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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Joseph George Arnold and Wendy Elizabeth Arnold v Roughton Land Trust (1) Mr Anthony Musker and Mrs Jenny Musker (2) (Practice and Procedure : Adding and substituting parties) [2007] EWLandRA 2006_0865 (05 November 2007)
URL: http://www.bailii.org/ew/cases/EWLandRA/2007/2006_0865.html
Cite as: [2007] EWLandRA 2006_865, [2007] EWLandRA 2006_0865
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The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002
IN the matter of a reference from hm land registry
BETWEEN
Joseph George Arnold and Wendy Elizabeth Arnold
APPLICANTS
and
Mr Anthony Musker and Mrs Jenny Musker (2)
RESPONDENTS
Property Address: Garden Cottage, Heath Lane, Roughton
Before: Mr Cousins sitting as Adjudicator to HM Land Registry
Sitting at: Norwich Employment Appeals Tribunal
Applicant Representation: In person
First Respondent’s Representation: Mr Richard Jordan, Chairman.
Second Respondent’s Representation: No appearance
DECISION
KEYWORDS: Adverse possession – locus standi of a person not having an interest in the land – adding new parties – holding a substantive hearing in absence of a party – Limitation Act 1980 Section 15; Schedule 1, paragraphs 1 and 8 - Land Registration Act 2002 Schedule 4; Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003 Rule 2; Rule 24 (1)(a); Part 5, Rule 33(1); Rule 38; Rule 38(1)(a)(i);
Cases referred to: Pilling Parish Council v Wells, Preston Combined Court Centre 14th March 2007; J A Pye (Oxford) v Graham [2003] AC 419; Powell v McFarlane (1977) 38 P and CR 452
THE APPLICATION
1. On 28th November 2005 Mr Joseph George Arnold and Mrs Wendy Elizabeth Arnold (“the Applicants”) made an Application at HM Land Registry for first registration with absolute freehold title of the Garden Cottage, Heath Lane, Roughton, Norfolk NR11 8NB (“the Property”). Included in the Application is the land in dispute. This comprises a shed (“the Shed”) of which the Applicants claim ownership by dint of a claim for adverse possession. This is evidenced by a Statutory Declaration made by Mr Eric George Allen. It is supported by a letter from him dated 19th February 2006 this having been sent in response to the objection made by the Roughton Land Trust (“the Trust”).
2. The Case Summary dated 21st June 2006 refers to the objector as being the Trust, their representative being described as Mr A Musker who lives in Roughton. Mr Musker was at all material times a trustee and at one stage was also the Treasurer of the Trust. Also involved in the manifestation of the objection is Mrs Jenny Musker, his wife, who is and was a trustee, and at various stages has been the Chairman and the Secretary to the Trust.
3. Some complication has developed with regard to the status of the objection made on behalf of the Trust and the identity of the trustees of the Trust (“the Trustees”) and it is necessary to have some regard to the history of the matter.
4. The assertion made by or on behalf of the Trust is that the Shed lies within land owned by the Trust and within caution title number NK239830. The grounds of the objection are that the Trust hold the paper title to the Shed and other land surrounding it and that the Shed itself, together with other surrounding land, was in fact rented from the Trust by predecessors in title to the Applicants.
5. On 5th October 2007 I heard the Application at the hearing centre in Norwich. The Site View in Roughton had preceded the hearing the day before. I shall deal with these events in greater detail below.
THE BACKGROUND
The Parties
6. As I have stated above, the Case Summary describes the objectors as being the Trust and their representative is described as Mr A Musker. Very recently a copy of form 737A dated 4th May 2006 was forwarded to this Office and this document bears the signatures of the Trustees, namely, Mr Musker, Mr Colin Harrold, Ms Susan Bloor, and Mr Peter Crouch (the then Chairman of the Trust), together with Mrs Musker who, as I said, was also the Secretary to the Trust. This document is dated 16th May 2006 and as a result the dispute was referred by HM Land Registry on 22nd June 2006 to this Office. I have joined Mr Musker into these proceedings as Second Respondent for reasons which I shall set out, below.
The Trust and the Trustees
7. The Trust has the benefit of a caution dated 3rd November 1999 made in favour of Mrs Musker, she then being a Trustee. This registration of the caution title was made prior to confirmation of the Trust being established by the Charity Commissioners for England and Wales. The Scheme governing the charities formerly known as the Recreation Ground, the Poors Allotment and the Donkey Allotment was established on 8th August 2000 and thereafter known as the Roughton Charitable Land Trust. It is registered at the Charity Commission under case number 60634. The Scheme itself contains the usual provisions with regard to the powers of the trustees, the purpose of the Trust being to let the land as allotments and identified in part 2 of the Schedule to the Scheme. The Shed forms part of the land known as the Donkey Allotment.
