REF/2005/1730

 

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

JOHN ANDREW BAWTREE

 

APPLICANT

 

and

 

JOHN EGERTON LEVETT-SCRIVENER

 

RESPONDENT

 

 

 

Property Address: Land at Pine View, The Causeway, Peasenhall

 

Title Number: SK252120 and SK263064

 

 

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

 

 

Sitting at: Ipswich County Court

On: 28 and 29 November 2006

 

 

Applicant Representation: Counsel

Respondent Representation: Counsel

 

 

 

 

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

KEYWORDS – Adverse possession of enclosed garden land

 

Cases referred to

 

Powell v. McFarlane, (1977) 38 P & CR 452

Pye v. Graham, [2003] 1 AC 419

Wretham v. Ross, [2005] EWHC 817 (Ch)

Beaulane Properties Ltd. v. Palmer, [2005] EWCH 817 (Ch)

 

1. For the reasons given below, I shall direct the Chief Land Registrar to give effect to the Applicant’s application dated 17 May 2005 in relation to the land coloured blue on the notice plan at p.35 of the trial bundle.

 

2. Numbers 1 and 2 Pine View, the Causeway, Peasenhall, were originally a single dwelling house. At some point in the past that house was divided into two. It would seem that by 1984, both properties were owned by a Mrs. Prowse, but the smaller of them, 1 Pine View, was let. Behind 2 Pine View was a patio area, with steps leading up to a larger area of garden. This garden area (“the first disputed area”) was not owned by Mrs. Prowse, but was rented by her from the Respondent at a rent of £5 per year. That area was substantially surrounded by trees, shrubs and brambles and other undergrowth, so that it was clearly separated from the rest of the Respondent’s land, and from other adjoining land to the west. The remains of old fencing running through the undergrowth may have marked the boundaries of the rented area, although there was no evidence as to this. Except insofar as the Respondent or his employees might have been able to make their way through the undergrowth, the only access was up the steps from the patio of 2 Pine View.

 

3. There was, and still is, a greenhouse close to the north-west corner of the first disputed area, and a derelict shed close to the southern boundary of that land. There was at least one greengage tree in the area and various shrubs, including broom. Much of the area was grassed.

 

4. The other property, 1 Pine View, had almost no land included. There was a very small patio area at the back, partly enclosed in 1985 by a lean to greenhouse, but the Respondent’s land came right up, or almost right up, to part of the rear wall of that property. It appears that a garden area of roughly the same size as the land used by 2 Pine View, and sharing a common border with it was let at £1 per year by the Respondent to use with 1 Pine View. This garden area was accessed by steps from the patio area to the rear of 1 Pine View. According to a letter dated 19 June 1984 from the Respondent to a Mrs. Jenny, that area had first been let to the family of the current tenant about 60 years previously.

 

5. In 1984, Mrs. Prowse appears to have marketed 1 and 2 Pine View, and both Mrs. Prowse and prospective purchasers made enquiries of the Respondent as to the continuing availability of the garden areas rented from him. His response showed that he was not willing to sell the freehold and that possible development of the adjoining land to the west meant that the garden area behind 2 Pine View might have development potential so that he was not willing to commit himself to any letting until that question was resolved. The properties were eventually sold to a Mr. Hanmer, who decided in 1985 to resell 2 Pine View.

 

 

6. It came to the attention of the Respondent that 2 Pine View was being advertised for sale, and he took steps to ensure that there was no ambiguity in the sale particulars as to the ownership of the garden area owned by him. He made it plain that the first disputed area was not available to let, and the agents confirmed that the sale particulars would be amended to make it clear that the area was not offered with 2 Pine View.

 

7. By 21 May 1985, the Respondent had further secured his position by causing one of his employees to erect a barbed wire fence along the whole length of the boundary between the previously let area and 2 Pine View. It appears that the employee obtained access through the undergrowth at the western end of that boundary, which was not then as thick and impenetrable as it is now.

