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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Thomas Richard Moore v Derek Buxton & Eileen Buxton (Adverse possession : Interruption) [2009] EWLandRA 2007_1216 (22 April 2009)
URL: http://www.bailii.org/ew/cases/EWLandRA/2009/2007_1216.html
Cite as: [2009] EWLandRA 2007_1216
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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
APPLICANT
and
(2) EILEEN BUXTON
RESPONDENTS
Property Address: Land lying to the west of Bearda Mill, Swythamley,
Rushton Spencer SK11 0RE
Before: Mr Rhys sitting as Deputy Adjudicator to HM Land Registry
Sitting at: Stoke on Trent Tribunal Centre
Representation:
Applicant: In Person
Respondents: Mr David Taylor of Counsel instructed by Messrs Tinsdills
D E C I S I O N
KEYWORDS – Adverse possession – nature of possessory title – disapplication of Limitation Act 1980 to possessory title – effect of closing a possessory title – interrelation between Section 96 of and Paragraph 5 Schedule 4 to the Land Registration Act 2002 – Section 11(7) of the Land Registration Act 2002
CITATIONS –
Powell v McFarlane (1977) 38 P & CR 452
Pye (Oxford) Ltd v Graham and others [1993] 1 AC 419.
The Disputed Land
1. This unfortunate dispute relates to a small piece of land lying between the Applicant's land known as Bearda Farm, Swythamley and the Respondents' land known as Bearda Mill Cottage. These properties are situated in an attractive and fairly remote part of the Peak District National Park. Bearda Farm, which consists of a house and outbuildings together with surrounding farmland, is registered under Title Number SF296580. It is situated to the north-west of Bearda Mill Cottage. This is a renovated and extended stone house, with outbuildings, surrounded by extensively landscaped grounds. It bears the Title Number SF333594, and was acquired by the Respondents in November 1993. The south-western boundary of Bearda Mill Cottage is formed by a brook or stream ("the Brook"), which runs in a west-north-westerly direction and flows into the River Dane after several hundred metres. The Respondents also own a substantial parcel of woodland, known as Big Hannel, which lies to the south of the Brook and is registered under Title Number SF297860. Bearda Mill Cottage is situated at the foot of a steep slope to the north, at the crest of which stands Bearda Farm house. The Respondents have carried out extensive excavations and landscaping works principally to the northern and north-western fringes of their property. The land is bounded by a substantial wall, which operates as a retaining wall along the north and north-west boundary ("the Retaining Wall") - where the land to the north is at its steepest - and becomes a largely decorative drystone wall as it comes further west. At the south-western corner of the registered title this wall is aligned more or less north-south, and at the southern end there is a stile, currently closed by means of some wire mesh fencing. I shall call this wall, terminating in the stile, "the Western Wall". To the south of the stile is a water-filled ditch or drain ("the Ditch"), which runs very roughly parallel with the Brook and after a short distance (approximately 7 metres, or so it appears from the agreed scale survey plan) it flows into it. This Ditch is a continuation of a channeled conduit or watercourse ("the Conduit") which runs through Bearda Mill Cottage from east to west, probably along the line of the original millrace. On the northern side of the Ditch is a post and wire stockproof fence which runs parallel with it as far as one can see. This ties into the southern edge of the stile. It encloses a field which forms part of the Applicant's title. To the south of the Ditch - and occupying the entire area between the Ditch and the Brook - is a tongue of land. At the eastern entrance to this land there is a drystone wall ("the Eastern Wall") with a gap in the middle - this wall probably forms the western boundary of SF333594, as I shall explain in more detail below. The tongue of land runs westwards from this wall up to the point where the Ditch and the Brook converge. About half way between the wall and the end of the tongue there is a post and wire fence which bisects it (running north-south).
The Dispute
2. The land in issue in this adjudication ("the Disputed Land") is that section of the tongue of land which lies between the Eastern Wall and a line drawn due south from the stile and Western Wall. That line is invisible - there is no physical feature on the ground to reflect it. The fence I have described which bisects the tongue of land is, it is agreed, actually well within the Applicant's registered title. The western boundary of the Disputed Land adjoins the eastern boundary of the Applicant's registered title. The Disputed Land itself has been registered with possessory title in the name of the Respondents under Title Number SF511539. The application to be registered was made on 30th March 2006 and was completed in May of that year. Prior to the registration, the Disputed Land was unregistered. On 5th December 2006 the Applicant purchased the Disputed Land - or at least purchased the land subject to the prior registration - from the previous paper title owner, namely the personal representative of Sir Phillip Brockenhurst. On 7th June 2007 the Applicant applied to alter the register under paragraph 5(c) of Schedule 4 to the Land Registration Act 2002 ("the 2002 Act"). This is an application to close the possessory title, on the basis that the Applicant has a paper title which had not been extinguished at the date of the registration in 2006, and the possessory title is subject to that paramount interest by virtue of Section 11(7) of the 2002 Act. The Respondents objected to the application, and the dispute was referred to the Adjudicator on 19th September 2007. I heard the case over the course of two days, and I had the inestimable benefit of a Site View prior to the hearing. The Applicant presented his case to me in person - although solicitors were acting for him, and Counsel (Mr Charles Harpum) had prepared his Skeleton Argument - and Mr David Taylor, of Counsel, represented the Respondents.
