when Mr. Tetley was not there. They shared the use of the garage on that basis until Mr. Tetley died in the mid-1990’s, since when it has been wholly taken over by Mr. Merrifield. I find that plot B was occupied by Mr. Tetley and Mr. Merrifield until the death of Mr. Tetley, when the plot was taken over by Mr. Merrifield. I am satisfied that both occupied as squatters in whose favour time would run, so that the 12 years limitation period would have expired in about 1998, before either the Land Registration Act 2002 or the Human Rights Act 1998 came into force. I find, therefore, that Mr. Merrifield is entitled to be registered with a possessory title to Plot B.

 

Plot C

11. In 1992 Mr. Merrifield occupied a further and even smaller plot (plot C) adjoining plot B and placed a container on it to hold a motor bike which has remained there ever since. I find that Mr. Merrifield was occupying that plot on the same basis as plot B, but that the 12 years limitation period had not expired when the Land Registration Act 2002 came into force. Under section 96 of that Act, the period of limitation under section 15 of the Limitation Act 1980 could no longer run. Mr. Merrifield could no longer, therefore, acquire a title by adverse possession except under the provisions of Schedule 6 to that Act. Mr. Merrifield applied to be registered with a possessory title by an application dated 1 December 2003 and received by the Land Registry on the following day. For reasons which are not explained, it was only by a notice dated 12 January 2005 that notice of this application was served on Matthew Swan (by then already deceased).

 

12. Although I drew counsels’ attention at the hearing to the provisions of Schedule 6 to the Land Registration Act 2002 as applying to this part of the claim, and it was accepted that they would apply to the claim in respect of Plot C, no argument was addressed to me as to how they would apply.

 

13. The notice enclosed a form NAP for objections, which contained provision for the objector to require the registrar to deal with the application under Schedule 6, paragraph 5 to the Land Registration Act 2002 and separate provision for an objector to object to the registration on grounds stated on the form. The Respondent’s solicitors do not appear to have returned the form, but instead provided a witness statement objecting to the registration on the ground that the Applicant was allowed to use the land by Matthew Swan and had acknowledged his title.

 

14. Under paragraph 1(1) of Schedule 6 to the Land Registration Act 2002 a person is entitled to apply to be registered as the proprietor of a registered estate in land if he has been in adverse possession for 10 years ending on the date of the application. The notice given to the Respondent, or rather to Matthew Swan, by the Registrar was given under paragraph 2 of that Schedule. A person given notice under paragraph 2 may require that the application is dealt with under paragraph 5 (see paragraph 3(1)). By paragraph 3(2) that notice should be given with the period allowed by the rules (65 business days – see rule 189 of the Land Registration Rules 2003). However, if an application under paragraph 1 is not required to be dealt with under paragraph 5, the applicant is entitled to be registered as the new proprietor of the estate (paragraph 4). That depends, of course, on his establishing his claim to have been in adverse possession for 10 years.

 

15. On the face of it, therefore, the application should not be dealt with under paragraph 5 of the Schedule 6 to the 2002 Act. This is not entirely satisfactory, as the original statutory declaration by Mr. Merrifield was to the effect that he had occupied plot C since 1990, so that the 12 years limitation period would have expired before the 2002 Act came into force and, if proved, the provisions of Schedule 6 would not apply. It is hardly surprising that the solicitors for the Respondent did not seek to apply paragraph 5 as that paragraph would have had no application if Mr. Merrifield had made out his case that he was in occupation of Plot C by 1990. I also note that the requirement of rule 190 of the Land Registration Rules 2003 that a notice under paragraph 3(2) of Schedule 6 to the 2002 Act must be in form NAP appears to have been ignored both by the Respondent and by the Land Registry.

 

16. On the assumption, without deciding, that the Respondent cannot now rely on paragraph 5 of Schedule 6, the issue still arises whether Mr. Merrifield was in adverse possession of Plot C within the meaning of paragraph 1(1) of Schedule 6 to the 2002 Act. Under paragraph 11(1) of that Schedule, a person is in adverse possession of an estate in land for this purpose if, but for section 96, a period of limitation under section 15 of the Limitation Act 1980 would run in his favour in relation to the estate. It was held in Beaulane Properties Limited v. Palmer, [2005] 3 WLR 554 that, from the coming into force of the Human Rights Act 1998, adverse possession had to be inconsistent with the future use of the land by the true owner.

 

17. All that Mr. Merrifield has done was to place a large removable container on Plot C and use it to keep a motor bike. Even if this would have been sufficient to amount to adverse possession prior to 2000, when the Human Rights Act came into force, it is not sufficient now. I find that Mr. Merrifield has not established a possessory title to plot C and that his application in that respect should be rejected by the Chief Land Registrar.

 

Conclusion

18. I shall direct the Chief Land Registrar to give effect to Mr. Merrifield’s application received on 2 December 2003 insofar as it relates to Plots A and B and to refuse it insofar as it relates to Plot C.

 

19. Mr. Merrifield has been successful on this reference except in relation to Plot C, which is not only by far the smallest of the three plots, but also has involved the least argument and evidence. In all the circumstances, the Respondent, Wilfred Swan, is to pay 90 per cent of Mr. Merrifield’s costs of this reference to be assessed on the standard basis. Costs of this reference covers only costs incurred from 2 August 2005 onwards.

 

20. I direct that Mr. Merrifield is to serve on the Respondent and file with the Adjudicator by 10 November 2006 a statement of his costs so far as possible in the form N260 used for the summary assessment of costs in the High Court. A copy can also be found in the Supreme Court Costs Office’s “Guide to the Summary Assessment of Costs” 2005 edition. Any objection to any costs so claimed must be served by the Respondent on Mr. Merrifield and filed with the Adjudicator by 1 December 2006 and any reply to those objections must be served by Mr. Merrifield and filed with the Adjudicator by 23 December 2006. I will then either summarily assess those costs or direct that they be subject to a detailed assessment.

 

 

Dated this 13^th day of October 2006

 

 

 

By Order of The Adjudicator to HM Land Registry