 

8. The Applicant purchased 2 Pine View, completion taking place in October 1985. He has given evidence that when he purchased the property he had been given the impression by the agents that there would be no problem in his obtaining a lease of the first disputed area, which had been fenced off, although he understood that it belonged to the Respondent. In the light of the difficulties which the agents plainly had in getting the position right on paper (see pp.105-108 of the trial bundle), and the Applicant’s statement as to his understanding expressed by him in his letter to his solicitors dated 8 January 1986, I accept that the Applicant was probably encouraged by the agents to believe that he would be able to come to some arrangement with the Respondent about the first disputed area.

 

9. I have heard evidence from the Applicant and from several of his friends as to his activities over the years in the first disputed area. I am satisfied that all the witnesses were honest and gave their evidence to the best of their recollection, although inevitably, given the time span which their evidence covered, there were a few inaccuracies and it was difficult for them in most cases to give accurate dates.

 

10. I find that, shortly after moving in, in October or early November 1985, the claimant cut the barbed wire fence at the top of the steps and went on to the first disputed area. He had been given a cypress tree as a moving in present and he planted it in the north-eastern part of that area. There was nowhere on his own land for it to be planted. He also planted, in a flower bed in the middle of the area, a bay tree which he had been given when he had been living in Yoxford. Soon after cutting the wire, the Applicant also borrowed a mower or strimmer from friends, Mr. and Mrs. Milburn, to cut the grass. The greenhouse was overgrown and the area around it was cleared and at least one pane of glass replaced. I also find that by that time, or very shortly afterwards, access to the first disputed area was no longer possible except from 2, and possibly 1, Pine View without clearing a path through the undergrowth and brambles.

 

11. By Christmas 1985, the Applicant had spoken on the telephone with the Respondent, who had told him that he definitely did not want him to use the area and was not prepared to consider renting or selling it as he had not decided what to do with it (see pp.47 and 109). By letter dated 17 March 1986 (p.109), the Applicant wrote to the Respondent that he would still like to buy or rent the area if possible. He also offered to prune the apple tree (it was in fact a greengage tree) and the vine in the glasshouse for the Respondent. The Respondent replied by letter dated 25 March 1986 (p.39) that he had not decided what to do with the land but that the Applicant was welcome to prune the apple tree and the vine.

 

12. In fact, the Applicant did far more than prune the tree and the vine, as I have indicated. I find that the initial work was done in the expectation, encouraged by the estate agents, that he would be able to reach agreement with the Respondent as to the purchase or renting of the area. After the unexpected negative response from the Respondent to his telephone enquiry, he became more circumspect as to what he might do on the land, and sought permission to do the pruning. Nevertheless, he continued to use the area as an extension to his garden, planting a Christmas tree in the garden in early 1986. At one point, probably in 1986, with the assistance of a friend, Mr. Milburn, he measured and prepared a plan of the whole of Pine View including what he understood to be the garden areas. In that the plan included 1 Pine View, which he plainly neither owned nor occupied at that time, it is clear that the plan is not intended as any assertion of any rights over the first disputed area, but the measurements indicate where he considered the boundary to come, and in order to make the measurements he and Mr. Milburn went onto that land without any consent from the Respondent.

 

13. In the years from 1986 to 1991, I accept the evidence of the Applicant and his witnesses that he continued to maintain the area, sometimes with the assistance of visiting friends, and that he and his friends would have meals there and play a version of cricket there. The area was cleared, except around the boundary area, of brambles and garden rubbish. Roses and other shrubs, including blackcurrant and gooseberry bushes, were pruned and some shrubs were planted. The hedges around the area were also cut back. The grass was not all cut, but, as Mrs. Milburn put it in giving evidence, there was a gradual process of change, with secret gardens being created in the area. When games were to be played, it would often be necessary to cut grass back first to create a sufficient playing area. In 1987, he would back the barbed wire fence which had been erected in May 1985 and in 1989 he removed it. By March 1991, substantially all the grass had been mown or strimmed as appears from the photographs of that date at pages 54 and 55. The Applicant also grubbed up some broom which had spread in a way he did not want. This was done, probably in the 1980’s or very soon afterwards.

 

14. I am satisfied that during this period, his activities went well beyond those licensed by the Respondent in his letter of 25 March 1986, as indeed the Respondent contends in his Statement of Case.