The Chancery Proceedings
3. At the outset of this Decision, I described the dispute between the parties as unfortunate. All disputes are of course in a sense unfortunate, but in this case particularly so, since this is not the first time that the parties have been involved in litigation. It is in fact the third time. In 1998 the Applicant and his former wife issued proceedings against the Respondents in the Chancery Division of the High Court ("the Chancery Proceedings"), alleging that the Respondents had trespassed on his land and indeed had constructed outbuildings on it. The land in dispute in the Chancery Proceedings ("the Additional Land") occupies an area bounded by Bearda Mill Cottage itself on the east, the Retaining Wall to the north and north-west, the Western Wall to the west, and the Ditch and Conduit to the south. The Chancery Proceedings were eventually compromised by a Tomlin Order made on 13th February 2004. One of the agreed terms was that the Applicant and his wife would transfer the Additional Land to the Respondents at an agreed price, and this was done by Transfer dated 24th June 2004. The Additional Land is separately registered in the Respondents' names under Title Number SF488728, but physically forms part of the grounds and curtilage of Bearda Mill Cottage. I have seen a considerable amount of documentation from and relating to the Chancery Proceedings, including the witness statements and the Tomlin Order and associated documents. In the course of the negotiations which eventually led up to the execution of the Transfer, there was very detailed discussion between the Applicant and the solicitor then acting for the Respondents, Mr Elder of Messrs Linder Myers. These discussions did not directly relate to the Disputed Land, which was not then in dispute. However, in the course of investigating title to the Additional Land, it became apparent to all parties in or about 2001 that the Disputed Land was not within their respective titles, but had been retained by the Brocklehurst Estate, no doubt by oversight. There is frequent reference to the Disputed Land in the correspondence, in which it is referred to by both parties alike as "no mans land" - an accurate description of the land sandwiched between the territory of two warring parties. The discussions regarding the Additional Land do have a bearing on the present dispute. This is because the parties agreed various plans of the area, and the position of certain physical features, which considerably assists me in identifying the boundaries of the Disputed Land.
The County Court Proceedings
4. As I have said, the Chancery Proceedings were resolved by a Tomlin Order in February 2004. Almost immediately, a different dispute arose. This related to a water supply to Bearda Farm, which came from a spring on a third party's land and across Big Hannel. The Applicant has a right of access to connect to the tap. However, by 2002 the Respondents had moved the tap onto the Disputed Land. The Applicant objected, on the grounds that since neither party owned the land, his right to connect into the tap had become precarious. There was correspondence between the Applicant and Respondents and their solicitors relating to this issue even before the Tomlin Order was made. In January 2004 the Applicant approached the owners of the Disputed Land with a view to buying it, but there was no reply and the matter was not taken any further until 2006. In the meantime there was further inconclusive correspondence, although the Applicant was threatening to issue proceedings as early as March 2004. On 15th October 2004 the Respondents wrote to the Land Registry asking for guidance in respect of their first registration with title to the Disputed Land. Mr Buxton's letter referred to the fact that they had been in adverse possession for some nine years, and the Land Registry informed him that in order to succeed it would be necessary to establish at least 12 years' adverse possession. In March and August 2005 the Respondents applied to the Land Registry for a title to the Disputed Land, but on both occasions the applications were rejected. The dispute regarding the spring water pipe remained unresolved, and on 26th January 2006 the Applicant issued proceedings in the Macclesfield County Court claiming that the water pipe should be moved. A directions hearing was fixed for 12th April 2006. However, on 30th March 2006 the Respondents renewed their application to the Land Registry for possessory title to the Disputed Land - the application that was ultimately successful. At the directions hearing on 12th April 2006 Mr Buxton attended, and informed the District Judge that he had applied for possessory title. The case was adjourned to 13th June 2006. On that occasion, Mr Buxton stated that the application had been successful, and since he was prepared to grant the Applicant an easement over the Disputed Land to access the water supply the case was not pursued.
The application for possessory title
5. As previously stated, the Respondents applied for a possessory title to the Disputed Land on 30th March 2006. Mr Buxton candidly admitted in the witness box that this was done in order to resolve the issue regarding the spring water supply. However, the Applicant was aware of the application, since this had been referred to at the April Directions hearing. He immediately contacted the Land Registry to query the validity of the application, and to request more information. He felt that he was not receiving any proper response, and eventually his solicitor wrote to the Land Registry, stating, among other things, that the application was based on false information. It seems that letters written by the Land Registry, giving the Applicant an opportunity to object to the application, were never received by him until the deadline had passed. Two letters were sent to Bermuda, for wholly unexplained reasons. However, the end result was that the Respondents' application was successful, no formal objection having been received from any party. The application itself was supported by a Statutory Declaration by Mr Buxton, which stated that the Respondents had been in undisturbed adverse possession of the Disputed Land since their purchase of Bearda Mill Cottage on 12th January 1994 (the date of actual registration - the Transfer is dated 26th November 1993).
The basis of the Applicant's application
7. The Applicant purchased the Disputed Land in December 2006, but the Respondents had already become registered with a possessory title on 30th March 2006. The Applicant applied on 30th January 2007 to be registered as proprietor of the Disputed Land, but the Land Registry rejected the application for technical reasons. After considerable discussion between the Land Registry and the Applicant’s solicitors, further applications were made, in June 2007, for registration, and to close the possessory title on the grounds that the unregistered freehold title had not been barred as at the date of the initial registration. Under Section 11(7) of the 2002 Act it is provided as follows:
"Registration with possessory title has the same effect as registration with absolute title, except that it does not affect the enforcement of any estate, right or interest adverse to, or in derogation of, the proprietor's title subsisting at the time of registration or then capable of arising".
The Applicant is thus treated as having applied to alter the register under Paragraph 5(c) of Schedule 4 to the 2002 Act, namely for the purpose of "giving effect to any estate, right or interest excepted from the effect of registration…". The Applicant's case is that he is the successor in title of the person who was the legal estate owner of the Disputed Land at the date of first registration. He contends that the legal title had not been extinguished under Section 17 of the Limitation Act 1980 at the date of first registration, since the Respondents had not been in adverse possession of the Disputed Land for a continuous period of twelve years prior to 30th March 2006. Accordingly, he argues, the possessory title must be subject to the rights of the legal estate owner as at the date of the registration, and he is entitled to close the title. His parallel application to be registered as proprietor - with an absolute title - of the Disputed Land has been placed in abeyance by the Land Registry pending the outcome of the instant case.
8. Quite simply, therefore, it is the Applicant’s case that, on the evidence, the Respondents cannot prove that they have been in adverse possession of the Disputed Land since 30th March 1994. Since the Applicant has the pre-registration paper title, the Respondents have the burden of proving that it has been extinguished, and they should probably have been designated as the Applicants in these proceedings. However, it does not much matter who has the burden of proof. The Applicant alleges, in his Statement of Case, that the Respondents did not take possession of any part of the Disputed Land until early 1996, and, in relation to the largest part of the land, that they are still not in possession. In short, he denies that the Respondents have been in adverse possession of the Disputed Land, alternatively that they have been in adverse possession for the required period of time.