8. I have not seen any other documentation relating to the Trust but during the course of the hearing of the Application it was said that its constitution provides for five trustees who serve for four years on a rotational basis the relevant month for retirement being December in each year. Thus, as I understand it, until November 2006 when the Trust held its yearly meeting, the five Trustees comprised Mr and Mrs Musker, Mr Harrold, Ms Bloor and Mr Crouch, Mrs Musker also being the Chairman and Mr Musker being the Treasurer. At the meeting in November 2006 Mr Musker continued as trustee and Treasurer, Mr Crouch was apparently appointed Chairman, and Mr Harrold and Ms Bloor also continued as Trustees. Subsequently Mrs Musker’s term as trustee terminated on 6th December 2006 by effluxion of time she by then having served the period of four years. Thus between December 2006 and September 2007 the trust only comprised 4 trustees, a vacancy having been caused by Mrs Musker’s term expiring which was not filled. It must be stated, however, that it has been manifested subsequently that there was no vacancy as Mrs Musker still remained a trustee and this was the subject of some dispute at one of the recent meetings of the Trustees.
9. Thus, form 737A, to which I have referred above, was signed by the then serving Trustees. It was acknowledged by Mr Jordan during the course of the hearing that all the trustees were aware and supported the original objection to the Application made by the Applicants. Since then, however, what seems to have happened (as relayed to me by Mr Jordan during the hearing) is that Mr Musker took action on behalf of the Trust without keeping the other trustees informed. It will be noted from the correspondence that over the months following the reference to this Office a considerable amount of documentation emanated from Mr Musker including the Statement of Case served by him on behalf of the Trust together with further evidence and documentation which describes variously the address for service as being Mr Musker’s address, and Mr Musker being the “representative” of the Trust. On one document dated 5th January 2006 and described as the “Notice of Objection” Mr Musker described himself as the “legal adviser”.
10. In his letter dated 27th April 2007 to the Office Mr Musker (describing himself as the representative of the Trust) asserted that the objection was made in consultation with and on behalf of the Trust and confirmed in writing by all of the five members of the Trust in form 737A. The remainder of this letter concerns comments made with regard to the costs position to which I need not refer in this Decision.
Meeting of Trustees on 18th September 2007
11. The first meeting (described as a “special meeting”) of the Trustees since November 2006 took place on 18th September 2007. Minutes of this meeting have been supplied to me since the hearing of the application on 5th October 2007. A Representative of the Charity Commission attended. After some discussion during the meeting Mr Jordan was appointed a trustee of the Trust in the place of Mrs Musker. Mr Crouch was elected Chairman and Mrs Bloor Secretary. Thus, apart from Mr Jordan being appointed a trustee, the identity of the Trustees remained the same, namely Mr Musker, Mr Harrold, Mrs Bloor, and Mr Crouch. It was also resolved that the Trustees together would take collective responsibility for the role of Treasurer until a person be appointed to that position. The reason for this is that, as the minutes reveal, Mr and Mrs Musker left the meeting before it had concluded. Further, as I was informed by Mr Jordan during the course of the hearing of the Application on 5th October 2007, immediately after the meeting Mr Musker resigned as Treasurer. Subsequent to the hearing I received written notification from Mr Jordan confirming Mr Musker’s resignation as Treasurer of the Trust dated 29th September 2007.
12. It also transpired at this meeting that, without the knowledge or consent of the other Trustees, Mr Musker instructed a local solicitor (Mr Nicholas Hancox) to advise on various matters relating to the objection and was paid for these services by Mr Musker in his capacity as Treasurer out of charity funds. This was apparently effected without any authorisation from the other Trustees. The amount involved is £1,336.05. Mr Crouch states in his letter that the Trustees had not authorised Mr Musker to pursue costs against the Applicants. It was under cover of the letter dated 19th September 2007 that the invoice for the legal charges incurred by Mr Musker was enclosed.
13. Following this meeting this Office received a letter dated 19th September 2007 from Mr Crouch in his capacity as Chairman which made a number of points with regard to the Trustees’ knowledge of the events surrounding the case. In this letter he stated that he and his fellow Trustees had only just learnt that a site visit was due to take place on 4th October 2007 and that Mr Musker had arranged this on his own without keeping any of the other Trustees informed. In the second paragraph of this letter Mr Crouch stated that the Trustees would be happy to have the facts judged and decided as long as there would be no costs implication. Apparently Mr Musker had informed them of the fact that there would be no liability for costs.