 

15. In January 1989, the Applicant noticed the Respondent walking in his land just behind the first disputed area. This prompted him to write to the Respondent asking if was thinking of selling it yet, and expressing a wish to buy it. The Respondent replied that he would bear in mind the Applicant’s comments when trying to decide what to do with the land and would contact him once he had reached a decision. I note that the Applicant refers to the first disputed area as “the garden behind my house” and expresses interest in buying “the garden”.

 

16. Later in 1989, after 1 Pine View had become vacant, the Applicant purchased it from Mr. Hanmer. The conveyance is dated 4 October 1989. Although the hearing before me proceeded on the basis that the rear wall of that property was part of the boundary with the land owned by the Respondent, the plan annexed to the conveyance, which was for the purpose of identification only, appears to show the boundary as about 40 to 70 centimetres away from that wall. A similar gap appears in Land Registry plans and there is no evidence before me that the Respondent owned all the land right up to the wall. At some point following that purchase, the Applicant registered his title to 1 and 2 Pine View.

 

17. In September 1990, the Applicant’s then solicitors, Lewis Silkin, wrote to the Respondent explaining that the Applicant had acquired 1 Pine View and asking if the Respondent was prepared to rent to the Applicant the same land he had previously rented to the previous occupant of 1 Pine View. On this occasion, there were negotiations for land to be let, but these broke down because the Respondent’s solicitors demanded that the Applicant should be responsible for the Respondent’s costs incurred during preliminary negotiations. The Applicant refused to be responsible for these costs although he was prepared to pay reasonable costs if the matter proceeded to a tenancy agreement. It is plain from the correspondence that in any event the Respondent did not really want to let any land to the Applicant (p.116) and the negotiations ground to a halt in February 1991. The Applicant sought to renew the negotiations by letter of 25 September 1991 (p.118) but heard nothing more. I accept his evidence that he then decided that he would just occupy the land he wanted without further attempts to negotiate.

 

18. .Indeed, at one point, he attempted to fence in the whole of the garden land which he understood had previously been let to the tenant of 1 Pine View, only to have his attempt disrupted by a neighbour who claimed to have rented the same land from the Respondent. The claims in the witness statements and statutory declarations that the Applicant and Mr. Milburn fenced this land are not accurate. They attempted to do so unsuccessfully due to the neighbour’s interruption and the fencing was never completed.

 

19. The only area now claimed by the Applicant in addition to the garden area enjoyed with 2 Pine View from 1985 is a small area immediately behind 1 Pine View (“the second disputed area”). There was a flight of steps from 1 Pine View to this area, from which access could formerly be obtained to the rest of the land rented by the tenant of 1 Pine View. That access has now been blocked off by shrubs, brambles and other vegetation.

 

20. The Applicant appears to have treated the steps as his own and to have gone onto the strip behind 1 Pine View from 1989. Initially he simply kept down the vegetation so that it was possible to see out of the ground floor windows of 1 Pine View. The property itself was in very poor condition, and the Applicant planned to restore it. In his second statutory declaration the Applicant stated that the lean-to conservatory was demolished in March 1992 when 1 Pine View was restored. The restoration was in two phases, in March 1992 and May 1994. In cross-examination, the Applicant stated that it was probably spring 1992 that the conservatory was demolished and that the void behind 1 Pine View was dug out then. The conservatory had to be demolished first, and I consider that it would have been necessary to dig out the void after than before beginning to restore 1 Pine View because the soil against the wall was causing damp problems. I am satisfied on the balance of probabilities that this work was done, and the retaining wall for the higher land built, before 24 May 1992 and thus more than 12 years before the Respondent registered his title on 24 May 2004. Further, even if the work was not completed by that date, it would have been well under way, so that possession would have been taken of that land well before 24 May 1992.

 

21. Although the excavations and the retaining wall may well have been at least partly on land within the title to 1 Pine View (the question of the exact boundary is not one which was before me or on which I heard any evidence) I am satisfied that in carrying out the work, the Applicant was occupying all the second disputed area. He was not distinguishing in terms of what land he was occupying between the land actually excavated and the whole of the second disputed area.