The Respondents' case
9. By their Statement of Case, the Respondents contend as follows. Their primary pleaded case is that they have been in adverse possession of the Disputed Land since December 1993. It is worth setting out in full the relevant paragraphs of their Statement of Case.
20. In or about December 1993 the Respondents embarked on clearance and demolition works at Bearda Mill Cottage in anticipation that they would shortly be granted planning permission to carry out various building works at the property. In order to facilitate their clearance and demolition works the Respondents:
a. entered onto the disputed land with excavators in order to clear the culvert which lies between the disputed land and the Land Adjoining Bearda Mill Cottage;
b. cleared the disputed land of a number of trees which then stood on it;
c. used the disputed land for the purpose of storing building materials and associated paraphernalia and for burning building waste.
The storage of materials on the disputed land is illustrated by the photograph which is attached to this Statement of Case at Appendix 8………..
23. Accordingly between about December 1993 and about August or September 1994 the Respondents continued to use the disputed land in the manner described in paragraph 20(c) herein."
It is alleged in Paragraph 24 that further works of clearance and landscaping were carried out on the Disputed Land in about September 1994, and it was planted with grass seed in early 1995. In paragraph 28 it is alleged that "From early 1995 onwards the disputed land has been maintained by the Claimants as their garden", and various particulars are given. In Paragraph 29 the Respondents allege that "the disputed land has at all material times been enclosed within the ring fence of land which is owned and/or occupied by the Respondents. As pleaded in paragraph 18(a) herein a fence A-B-C-D separates Bearda Farm from (a) Big Hannell (b) the disputed land and (c) the land adjoining Bearda Mill Cottage." Paragraph 30 reads as follows:
"There has always been a fence on the western boundary of Title No SF511539. In about 2000 the First Respondent replaced that part of the fence which lies between points B and C on the Plan after it had fallen into disrepair. In 2004 the First Respondent attached sheep netting to that part of the fence as sheep from the adjoining field were finding their way through the fence and onto the Respondents' property."
In conclusion, the Respondents plead at Paragraph 31 that:
"In the premises pleaded in paragraph 20 herein it is averred that the Respondents entered into adverse possession of the disputed land in about December 1993 and they have remained in adverse possession of the disputed land since that date."
Their primary case, therefore, is that the Respondents acquired title to the Disputed Land on or before 31st December 2005, some three months before the date of their successful application for possessory title.
The alternative case
10. The Respondents also have an alternative case, which is set out at Paragraph 33 of the Statement of Case. This is a plea in the following terms:
"Alternatively, in the premises pleaded in paragraph 24 herein, it is averred that the Respondents entered into adverse possession of the disputed land in about September 1994 and they have remained in adverse possession of the disputed land since that date. Accordingly the paper title of the Applicant's predecessor in title to the disputed land was extinguished by operation of s.17 of the Limitation Act 1980 on or before September 2006. In the premises the Applicant has no standing to challenge the Respondents' title to the disputed land."
This alternative plea reflects the apparent distinction between the activities alleged to have taken place on the Disputed Land between December 1993 and September 1994 - see Paragraph 20 of their Statement of Case- and the more extensive activities pleaded in Paragraphs 24 and 28, said to have commenced in September 1994 and continuing thereafter. However, this alternative case raises a difficult - or at least novel - point of law, which I discuss in detail from Paragraph 24 onwards of this Decision. A period commencing in September 1994 would not give a period of 12 years prior to 30th March 2006 - it is six months short. Accordingly, this claim relies upon the Respondents being able to add the period of their alleged adverse possession since the date of their registration (30th March 2006), to the period of adverse possession accrued prior to that date. For present purposes, however, it may be noted that the two relevant start dates for the alleged adverse possession, according to the pleaded case, are December 1993 and September 1994.
The evidence
11. I heard extensive evidence in this case on the adverse possession issue. The Applicant called one witness and gave evidence himself. Mr Buxton gave evidence, and a further seven witnesses were called to support the Respondents' case. The evidence included video film of the works carried out at Bearda Mill Cottage and the surrounds between late 1993 and early 1995. The project to renovate and extend Bearda Mill Cottage, and to landscape the surrounding area, was an extremely ambitious one, and the Respondents wished to have a detailed record of the work they did. It was clearly something of a pet project for Mr Buxton - who in some video clips can be seen operating his own digger and earth-moving equipment - and he and his family are entitled to be justifiably proud of the outcome. Incidentally, however, this video film provided a very useful insight into the state of the land, including the Disputed Land, for the period I have mentioned. Although I did not watch the entire three hours' worth of film, I watched the extracts identified by the Applicant as material, and one additional passage identified by the Respondents. I shall discuss the evidence in detail later in this Decision.
The Respondents elect for the alternative case
12. After the evidence in this case was complete, and in the course of Mr Taylor's closing submissions, the Respondents abandoned their primary case. In other words, they no longer argued that they had been in adverse possession of the Disputed Land since December 1993, but relied only on the period from September 1994 onwards. Although it might be thought that a period of some nine months is unimportant, in the context of this case it is of great significance. This is because the Respondents originally obtained their title on the basis of a Statutory Declaration that asserted, in terms, that they had been in undisputed adverse possession of the Disputed Land since the date of the purchase of Bearda Mill Cottage, thus in excess of 12 years. They had already made two applications to the Land Registry for a possessory title, unsuccessfully, and the Land Registry had drawn their attention to the need for at least twelve years' adverse possession. The significance of a period commencing in January 1994, as opposed to September 1994, was obvious. However, I find it difficult to understand how that Statutory Declaration could ever have been made, or indeed how the Statement of Case could have been submitted by the Respondents. On the basis of the evidence I heard, as supplemented by the video film, it was absolutely clear that the Disputed Land had remained untouched by the Respondents until September 1994 at the earliest. The photograph submitted in support of Paragraph 22 of the Statement of Case does not show any building materials on the Disputed Land. Although Mr Taylor submitted that certain buildings had for many years encroached on the Disputed Land, and constituted adverse possession - and I shall consider this issue below - that was never part of the Respondents' case, either in the Statutory Declaration or the Statement of Case. When these documents were submitted by the Respondents, they were relying on the fact that they:
a. entered onto the disputed land with excavators in order to clear the culvert which lies between the disputed land and the Land Adjoining Bearda Mill Cottage;
b. cleared the disputed land of a number of trees which then stood on it;
c. used the disputed land for the purpose of storing building materials and associated paraphernalia and for burning building waste.