14. In response to that letter a letter dated 25th September 2007 was sent by this Office to Mr Musker with a copy enclosed to Mr Crouch. In this letter it was explained that if the Applicants were successful then it is likely that if they applied for costs an order would be made against the Trust as the other party. Reference was made in this letter to the fact that litigants in person can only recover their out of pocket expenses, but that could include the costs of any legal advice obtained in connection with the proceedings before the Adjudicator.
15. This letter then went on to state that it was not entirely clear from Mr Musker’s letter whether the position was that the Trust authorised the objection dated 6th January 2006 subject to an agreement as to indemnification with the Trust against any costs and expenses involved, or whether Mr and Musker acted without the consent of any other Trustees. Mr Musker was also informed that if an objection was made in a personal capacity, then it could still be considered by the Adjudicator.
Meeting of the Parish Council on 3rd October 2007
16. On 3rd October 2007 there was a Parish Council meeting when the position of the Trust and the Trustees was considered. As a result a majority of the trustees decided by motion to withdraw the objection to the Application by the Applicants and seek a compromise solution. This motion was carried by a majority vote of 3 to 1 with one abstention (Mr Harrold).
17. Late in the evening on 3rd October 2007 this Office received an e-mail from Mr Musker stating that he had attended the Trust meeting that evening. He said that the composition of the Trustees had changed and that he must inform the Adjudicator that the other trustees for their own reasons had decided that the objection by the Trust should be withdrawn.
18. Mr Musker then made reference to the letter from this Office dated 25th September 2007 and that in response he had stated that “the objection was made in consultation with and on behalf of the charity”. This was in response to the point made that the status of the original objection was unclear and that if it was made in a personal capacity by Mr and Mrs Musker it could still be considered.
19. Mr Musker then went on to state that he disagreed with the decision by some of the trustees to withdraw the “endorsement” of the objection, and that he believes that both as a current trustee and as a future beneficiary of the charity the objection should still be heard. He firmly believed that the Shed does not belong to the Applicants but belongs to the Trust. He then stated that at that stage no costs had been claimed by the Applicants and he asked for guidance as to whether the case could proceed from that point in time on the basis that no costs had been claimed by the Applicants. Mr Musker then went on to say that if it was not possible to proceed on the basis that no costs had been claimed then he wished to register his objection to the Applicants being registered as the owner of the Shed. He then stated in the following terms
“I wish this objection to be registered as a current trustee of the charity and as a beneficiary of the charity. I also wish to state that I reserve the right to take this matter up at a later date, when there is a different group of trustees, and to challenge any registration that has been made giving ownership of the Shed to the Applicants…”
20. Thus, it appeared at that stage that despite the fact that a majority of the Trustees had withdrawn their objections to the Applicants being registered as the proprietors of the Shed for his part Mr Musker wished to continue to object as a trustee and as a beneficiary of the Trust.
The Site View
21. As an objection still continued to be maintained to the registration of the Applicants as the proprietors of the Shed I decided to still hold the site view on 5th October 2007. This duly occurred in the presence of the Applicants, Mr Allen, Mr Jordan, and Mr Musker. At the site view Mr Jordan reiterated the point made previously by the Trustees on behalf of the Trust that the objection to the Application had been withdrawn. Mr Musker for his part stated that he wished to continue to object as an individual trustee.
22. On the following day, being the day of the hearing, an e-mail was received from Mr Musker referring to the site view the previous day and the circumstances of what had been said to the effect that he could still proceed on an individual basis. He then stated that following the site view he had sought advice which was that as a trustee of the charity he could not go against the decision of the majority of the other trustees and could not allow the hearing to go ahead on the basis of his objection, which must be withdrawn. Mr Musker, however, then went on to say that having spoken to the Land Registry he had been informed that if the Shed was registered to the Applicants “which is not a foregone conclusion” an objection could be made at a later date by anyone who has an interest in the matter “…and of course anyone who is not a trustee of the charity”.
23. Having regard to the fact that by the stage that the e-mail was received at the hearing centre from the Office in London shortly before 10.30am that morning and the fact that the Applicants, their witness, Mr Allen and Mr Jordan on behalf of the Trust were all present, and also having regard to the fact that the notification from Mr Musker was somewhat ambivalent, I decided to proceed with the hearing and in particular to investigate the circumstances of the status of the Trustees, and Mr Musker and the position of the Trust. I shall deal with what transpired at the hearing below.
Events subsequent to the hearing
24. During the course of the hearing a further e-mail dated 5th October 2007 was received from Mr Musker by the Office, the time of delivery being 11.16am. This e-mail was not forwarded to the hearing centre. In this Mr Musker reiterated the point that as a trustee he was bound by the policy decision of the body of Trustees and there could be no objection presented by himself. He said that his position was compromised. He went on to say, however, that he did not agree that the policy decision of the Trustees to withdraw was correct and that “… the Shed and land on which it stands belongs to the charity (not to the trustee body).” He then went to state that he re-affirmed his earlier e-mail comment that he reserved his right as someone with “…an interest e.g. a beneficiary for whom the land should be held in trust…” to challenge the registration of the Applicants as owners of the Shed at some future stage.
25. Following this on 8th October 2007 a letter dated 6th October 2007 was sent to this Office as an attachment to an e-mail by Mr Musker. In this he refers to the two e-mails dated 5th October 2007 and stating that he had been advised not to attend the hearing on 5th October on two grounds. First, as a trustee he could not go against the decision of the trustee body not to present the case on behalf of the Trust. Secondly if he had presented the case as an individual trustee he would have been held to be a “rogue trustee” and may have possibly placed himself in a position where he would have been held personally liable to pay the costs expended by the Trust.
26. Mr Musker, however, then reiterated the point set out in his previous e-mails dated 5th October 2007 that he maintained his objection to the registration of the Applicants as the owners of the Shed on the basis of being a current trustee of the charity and objected on behalf of charity. He then stated that “the trustee body is not the owner.” He then said that it was unfortunate that he was prevented from attending the hearing and so unable to present a case against the Applicants or to challenge their case and their claims or to question their evidence.
27. Mr Musker’s position has been more recently confirmed in an e-mail dated 17th October 2007 sent to this Office by Mr Musker. This e-mail is in the following terms:
“I have been informed by the Land Registry today that as I still object as a trustee, the objection under 2006/0856 to the Applicant being registered as the owner of the land under NK333105 will not be counted as having been withdrawn.
It is unfortunate that I have only just been made aware of this, as I was prevented from attending the hearing on 5th October, and from presenting a case against the Applicant and challenging their information and claims at the hearing.
Should it be that a decision has been made to identify the applicant as the owner, under NK333I05, I confirm my previous objection to this made in emails to you from 5th October onwards.
I also confirm that there is now further information and details to support my objection, which arise following the serving of the late papers from the applicant on 4th October 2007.”
28. Somewhat bizarrely, however, on 17th October 2007 this Office received an e-mail from Mr Jordan to the effect that at a meeting held the night before Mr Musker in writing tendered his resignation as a trustee of the Trust which was unanimously accepted by the other trustees. This does not seem to accord with the information provided by Mr Musker in his e-mail of the same date, referred to above.
PROCEDURAL ASPECTS
29. In such convoluted circumstances, it is necessary for me to make the appropriate decision as how to proceed in this matter. There are two aspects to this. The first is to decide as to the status of Mr and Mrs Musker in the case and whether or not they have continued to maintain an objection to the registration of the Applicants as the proprietors of the Shed. Secondly, whether in the circumstances I am able to make an appropriate substantive decision in the case having regard to the fact that Mr Musker failed to appear at the hearing.
As to the locus standi of Mr and Mrs Musker
30. As I have outlined above, Mr Musker’s position has been somewhat equivocal. The position is, however, that both Mr and Mrs Musker were trustees of the Trust. In the case of Mr Musker he seems to have resigned as such on 16th October, 2007 but this is at variance with his more recent manifested position. In the case of Mrs Musker, her term seems to have expired although again this was in dispute. Since 18th September 2007 Mr Musker no longer remains its Treasurer. As an original signatory to form 737A, along with the other Trustees he continues to remain an objector to the Application for first registration made by the Applicants unless and until that objection is withdrawn. By letter dated 4th October 2007 the other trustees withdrew their objection to the Application the result of which is that in principle the Applicants can be registered as the freehold proprietors of the Shed. Mr Musker, however, continued to object in his capacity as a trustee until his apparent resignation as such on 16th October 2007. As an individual trustee he could continue to maintain his objection to the Application – for it is the individual trustees who objected to the Application, not the Trust itself. The trustees of the Trust for the time being have a representative capacity in respect of the Trust. Mr Musker has also objected on the basis that he is a beneficiary of the Trust.
31. I appreciate that the equivocation demonstrated by Mr Musker as to whether or not he wished to withdraw his (and presumably his wife’s) objection, on the basis that he contended that he was bound by the policy decision of the body of Trustees, but more recently he has continued to maintain his objection to the registration of the Applicants as the owners of the Shed in his capacity as a trustee and as a future beneficiary.
32. In my judgment, therefore, despite an apparent attempt at one stage to withdraw his objection, it is clear that Mr Musker continues to object to the registration of the Applicants as the proprietors of the Shed. He has also reserved his position to take up such objection at a later stage. In short, he maintains the position that he has an interest in the outcome of the case.
33. Thus, the case remained on foot and a decision was and is required as to whether or not the Applicants are correct in their contention that they and their predecessors in title have acquired ownership of the Shed by dint of adverse possession for the requisite period of time.
34. I should state that even if Mr Musker does not have an interest, as such, it would still be possible for him to object. It is not necessary for the applicant or the objector to be asserting a claim to the title to or a right to, or an interest in, the land in question in order to apply for an alteration in the register, or to object to an application being made for alteration. (see the decision in Pilling Parish Council v Wells, Preston Combined Court Centre 14th March 2007 - to be found on the ALR case website). In other words, there is nothing contained in the provisions of the Land Registration Act 2002, and more particularly in Schedule 4 thereto, which provides any support for the argument that the range of parties who could seek alteration or rectification of the register, or indeed to maintain an objection to an application for first registration, is somehow limited to a person who has, in effect, a claim to an interest in the land in question.
35. Accordingly, pursuant to Rule 24 (1)(a) of the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003 (“the Rules”) at the hearing I made a direction, which I now confirm, that Mr and Mrs Musker should be added as new parties to the proceedings as Second Respondents. This is on the basis that Mr Musker has manifested to this court that he interested in the proceedings in his personal capacity, and as a future beneficiary of the Trust and as a trustee of the Trust and in such circumstances it is desirable so to do. As Mrs Musker has also shown an interest in the proceedings, I also consider that it is desirable to add her into the proceedings.
As to the substantive decision
36. This being so, the question then arises as to whether I can, in the somewhat unusual circumstances of this case, proceed to make a substantive decision in the absence of a party who is still maintaining an objection to the Application for first registration of the Shed both on his own behalf and apparently on behalf of his wife.
37. In this regard it is necessary to have reference to the Rules, and in particular to Part 5, Rule 33(1). This provides for a presumption that a substantive decision, as defined by Rule 2, is made following a hearing. As I held a hearing of the Application on 5th October 2007, following a site view on 4th October 2007, the provisions relating to making a substantive decision without a hearing under that rule do not apply.
38. It is then necessary to turn to Rule 38 which deals with the question of the absence of parties at any hearing. This rule provides as follows:-
“(1) If any party does not attend and is not represented at any hearing of which notice has been served on him in accordance with [Rule 34], the Adjudicator -
(a) may proceed with the hearing and reach a substantive decision in that party’s absence if -
(i) the Adjudicator is not satisfied that any reasons given for the absence are justified;
(ii) the absent party consents; or
(iii) it would be unjust to adjourn the hearing or
(b) must otherwise adjourn the hearing.
(2) …”
39. I have already made reference above to the manifested position of Mr Musker in that at the site view he stated that he wished to continue to object in his capacity as an individual trustee, but subsequently in the e-mail sent on the morning of 5th October 2007, following advice, he could not allow the hearing to go ahead and wished to withdraw it. This was on the basis that he could not go against the decision of the majority of the charity trustees. In the second e-mail of that date he reiterated the position that he was bound by the policy decision of the body of trustees and that there could be no objection presented by himself and his position was therefore compromised. Subsequent to the hearing he stated that he had been advised not attend the hearing.
40. I considered the position as relayed to me by Mr Musker at the Site View and subsequently in writing and I also heard representations from the Applicants. In the circumstances I decided that the hearing must proceed in the absence of Mr Musker on the basis that I was not satisfied that the reasons given for his absence were justified under Rule 38(1)(a)(i). Mr Musker could have attended the hearing but decided not to. Indeed had indicated at the site view that he would attend.
41. The Applicants and Mr Musker have supplied a number of documents in support of each case. I had regard to such documentation prior to the site view and also during the hearing on 5th October 2007. It is on the basis of that documentation that I reach the conclusions to which I shall refer below.
THE PARTIES’ CASES
The Applicants’ Case
42. The crux of the Applicants’ case is that they and/or their predecessors in title have been in possession of the Shed since at least 1918 and as a consequence have secured possessory title to it based on a minimum of twelve years’ adverse possession. They contend that they can therefore defeat the Trust’s paper title to the Shed and to the land upon which it is situated.
43. The root of their claim for adverse possession is set out in the Statutory Declaration of Mr Eric George Allen declared on 3rd November 2005, he being the son of the late Alberta Claudine Allen who died on 1st April 2005. Mr Allen attended the hearing and made a number of representations based upon his direct knowledge of the events. In paragraph 4 of his Statutory Declaration he states that in addition to the land shown edged red on the plan exhibited to the Declaration his late mother was in full free and undisturbed possession of what he describes as the Cart Shed, which is the Shed the subject matter of the Application, and which is shown tinted blue on the plan. To the best of his knowledge and belief the Shed was erected at the same time as the Garden Cottage which was purchased by a Mrs Elizabeth Marling, who was his late father’s aunt. When Mrs Marling died in 1943 Mr Allen’s late father inherited the Garden Cottage and lived there until his death in 1956. In that year his late mother became the owner of Garden Cottage and occupied it until her death in 2005. So far as Mr Allen was aware his late mother, and before her his late father, occupied the Shed and never paid any rent for it or the land upon which it stands. She used it as a store for her bicycle and for wood and coal and she maintained it as and when necessary over the years.
44. The Land Registry were not fully satisfied with the contents of the Statutory Declaration and in a letter dated 27th February 2006 a requisition was made whereby answers to some questions were sought on the contents of the Statutory Declaration of Mr Allen and a letter dated 19th February 2006 from Mr Allen. I do not appear to have a copy of any response made by Mr Allen to that request, but the Land Registry was sufficiently satisfied that there was a dispute between the parties so as to refer the case to this Office.
45. Subsequently the parties presented their Statements of Case and eventually the Applicants prepared the Court Bundle. It is necessary to refer to a number of documents in order to decide on the merits of the Applicants’ Application.
The documentary evidence
46. The dates of the construction of the Shed and the Garden Cottage are uncertain and are in dispute. The dates are variously described as 1818, between 1838 and 1868 (in respect of Garden Cottage) and 1850 to 1868 in respect of the Shed, and also 1918 in respect of both. What seems reasonably clear is that by 1918 the Garden Cottage existed. This can be seen from a copy of parts of an Indenture dated 17th December 1918 forming part of the documentation in the case. This was made between Mr Joseph William Hastings and Mrs Elizabeth Sophia Marling whereby “ALL THAT cottage with the outbuildings yard and garden thereto belonging and now occupied therewith situate in Roughton…. together with the appurtenances and secondly ALL THAT piece of garden ground situate at Roughton aforesaid… for the purposes of identification only delineated on the plan drawn thereon respectively edged with the colours pink and green were conveyed to Elizabeth Sophia Marling in fee simple”. The land coloured pink in fact appears on the plan contained in the Applicants’ Statement of Case as coloured red. The land coloured green has not been identified in the copy of the plan contained in the documentation, but I assume that it is irrelevant to the issue before me. What is clear, however, is that the Shed itself, which is situate across Heath Lane immediately opposite Garden Cottage, was not included in this conveyance – a point taken by the Land Registry in their letter dated 27th February 2006. Also forming part of the original Indenture is an Indenture made on 16th November 1925 which was made for the purpose of rectifying an omission in that a parcel of land coloured yellow on the plan drawn thereon together with a fence on the eastern side thereof had not been included as part of the conveyance to Elizabeth Sophia Marling. The conveyance of that piece of land is not of relevance to the present case.
47. Although it apparently is disputed that Garden Cottage and the Shed were constructed at a stage prior to 1918 if regard is had to documents numbered 3 (uncoloured) of the Inclosure Award of Roughton Heath dated 26th August 1869 held by the Norwich Records Office and document numbered RLT5A (which are colour copies of an extract from it). From this it appears that Garden Cottage, or a predecessor building, did exist within parcel number 139. On the other side of the road and situate in parcel number 28 there is shown a rectangular building which appears to be in the vicinity of the current Shed. It is instructive to note (and this is a point taken by Mr Musker) that in the vicinity of the building (which may or may not be on precisely the same site as the Shed) there is marked on its northern flank a brace between the land comprising parcel number 28 and the building itself. This symbol normally denotes that the land is in common ownership and represents, in effect, two hooks connected back to back connoting that the two holdings are held together.
48. A later map which could be construed, however, as indicating that the building (which may or may not be in the same position as the Shed) and the land to the north were not in common ownership can be seen in a copy extract from what is described in the List of Documents as “ownership map and charity lands in Roughton” of 1869 again held at the Norwich Records Office. This shows the name “James Kettle” straddling across from what probably became Garden Cottage to the building on the north side of the roadway and parcel number 28, the latter being hatched in red. I do not consider, however, that this takes the matter very much further in that the fact that the name “James Kettle” lies between and straddles the roadway and parcel number 28 may indicate that all three parcels including the building which may be on the site of the Shed might have all been in the same ownership at that stage.
49. I do not consider that the documentary evidence relied upon, in particular by Mr Musker, demonstrates anything other than a building seems to have existed on the same site as Garden Cottage, and also a building seems to have existed on or in the vicinity of the Shed, possibly for a century and a half, and that Garden Cottage itself in its present configuration has existed at least since 1918.
The payment of rent issue
50. The main thrust of Mr Musker’s case is that there is evidence that rent was paid by the Applicants’ predecessors in title to the Trust in respect of the Donkey Allotment (parcel number 28 on the Inclosure Award map of 1869). This it is contended by Mr Musker incorporated the Shed and the land upon which it stood. It is necessary to deal with this assertion by having regard to the available evidence.
51. The Applicants’ case is that the Donkey Allotment was first rented to the late Mr and Mrs Allen in 1952, but the land rented did not include the Shed which had been in continuous use by the family for many decades. It is contended that page 13 of the Inclosure Award of 1869 (described as document 4) states that, inter alia, parcel number 28 was rented, but this, it is asserted, does not include the Shed (or its predecessor building). For his part Mr Musker asserts that the rent paid for the Donkey Allotment (parcel number 28) included the Shed and the land upon which it stands. I do not consider that this evidence takes the matter very far as it is based upon historical uncertainty as to precisely what was or was not in existence 150 years ago. .
52. Turning to more recent history, the Trust’s Statement of Case prepared by Mr Musker asserts that the tenancy of Mr and Mrs Allen of parcel number 28 commenced in 1950. In his letter dated 19th February 2006 Mr Allen states that rent started to be paid in 1952.
53. As to the documentary evidence relating to the payment of rent and whether it included or excluded payment for the Shed, apparently, according to Mr Musker, the Parish Council lost its records in a fire in the second half of the twentieth century. The more recent rent books from 1963, however, are still preserved. He says that these demonstrate that there were several changes to the rental agreement between the Trust and the late Mrs Allen over a period of time. He makes reference to pages from the Roughton Parish Council rent book for the years 1963, 1971 and 1982 and referred to as document number RLT10, RLT11, and RLT12. Document number RLT13 is apparently a report (“the Report”) on the lands let/owned by Roughton Parish Council dated 10th June 1993 and the reference on page 2 of that document refers to land being let to Mrs Allen as parcel number 4. It can be seen that this indeed is part of the Donkey Allotment lying to the north of Garden Cottage. The entry states that there is no agreement and the rent payable is 50p per annum the area in question being 0.35 acres. A handwritten note states that the rent was revised to £10 per annum from Michaelmas 1994 to be paid at Michaelmas in each year. Thus it would seem that rent was paid by Mrs Allen in respect of part of the Donkey Allotment.
54. The further difficulty I face in regard to this part of Mr Musker’s evidence is that these extracts from the Parish Council rent book for the years 1963, 1971 and 1982 refer to Mrs Allen as paying rent in respect of a parcel of land described as allotment number 2, Norwich Road. Thus for the year the year ended 31st March 1961 the rent payable in respect of plot 2 is shown as being 5 shillings; for the year 1970/71 the rent payable in respect of this plot was 25 pence; and for the year ended 3rd March 1982 the rent for the plot is shown as being 50p. If, however, regard is then had to the plan contained in RLT13 allotment number 2 is land abutting the Norwich Road and nowhere near parcel number 4 referred to in the Report (RLT13).
55. Thus, although both Mr Allen and Mr Musker state that rent was payable in respect of that part of the Donkey Allotment lying to the north of Garden Cottage, in fact, it is unclear as to whether these statements are in any event correct having regard to the documentary evidence. Further and in any event this begs the question whether this rental payment also included the Shed.
56. As I have said Mr Musker asserts that the whole of the land described in the Report as plot number 4 was rented by the Trust to Mrs Allen and that this rented land included the Shed. Having regard to this evidence, I accept the statements contained in the Statutory Declaration of Mr Allen that the Shed was never the subject of any rent payable by his late mother and father to the Trust. Indeed, as I have alluded above, there is some doubt that the land described as plot number 4 and shown on the plan contained in RLT13 was indeed ever rented by the Trust to them, the references contained in the Parish Council rent books for the years in question apparently referring to a different allotment number (being number 2). The first reference to plot number 4 and referred to as the lands let by the Parish Council as at 10th June 1993 and identified on that plan is in the Report contained in RLT13.
57. Thus, I am satisfied that at least in more recent history i.e. from circa 1943 no rent was ever paid or payable and the Shed was occupied by Mr Allen’s late father and mother exclusively. I accept the evidence of Mr Allen in this regard.
Mrs Allen’s “statement”
58. A further plank of Mr Musker’s case is based upon a statement made by Mr and Mrs Musker on 1st November 2006 apparently following a discussion with Mrs Allen in 1999 “regarding Mrs Allen’s tenancy”. This statement appears as document RLT9. It contains a number of assertions that Mrs Allen apparently made to him such as her husband had rented the Trust land opposite Garden Cottage and then since the death of her husband Mrs Allen had to continue to rent the land in question. Various further pieces of information were apparently provided by Mrs Allen and in the penultimate paragraph of this statement it is stated that Mrs Allen wished to continue to rent the Shed and the land, and it was agreed that she should continue to rent the land and the Shed at the previous rent of £10 per year. There was no indication from her that she was claiming ownership of the Shed.
59. This statement I discount in its entirety on the basis that it is a self-serving hearsay document made by a person now deceased and which is incapable of verification as to the veracity of its contents. Its evidential value is therefore, in my judgment, worthless.
Summary of the evidence
60. Thus the crux of the dispute is whether Mrs Allen rented the Shed together with the Donkey Allotment, or whether she, and/or her family, gained possessory title to the Shed from the Trust. The Trust is apparently is the freehold owner of the Donkey Allotment and the Shed, but I have been shown no documents of title in support of this assertion. Even if the Shed fell within freehold ownership of the trust there is no documentary evidence as to whether the Shed was still part of the Donkey Allotment (on the assumption that it had been in the past) when the parcel was let to the Allen family as is asserted. Further, the Trust has no documentary evidence showing unequivocally that it let the Shed as such (with or without the Donkey Allotment) to Mrs Allen or her family, together with other land shown coloured pink on the caution title plan. I am satisfied that Mrs Allen was in physical possession of the Shed from at least 1956 to her death in 2005 and that she used it as part of her domestic premises such as for keeping coal in it for many years.
ADVERSE POSSESSION
The legal position
61. Section 15 of the Limitation Act 1980 provides as follows:
“15(1) No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
(6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.”
62. Schedule 1, paragraph 1, provides as follows:
“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession in the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action, shall be treated as having accrued on the date of the dispossession order discontinuance.”
63. Schedule 1, paragraph 8, provides:
“(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as ‘adverse possession’) and where under the proceeding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.
(2) …..…..
(3) ………
(4) For the purpose of determining whether a person occupying any land is in adverse possession of land it shall be not assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter’s present or future enjoyment of the land.
This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.”
64. Thus, the right of action to recover the land is barred whenever 12 years have elapsed from the time when any right of action accrued. It does not have to be a period immediately before an action is brought.
65. The question, therefore, is simply “…whether the Defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner…Beyond that…the words possess and dispossess are to be given their ordinary meaning.” (per Lord Browne-Wilkinson in J A Pye (Oxford) v Graham [2003] AC 419 at paragraphs 36, 37).
66. Legal possession is comprised of two elements:
(1) A sufficient degree of physical custody and control (“factual possession”); and
(2) An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”). “What is crucial is to understand that, without the requisite intention in law there can be no possession. Such intention may be, and frequently is, deduced from the physical acts themselves.” (ibid paragraph 40).
67. Actual possession has been described as follows:
“It signifies an appropriate degree of physical control. It must be a single and [exclusive] possession…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.” (per Slade J in Powell v McFarlane (1977) 38 P and CR 452 at pp. 470-471, cited at paragraph 41 in J A Pye (Oxford) v Graham): -
“The only intention which has to be demonstrated is an intention to occupy and use the land as one’s own …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”, (per Lord Hope in J A Pye (Oxford) Ltd v Graham, at paragraph 71).
68. Thus, in short, what is required is the intention to exclude the whole world from control of the land, not the use of the land. If the squatter has and manifests the intention to exercise exclusive control of the disputed land, and in pursuance to that control permits the owner to make limited use of it, then he will have the intention to possess. There must be a deliberate intention to exclude the owner. He has to demonstrate an intention to occupy and use the land as one’s own.
THE DECISION
69. Having regard to the legal principles set out above as to adverse possession, and the factual aspects to which I have referred, I come to the conclusion that the Applicants through their predecessors in title have made out the claim to ownership of the Shed by dint of adverse possession. I find based upon the facts to which I have referred above, and upon the Statutory Declaration of Mr Allen, that the requisite period of twelve years required to base the claim for adverse possession has been made out. It is clear, in my judgment, that since at least the early 1940s the late Mr and Mrs Allen have together maintained full and undisturbed possession of the Shed sufficient for the purposes of establishing adverse possession. I have taken into account all the documents and other material produced by Mr Musker and the various contentions made by him, and I reject such evidence and arguments promoted by him as not being sufficient to overturn the Applicants’ claim to be registered as the proprietors of the Shed.
70. In such circumstances I will therefore make the appropriate direction to the Land Registry to give effect to the original Application. Any issues as to the question of costs I shall deal with in due course. Costs normally follow the event.
Dated this 5th day of November 2007
By Order of The Adjudicator to HM Land Registry