 

22. I accept that in relation to the second disputed area, the Applicant, after rebuilding the retaining wall, cut the grass on the unexcavated part of the strip, pruned bushes, planted bulbs and repaved the lower level terrace.

 

23. There is a gap in the photographs from 1991 to 1996. An aerial photograph in 1996 shows the front part of the first disputed area to be cut or mown, while the back part appears to consist partly of cut grass which has still to be raked into a pile and disposed of. A significant part of the area is obscured by trees and shrubs and it is not possible to form any clear view of the state of the land beneath. The shed at the back and the roof of the greenhouse are both visible and it is impossible to tell how far access to them has been obstructed or how far they have become overgrown.

 

24. The evidence of the Applicant and his witnesses in relation to this period, which I accept, is that the garden had been looked after as before, although it did periodically become overgrown and need cutting back, and that meals were taken, with and without barbecues, and games played as before. At some point the bay tree, which was suffering where it had been planted in the flower bed, was moved to a new position in front of 2 Pine View, and a willow was planted. Fruit was regularly harvested throughout from the greengage tree to which I have referred and eventually from other greengage trees which were either self-sown or which grew from suckers from the original tree. Soft fruit was also harvested.

 

25. A photograph in 1998 (p.57) also shows a small part of the first disputed area that can be seen to be reasonably well tended. There was a period of about 2 years between about 1998 and 2000 when the area, and in particular the greenhouse, was somewhat neglected, whether because of the Applicant’s work commitments or because he was less interested in it than previously. The greenhouse became overgrown inside and neglected, so that it was difficult to get into and needed clearing. It was eventually cleared inside in 2001 and repaired since when there is no dispute that both it and the whole area have been reasonably well looked after by the Applicant as the photographs at pp.58-64 illustrate. Although some work may have been done outside the greenhouse at the same time as it was cleared inside, I accept the evidence of the Applicant that there was no real problem with access to the greenhouse from the outside.

 

 

The law

26. The Respondent’s land was unregistered until 24 May 2004. It is now common ground that in those circumstances, the Applicant would have acquired a possessory title to any land where the right of the Respondent to bring an action for possession was statute barred by section 15 of the Limitation Act 1980, so that his title was extinguished by section 17 of that Act. The test for this purpose is that set out by the House of Lords in Pye v. Graham, [2003] 1 AC 419. On this reference at least, I am not concerned with any claim under schedule 6 to the Land Registration Act 2002 in respect of a 10 years period expiring after the date of registration. It was accepted by counsel for the Respondent that no point arose under the Human Rights Act 1998 as this was unregistered land, and that once the Land Registration Act 2002 came into force, the artificial construction adopted in Beaulane Properties Ltd. v. Palmer, [2005] EWCH 817 (Ch) would no longer apply.

 

27. It was established in Pye v. Graham that what was required of a person in the position of the Applicant was that he could show, for the requisite period of 12 years, that (1) he was in possession of the land, that is that he had a sufficient degree of single and exclusive physical custody and control of the land and (2) that he had an intention to exercise such custody and control on his own behalf and for his own benefit.

 

28. What acts constitute a sufficient degree of exclusive physical control must depend on the circumstances of the case, in particular the nature of the land and the manner in which land of that kind is commonly used or enjoyed. Broadly, “what must be shown is that the alleged possessor has been dealing with the land in question 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” (per Slade J in Powell v. McFarlane, (1977) 38 P & CR 452, at p.471, cited with approval by Lord Browne-Wilkinson at [2003] 1 AC at p.436).

 

29. The intention that must be shown is “an intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow” (see per Lord Browne-Wilkinson at p.437). As Lord Hope put it at p.446, “The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner... The only intention which has to be demonstrated is an intention to occupy and use the land as one’s own... So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough”. Lord Hutton, at p.447, also considered that no further evidence of intention was normally required where the person had occupied the land and was using it in the way in which an owner would. Equivocal acts in relation to the land would be insufficient, at least by themselves, to establish intention.