Even on their own evidence they could not support these allegations - hence Counsel's realistic and entirely proper abandonment of their primary case - since the various acts described happened towards the end of 1994, or later, and not at the end of 1993 or the early part of 1994. In a case of adverse possession accuracy as to the chronology of acts of alleged possession is, manifestly, of critical importance. The conclusion I draw is that if the Respondents had been accurate in the facts stated in the Statutory Declaration, they would not have been registered with possessory title as from 30th March 2006.
The legal requirements of adverse possession
13. Whether the Respondents’ adverse possession of the Disputed Land since September 1994, if proved, allows them to retain their possessory title, depends on the true meaning and effect of the relevant provisions of the 2002 Act, which are set out at some length in Paragraphs 22 onwards. However, it is necessary to decide whether the Respondents have been in adverse possession, and if so for what period. I should say that both parties entirely agreed as to the proper tests to be applied, namely that the Respondents needed to prove (a) factual possession and (b) an intention to possess the Disputed Land for the requisite period. The expressions “factual possession” and “intention to possess” are well-known, and have been exhaustively and definitively considered in the decision of Slade J (as he then was) in Powell v McFarlane (1977) 38 P & CR 452 and of the House of Lords in Pye (Oxford) Ltd v Graham and others [1993] 1 AC 419. Mr Taylor, for the Respondents, relied particularly on the following passage in Powell v McFarlane (at pp 470-1):
“The question what acts constitute a sufficient degree of physical control must depend on the circumstances, in particular the nature of the ;and 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 no-one else has done so.”
In other words, in deciding whether a squatter has been in factual possession of land, it is necessary to have regard to the nature of the land in question, and acts which may be insufficient in one case may be sufficient in another, where the character of the land allows.
Boundaries of the Disputed Land
14. At this point it would be appropriate to consider the exact boundaries of the Disputed Land. For the purposes of this adjudication it is agreed that the western boundary follows a line drawn due south of the Western Wall. There is no actual feature on the ground but this notional line is clear enough. There is no agreement as to the eastern boundary. Mr Moore himself said that he was prepared to assume that the Eastern Wall represented the boundary. At page 339 of the Bundle can be found a detailed survey plan prepared for the purposes of the Chancery Proceedings. This shows that the Eastern Wall is divided into two parts, with a gap between the sections. The northern section is a straight line, whilst the southern section is curved. The northern section is more or less parallel with the Western Wall. I understood Mr Moore to be saying that he regarded the northern section of the Eastern Wall as representing, more or less, the true eastern boundary of the Disputed Land. Mr Buxton, in his evidence, could not recall the exact position of the outbuildings which he caused to be demolished. He said that they were more or less in the position of the Eastern Wall, but could not be accurate to within more than 2 or 3 metres. However, Mr Taylor, on behalf of the Respondents, submitted that there was no certainty as to this boundary, and it was possible that the shed and log store referred to above were partially constructed on the Disputed Land. This point was not flagged up either in the Statement of Case or the witness statements, and cannot be said to have formed any part of the Respondents’ case until the hearing itself. Although a survey plan was prepared by a jointly instructed expert, since this was not a live issue he did not attempt to identify the exact position of the eastern boundary relative to the outbuildings. I have certainly not heard any evidence which satisfies me that the outbuildings, or any part of them, were in fact on the Disputed Land. I think that I am entitled to conclude that the outbuildings were not constructed on the Disputed Land. These buildings in effect formed a barrier between Bearda Mill Cottage and the Additional Land on one side, and the Disputed Land on the other, and I think it can be inferred that the buildings would have been constructed on land belonging to Bearda Mill Cottage, and not the adjoining land in the ownership of a third party. Doing the best that I can with the evidence I have heard, I find that the eastern boundary of the Disputed Land is in line with the northern section of the Eastern Wall, and that none of the demolished outbuildings were situated to the west of that boundary.
Activities on the Disputed Land
15. It is common ground that the Respondents did little or nothing on or to the Disputed Land prior to September 1994. They had acquired Bearda Mill Cottage in December 1993, and their first priority was to landscape the surrounding area and strip and refurbish the house itself. As I have indicated, these works were very extensive. They did not actually begin to live at Bearda Mill Cottage until mid-1995 at the earliest. Although it was originally contended that they stored building materials on the Disputed Land from late 1993 onwards, this point was not pursued, and it is plain that these materials were actually stored in front of the shed and log store that backed onto the Disputed Land. However, in September 1994 they began to demolish these outbuildings. As I understand his position, Mr Moore does not challenge the chronology:
15.1 The demolition of the shed and log store in mid September 1994
15.2 Some actual clearance of the site during October 1994.
15.3 By late November 1994 the Disputed Land has been churned up by machinery and much of the undergrowth cleared.
Accordingly, the Applicant accepts that the Respondents did enter the Disputed Land towards the end of 1994, and cleared it to some extent. Indeed, having regard to the evidence provided by the video film, the effect of these activities can be seen to some extent.
Findings of fact as to user of the Disputed Land
16. There is less common ground with regard to the Respondents’ activities on the Disputed Land after the end of 1994. I think it is fair to say that many of the Respondents’ witnesses had made statements which were somewhat vague both as regards the activities they carried out and the dates on which they did so. However, in the course of cross-examination by Mr Moore they were able to be more specific Having heard the evidence from a number of witnesses, I am able to make the following findings of fact:
16.1 The Respondents cut a number of trees on the Disputed Land. Mr Brookes thought that this probably occurred in 1996, when he cut two or possibly three trees down to ground level. Mr Buxton thought that he had cut more than this number.
16.2 Mr Walker gave evidence as to the maintenance work that he had done on the land. He only visited the site briefly in the winter of 1995, and did not do any work in that year. He thought he visited the site once or twice the following year (1996). He said that he did some strimming of undergrowth, between May and October in each year. He did not begin to do this until 1996 at the earliest. His witness statement was therefore not accurate, in that it stated that he had fully maintained the Disputed Land from Spring 1996, but this cannot be right. He may have done a little work on the two occasions in 1996, but the regular monthly strimming must have started in 1997. Mr Buxton confirmed that the Respondents did not begin to strim the area until late 1996.
16.3 Mr Buxton said that he had erected bird tables and nesting boxes on the Disputed Land. He agreed that there were similar items on the land when they arrived, but they added to them. His evidence that this took place from early 1995 onwards. I think it is much more likely that this activity also commenced towards the end of 1996, at the same time as the grass was regularly strimmed. Furthermore, it is not at all clear that the bird table was placed on the Disputed Land. The table is shown on some photographs placed in a tree, but the tree itself is no longer there. The tree might be within the Disputed Land, alternatively on the southern bank of the tongue of land, which actually falls within the Respondents’ other land known as Big Hannel. The filed plan shows that the northern bank of the Brook – the southern bank of the Disputed Land – falls within the Title. The tree in question may well be within the Respondents’ own title. Certainly, the area that the Respondents indicate as falling within the Disputed Land, on the photograph at appendix 2 to their Statement of Case, appears to exclude the bank and trees within it. I do not think I can be satisfied, on the balance of probabilities, that the bird table was placed within the Disputed Land.
16.4 Mr Buxton says that he has placed a security light in a tree on the Disputed Land, and I could see this on the site inspection. However, the same points arise as under 14.3 above as to the position of the tree in question. Indeed, he himself agreed that the boundary at this point is a “grey area”. It is uncertain whether the tree is within the Disputed Land or the adjacent land owned by the Respondents.
16.5 Mr Buxton says that he has planted shrubs on the Disputed Land. These shrubs are certainly not obvious, since the land itself is rough ground and in a natural state. If such shrubs were planted, again I think this is likely to have occurred from late 1996 onwards, when the Respondents began to take more interest in the Disputed Land. The same comment applies to the claim that daffodil bulbs were planted, and grass seed sown, on the land.
16.6 I do not accept that the Respondents’ dogs were ever exercised on the land. Mr Buxton accepted that although the dogs themselves may have run onto the Disputed Land – dogs understandably not being great respecters of legal boundaries, where no physical boundary exists – he never actually walked them on there.
16.7 As I have previously mentioned, a further dispute arose between the parties over the Respondents’ re-routing of the spring water supply pipe over the Disputed Land. According to Mr Buxton, this was done in the course of the building works to Bearda Mill Cottage, in 1994 or 1995, and was done with Mr Moore’s express consent. This became an issue in 2002, in connection with the compromise of the Chancery Proceedings, because by this time the precise boundaries of Bearda Mill Cottage had been established and it was apparent that the water pipe was situated on “no mans land” – i.e on the Disputed Land. Albeit that the pipe was installed with Mr Moore’s consent, I find that it was placed by the Respondent on the Disputed Land. However, it was freely accessed by Mr Moore’s employee, Mr Burdock, whenever there were problems with the supply.
Fencing
17. There is no evidence that the Disputed Land was ever fenced off from Bearda Mill prior to the arrival of the Applicants. However, the land was effectively separated from Bearda Mill by the range of outbuildings which were eventually demolished in September 1994. It is argued on behalf of the Respondents that by September 1994 the Disputed Land was wholly enclosed within the “ring fence” around their entire landholdings: namely Bearda Mill Cottage, Big Hannel and the land eventually purchased from Mr Moore (and his former wife) namely the Additional Land. In considering this submission, I must describe the state of the fencing in the general area. As I have said, the Disputed Land forms part of a tongue of land lying between the Brook and the Ditch. To the south of the brook lies Big Hannel, the boundary of which includes the bank adjoining the Disputed Land. There is no fence here, although Big Hannel itself has apparently always been fenced. To the north of the Ditch lies the Additional Land and (further west) Bearda Farm. The western end of the tongue of land (from the north-western point of the Additional Land as far as the confluence between the Brook and the Ditch) is and always has been within Bearda Farm. There is no boundary feature separating the eastern end of the tongue (i.e the Disputed Land) from the western end (Bearda Farm). It is now and as far as the evidence goes always has been an open boundary. However, there is now in place a post and mesh stock proof fence, which is constructed on Bearda Farm approximately two-thirds of the way between the (invisible) boundary with the Disputed Land and the western point of the tongue. This fence has been constructed in recent years. In my judgment, it was not present in that form prior to April or early May 2006 as Mr Moore contended. It is not shown on any of the Ordnance Survey or other material plans prior to the Land Registry survey in May 2006. Crucially, it is not referred to in Mr Buxton’s Statutory Declaration dated 27th March 2006, in support of his claim for possessory title. I asked him about this omission, and his response was that he did not realise that it was a relevant factor. I regret to say that this answer is incredible. He had already applied to the Land Registry on two occasions for possessory title, in 2004 and 2005, and on 20th October 2004 the Land Registrar had actually written to say “I assume that the land is separated by a fence or wall from other land..”. Mr Buxton cannot conceivably have been unaware that a fence separating the Disputed Land from Bearda Farm would be a highly material factor. As it happens, the fence is not erected along the legal boundary, but the Respondents were unaware of this until recently, since they were operating under a misapprehension as to the position of the western boundary of the Disputed Land – see, for example, their Statement of Case at Paragraph 30. It is true that Mr Buxton and Mr Walker gave evidence of a broken down wire fence that has historically been in the same position. There may well have been some strands of wire in the undergrowth, but neither Mr Moore nor Mr Burdock could recall anything being there until 2006. A few strands of wire, which were not along the line of the boundary, cannot be described as a boundary fence.
18. The northern boundary of the tongue is represented by the Ditch. This is not fenced, other than on the opposite (northern) side. The West Wall and adjoining stile runs at right angles to the Ditch. From the southern end of the Stile a wire stockproof fence runs westwards. This fence is within Bearda Mill, being erected along the top of the Ditch. To the east of the Stile there is no physical barrier between the Additional Land and the Disputed Land. At the eastern end of the Disputed Land there is the curved drystone wall, with a gap in the middle, which I have described as the Eastern Wall. Prior to 2004, of course, the Additional Land was within the ownership of the Applicant and his former wife.
19. It can be seen, therefore, that the Disputed Land has not been separately enclosed at any time. It was, from the ownership point of view, an island surrounded by land belonging to third parties, namely the owners of Bearda Farm, Big Hannel and Bearda Mill. The Disputed Land, considered as an isolated entity, was not itself fenced. In order to access it, the Respondents would have to go through the gap in the Eastern Wall. Due to the existence of the Stile, it was possible for the owner of the Additional Land - Mr Moore - to access the Disputed Land across the Ditch. Alternatively, he could climb over the stockproof fence on the northern side of the Ditch and enter, both his own land at the western end of the tongue, and the Disputed Land itself. Indeed, both he and his employee Mr Burdock gave evidence that they used to do this, primarily in connection with the spring water pipe. However, it is also correct to say that the Disputed Land was physically within the Respondents' "ring fence", much as it had been prior to their acquisition of the land. The principal access to it would have been over Bearda Mill Cottage or the Additional Land in Mr Moore's ownership, although it was more or less cut off from these holdings by the outbuildings I have described until the landscaping works were completed in 1995.
Conclusions as regards factual possession
20. In my judgment, the earliest date from which the Respondents could be said to be in exclusive factual possession of the Disputed Land was late 1996. I have already referred to the evidence regarding the strimming and other gardening activities. I also have in mind Mr Buxton’s own letter to the Land Registry dated 15th October 1994, in connection with an earlier application for possessory title, in which he states that the Disputed Land “has been for the past nine years treated as part of our garden…”. As I have said, on the basis of the evidence I have heard I find that the first gardening activities took place in the course of 1996, and I think that Mr Buxton’s letter was inaccurate on this score. The activities that took place on the Disputed Land prior to 1996 could not be said to amount to any form of possession, in my judgment. I appreciate that the land is of a rough and natural appearance, and I bear in mind the passage in Powell v Mcfarlane (at pp 470-1) that has been cited to me, but clearing the Ditch as part of the general engineering of the site, and the removal of some plant growth does not in my judgment amount to possession in this case. Nor do I consider that the fact that the land was within the “ring fence” of the Respondents’ total landholding amounts to possession. That would only be the case if the “ring fence” effectively excluded the whole world from the Disputed Land. In fact, there was no effective barrier to entry from the surrounding land belonging to Mr Moore – both the Additional Land prior to its sale to the Respondents, and from Bearda Farm at all material times to date.
21. Arguably, however, the situation changed in late 1996. Certainly there seems to have been more activity on this land on the part of the Respondents. Mr Walker started to maintain it by strimming, and there was some planting by the Respondents. However, it is I think a gross exaggeration to say that the land was treated as part of the Respondents’ garden. The photographs taken as late as Spring 2007, which are attached to Mr Moore’s second witness statement, indicate a rough patch of ground with no obvious planting of shrubs or even bulbs. True, the land has been cleared of overgrowth, but the appearance of the Disputed Land and the remainder of the tongue within Bearda Farm are pretty much the same and there are no signs of possession or use. I accept that parties may wish to retain land as a natural or wild garden, but in the present case the Respondents had a large wood and other land at their disposal in the immediate vicinity. I do not believe that they had any real use for the Disputed Land, albeit that they did not want it to become completely overgrown. In my judgment, this is a case falling near the outer margins of adverse possession, and it is by no means easy to decide on which side of the line the Respondents’ activities fall. Having regard to all the evidence that I have heard, however, I have concluded that the Respondents’ activities on the Disputed Land do not amount to factual possession of the Disputed Land within the Pye v Graham formulation, even having regard to the nature of the Disputed Land itself. Furthermore, I doubt very much whether they have ever had a sufficient degree of intention to possess. It is perfectly possible to treat a piece of land as an amenity – a piece of untamed rough ground – without having the necessary intention to possess. Certainly, no-one ever seems to have prevented Mr Burdock or Mr Moore from entering the land as when he wished to do so. The Disputed Land was, in reality, of no value or interest to the Respondents beyond the limited activities which I have referred to.
The legal analysis
22. I must now turn to the principal issue of law in this case. The Respondents concede that they cannot establish a full period of twelve years' adverse possession prior to the date on which they applied to be registered with possessory title. Even on their own case, the best they can do is eleven years and six months. However, they seek to add the period of alleged adverse possession since the date of registration, so that (on their case) the 12 years will have expired some time in 2006. I have of course, concluded that the Respondents have never been in adverse possession of the Disputed Land, and it is not strictly necessary to consider this alternative argument. If the Respondents are not and never have been in adverse possession the paper title will never have been extinguished. However, should my conclusions on the facts be incorrect, and should the matter go further, it is right that I should consider the legal issue. As I have said, they submit that I can have regard to any further period of adverse possession that can be proved after 30th March 2006. Their case is that they have remained in adverse possession since they were registered with possessory title, and even if they had not barred the paper owner’s title when originally registered, nevertheless the pre-registration period can be added to the post-registration period, and if the total adds up to more than 12 years they will have barred the Applicants' title. Mr Taylor, on behalf of the Respondents, puts his skilful argument in two ways:
22.1 First, the general rule, established by Section 96 of the 2002 Act, that Sections 15 to 17 of the Limitation Act 1980 do not apply to registered estates, does not affect the previously unregistered estate of the Applicant. In other words, time continues to run against him even whilst the Disputed Land was a registered possessory title. Mr Taylor could not find any authority on this point.
22.2 Alternatively, if the Respondents' possessory title is closed, as the Applicant requires, the fact that the land was previously registered should be ignored. Alteration of the register to give effect to the Applicant's paramount title has retrospective effect, and therefore time continues to run under the Limitation Act 1980 against the paper title owner as if registration had never occurred.
The scheme under the 2002 Act
23. Before considering these specific points, I shall set out the statutory provisions that appear to be material to this issue.
23.1 Section 9 - Titles to freehold estates
9(1) In the case of an application for registration under this Chapter of a freehold estate, the classes of title with which the applicant may be registered as proprietor are: -
(a) absolute title,
(b) qualified title, and
(c) possessory title……….
9(5) A person may be registered with possessory title if the registrar is of the opinion –
(a) that the person is in actual possession of the land, or in receipt of the rents and profits of the land, by vitue of the estate, and
(b) that there is no other class of title with which he may be registered.
23.2 Section 11 - Freehold estates
11(1) This section is concerned with the registration of a person under this Chapter as the proprietor of a freehold estate.
11(2) Registration with absolute title has the effect described in subsections (3) to (5).
11(3) The estate is vested in the proprietor together with all interests subsisting for the benefit of the estate.
11(7) Registration with possessory title has the same effect as registration with absolute title, except that it does not affect the enforcement of any estate, right or interest adverse to, or in derogation of, the proprietors’ title subsisting at the time of registration or then capable of arising.”
23.3 Section 62 - Power to upgrade title
62(1) Where the title to a freehold estate is entered in the register as possessory or qualified, the registrar may enter it as absolute if he is satisfied as to the title to the estate.
62(4) Where the title to a freehold estate in land has been entered in the register as possessory for at least twelve years, the registrar may enter it as absolute if he is satisfied that the proprietor is in possession of the land.”
23.4 Section 96 - Disapplication of periods of limitation
96(1) No period of limitation under section 15 of the Limitation Act 1980 (c.58) (time limits in relation to recovery of land) shall run against any person, other than a chargee, in relation to an estate in land or rentcharge the title to which is registered.
96(2) No period of limitation under section 16 of that Act (time limits in relation to redemption of land) shall run against any person in relation to such an estate in land or rentcharge.
96(3) Accordingly, section 17 of that Act (extinction of title on expiry of time limit) does not operate to extinguish the title of any person were, by virtue of this section, a period of limitation does not run against him.”
23.5 Schedule 4 -Alteration of the Register
5 The registrar may alter the register for the purpose of-
(a) correcting a mistake
(b) bringing the register up to date,
(c) giving effect to any estate, right or interest excepted from the effect of registration…”
Does the Limitation Act 1980 apply once a possessory title is registered?
24. My reading of the above provisions is as follows. Where a person is registered as the proprietor of a freehold estate with title absolute, the freehold estate becomes vested in that person. A possessory title is one of the three classes of freehold title, and it has exactly the same effect as registration with an absolute title, save that it is subject to adverse rights or estates that subsisted at the date of registration. However, the freehold estate is still vested in the proprietor, as with an absolute title. The title is, however, defeasible. It follows that the legal estate in the land is vested in the possessory title proprietor by virtue of the “statutory magic”, as it has been called. Where land is unregistered prior to the first registration with possessory title, the “paper” title owner ceases to be the legal estate owner at the moment of registration. There cannot be two legal estates in the land subsisting side by side. However, assuming that the “paper” title has not been extinguished by virtue of twelve years’ adverse possession prior to registration, his interest in the land is preserved. This is the effect of Section 11(7). This section, coupled with Schedule 4 paragraph 5(c), permits the person with the paper title (which is no longer a legal estate in the land) to apply to alter the register to reverse the registration of the squatter. Once the alteration is made, the title is closed and the unregistered proprietor becomes once again the legal estate owner of the land. The critical point here is that the interest of the paper title owner is frozen as at the date of the first registration – hence the phrase “estate, right or interest ………subsisting at the time of registration”.
25. How do the provisions as regards limitation apply in this situation? Section 96 of the 2002 Act provides that: “No period of limitation under section 15 of the Limitation Act 1980 (c.58) ………….. shall run against any person ……… in relation to an estate in land …….. the title to which is registered.” What does this mean? On the face of it, it means that once land is registered, Section 15 simply does not apply. Schedule 6 of the 2002 Act provides a new and comprehensive code for the application of adverse possession to registered land, in substitution for the code contained in the Limitation Act 1980. The present situation is as follows. The freehold estate in the Disputed Land is registered in the name of the Respondents, and they are by virtue of the statutory magic the legal estate owners. That being so, the Applicant – as the purchaser of the unregistered title – cannot himself be the legal estate owner. The “estate in land” referred to in Section 96 must, in my view, mean the freehold legal estate. The Respondents argue that this provision merely disapplies the Limitation Act to the registered proprietors, so that no-one can rely on the old limitation regime to bar the title of the registered proprietors. However, that construction does not, I think, give full effect to the provision. First, section 96 uses the expression “any person” – it is not expressly limited to the registered proprietor. Secondly, it does not give full effect to the phrase “an estate in land …. the title to which is registered…”. The Respondents’ case rests on the argument that during the period that the title is registered, time continues to run against the former paper title owner of the unregistered estate. That must be on the basis that this person has some sort of a freehold estate in the land which entitles him to sue for possession. However, that interest, if any, is also “an estate in land …. the title to which is registered…”. The estate is the freehold legal estate – and manifestly the Disputed Land is registered. The fact that the class of title is possessory makes no difference, for the reasons I have explained. I cannot therefore construe Section 96 as the Respondents do.
26. Furthermore, there is another reason why the Respondents’ argument cannot be correct. Section 15 of the Limitation Act 1980 imposes a time limit on actions for the recovery of possession of land: the extinguishment of title under Section 17 is merely the incidental effect of long delay in asserting rights. However, the time limit can only apply if there is a cause of action for possession. In my judgment, the Applicant is not entitled to possession unless and until he can alter the register to remove the Respondents. For so long as they are the registered proprietors, they are the legal estate owners, and on that basis they are entitled to possession of the Disputed Land. In order to be in a position to obtain possession against the Respondents, the Applicant must himself become the legal estate owner. This can only be achieved by closing the possessory title pursuant to Paragraph 5(c) of Schedule 4 to the 2002 Act, and then suing either as the unregistered freehold owner or (if he has himself become registered) as the proprietor of the registered estate. In the present case, the Applicant has indeed applied to be registered as the proprietor, based on the Conveyance from the previous owners, but that application is of course on hold pending the outcome of this adjudication.
27. Mr Taylor, for the Respondents, suggests that this construction of the 2002 Act creates an anomaly. He argues that it would be perverse to prevent a squatter from acquiring a title to land merely because he has chosen to apply for a possessory title a few months prematurely. Where a squatter is registered with possessory title at a time when the unregistered title has not yet been extinguished, but thereafter remains in what would otherwise be described as adverse possession, in effect time stops running and it is thus impossible for the squatter to bar the paper owner’s title. In my judgment, the “anomaly”, if it exists, can be justified. First, a possessory title can be upgraded under Section 62 of the 2002 Act. Under Section 62 (1) the registrar may “enter it as absolute if he is satisfied as to the title to the estate”: this power could doubtless be used where further evidence of adverse possession is obtained so as to demonstrate more than twelve years’ possession prior to the date of the initial registration. Further, under Section 62 (4) where a freehold title has been registered as possessory for at least twelve years, the registrar may upgrade it to absolute if he is satisfied that the proprietor is in possession of the land. This would allow a registered proprietor to take advantage of his continued possession of the land, even after registration with possessory title, so as to obtain an absolute title and thus defeat once and for all the interest of the pre-registration owner. Secondly, a squatter is not obliged to register a possessory title – a fortiori, before he can be confident of demonstrating at least twelve years’ adverse possession. He could, as an alternative, enter a caution against first registration and continue in adverse possession of the unregistered title. He could simply remain in adverse possession until the paper owner decided to assert his rights. In my view, however, if the squatter does choose to apply for a registered title, he is voluntarily opting into the new and different code created by the 2002 Act. The whole point of this new regime is that the system does not depend on the operation of the Limitation Act 1980 at all. Indeed, it would be more of an anomaly if two different adverse possession regimes applied simultaneously in respect of the same land, which is the effect of Mr Taylor’s submission.
28. Furthermore, it is not at all clear how the Limitation Act 1980 would operate in this case, if the Respondents’ contentions are correct. For the reasons explained above, I have found that the earliest date that they could be said to be in factual possession of the Disputed Land was late in 1996. Let it be assumed, in their favour, but against my findings, that they can show a period of adverse possession commencing in late 1996. The Respondents became registered with possessory title in March 2006. The Applicant applied to close the possessory title in June 2007. The adjudication reference was made in September 2007, and the hearing took place in February 2009. The Applicant has not brought any action to recover possession of the Disputed Land to this day. If the Respondents are right, time continues to run under the Limitation Act 1980 against the Applicant for the entire period, up to and including the date on which possession proceedings are commenced. On this basis, the Applicant’s “title” became extinguished some time in 2008, after the date of the application under Paragraph 5(c) of Schedule 4 to the 2002 Act and after the date of the reference. It seems to me that this would operate unfairly as against parties in the position of the Applicant, whose rights under of the 2002 Act are in effect rendered nugatory. In the course of asserting his rights under Section 11(7) - availing himself of the remedy provided under the 2002 Act, instead of issuing proceedings for possession - his rights would have been overridden. I do not think that this can have been the intended legislative outcome.
If the title is closed, can the prior registration be ignored for Limitation Act purposes?
29. Mr Taylor also has a second string to his bow. He argues that, if the title is closed, the freehold title is treated as if it had always been unregistered, so that time under the Limitation Act continued to run against the Applicant after March 2006. This submission is based on the argument that alteration of the register under paragraph 5(c) of Schedule 4 to the 2002 Act has retrospective effect. This can be inferred, argues Mr Taylor, from the specific provision in paragraph 8 of Schedule 4 to the following effect:
“Rectification and derivative interests
The powers under this Schedule to alter the register, so far as relating to rectification, extend to changing for the future the priority of any interest affecting the registered estate or charge concerned.”
This means that rectification – i.e alteration of the register prejudicially affecting the title of a registered proprietor - only has prospective effect. This is obviously right: under normal circumstances (leaving aside fraud and similar cases) persons relying on the state of the register at any given date must be entitled to assume that it will not be subsequently altered to their prejudice. Mr Taylor argues that, by contrast, mere alteration to give effect to the paper owner’s prior interest is retrospective. It therefore follows, he argues, that the freehold estate is deemed never to have been registered, so that the provisions of Sections 15 and 17 of the Limitation Act 1980 are deemed always to have applied to the land in the possessory title. I have probably not done full justice to Mr Taylor’s argument, but I hope that this provides a fair summary. I do not, however, accept the argument. It contains, if I may say so, a central fallacy. The fact that rectification of the register does not affect existing interests, does not necessarily mean that alteration operates retrospectively in the full sense. If, in this case, the title is closed, it will be closed as from the date of the Applicant’s application under Schedule 4 paragraph 5(c). However, the fact that a possessory title may be closed on the application of the previous “paper” owner does not effect a re-writing of history. As a matter of fact and law, the title has been registered since March 2006, and during the period of registration and for the reasons set out above the Limitation Act 1980 did not apply.
Conclusions
30. For the above reasons, I shall direct the Chief Land Registrar to give effect to the Applicant’s application dated 25th June 2007, which involves the closure of the Respondent’s possessory title. The Applicant’s application to be registered as proprietor has not been referred to me, but I assume that the Land Registry will give effect to it in due course. In reaching my decision, I have not taken into account the various allegations and counter-allegations concerning each party’s conduct since this dispute arose. It is obvious that there is considerable antipathy between Mr Moore and Mr Buxton, although, to the credit of both of them, they did not allow this antipathy to surface and affect the conduct of the hearing. However, I am not in any position to make findings about their conduct, nor are such findings either necessary or appropriate for the purposes of this Decision.
31. On the question of costs, my initial view is that costs should follow the event – namely, that the Respondents should pay the Applicant’s costs, to be assessed on the standard basis. However, as I indicated at the hearing, I will give the Respondents the opportunity of arguing against this proposed order if they wish to do so. I therefore direct the Respondents to file and serve any written submissions on or before 1st May 2009, and the Applicant may reply within 7 days, also in writing.
Dated this 22nd day of April 2009
By Order of The Adjudicator to HM Land Registry