 

30. In my judgment, from 1985 the Applicant took and maintained possession of the first disputed area. He cut the barbed wire fence to obtain access, and he planted trees and generally dealt with the land as a garden. It does not appear to me to be relevant that he had nowhere else to plant the trees. Planting trees is far more than a casual trespass and the other activities show an intention to use and occupy the garden even though no tenancy was forthcoming from the Respondent. His removal of the barbed wire, first from across the steps and later from the whole boundary, his planting the trees and his other activities in the area, to which from the beginning, or almost the beginning, the only practical access was through 2 Pine View leads me to conclude that he had taken and retained physical custody and control of the first disputed area.

 

31. It further seems to me that, notwithstanding the submissions to the contrary by counsel for the Respondent, that the Applicant was dealing with the first disputed area as an occupying owner might have been expected to do even while he was seeking to rent or buy the land, just as the Grahams in Pye v. Graham were held by the House of Lords to be doing so in 1984 and 1985. It is clear that in Pye v. Graham, requests continued to be made for Pye to grant a grazing licence in 1984 and 1985, but, as Lord Browne-Wilkinson stated, this did not prevent the Grahams from manifestly intending to assert their possession against Pye so that time ran (see per Lord Browne-Wilkinson at pp.441 and 444).

 

32. The fact that, as counsel for the Respondent pointed out, some of the activities, such as eating meals and playing games, could have been carried out on any empty plot of grassed land, does not mean that they are not activities normally carried out in a garden and that they should not be taken into account with the other activities on the land to see whether the he was in factual possession of the first disputed area, or indeed to see whether he was using that land in the way in which an owner would.

 

33. Nor am I persuaded that the fact that the Applicant was not always working on and using that land meant that he was not in possession of it or that he did not have the requisite intention in relation to it. I have no doubt that he did not go onto the first disputed area in winter very much. That is common in the case of a garden area. I have also no doubt that he did not use the area at other times of the year as intensively as many people might and that he did not cultivate it to the same extent as many might. Nevertheless, I have no doubt that he did regard it as part of his garden and that he occupied and used it throughout appropriately as such. At no time did he go out of possession of the area and at no time did he have any other intention in respect of it that to assert that possession against the world so far as he was able to do so, even if, at times, the area was allowed to become overgrown in parts. His acts of possession were open and apparent.

 

34. The various letters seeking to buy the land and to rent it are conceded by the Applicant to be acknowledgements of title which prevent time from running until after the last acknowledgement in the letter dated 25 September 1991. However, I am satisfied that by the end of September 2003 the Respondent’s cause of action had become stature barred, he had lost his title under section 17 of the Limitation Act 1980, and the Applicant had acquired a possessory title to the area.

 

35. With regard to the second disputed area, I am satisfied that the Applicant took possession of it and at least from the spring of 1992, and in any event prior to 24 May 1992, demonstrated his intention to use the land as his own, and did so. He therefore acquired a possessory title to it, and the Respondent’s title was extinguished, before the paper title was registered on 24 May 2004.

 

36. The Respondent did not give or call any evidence at the hearing. Various explanations were put forward in his Statement of Case as to why he did not do anything over the period between 1991 and 2004. While it is plain that the Respondent and his wife did suffer serious problems during that period, I am unable to follow from the pleading why these should have prevented any action on the Respondent’s part either by himself or by his land agent or employees during the whole of that period. It is unnecessary for me to consider this further, as nothing can turn on it, but I note that in paragraph 7 of the Statement of Case that the Respondent appears to concede, rightly in my judgment, that in the 1990’s the Applicant was in occupation of the land. That occupation was in my judgment open and ought in all the circumstances to have been apparent to the Respondent and his employees had they looked.

 

Costs

37. As the Applicant has succeeded in relation to both disputed areas, he is entitled to an award of costs. He should serve on the Respondent and file with the Adjudicator by 29 January 2007 a schedule of those costs, initially in substantially the same form as in form N260 used for the summary assessment of costs in the High Court. The costs should be limited to costs incurred since the date of the reference to the Adjudicator. The Respondent should serve on the Applicant and file with the Adjudicator his objections to any of the costs claimed by 19 February 2007 and the Applicant may serve on the Respondent and file with the Adjudicator any response to such objections by 5 March 2007. I will then decide what award of costs to make pursuant to rule 42 of the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003.

Dated this 18^th day of December 2006

 

 

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY