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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Paul Lory v Harpserve Ltd (Adverse possession : Intention to possess) [2009] EWLandRA 2008_1530 (11 November 2009)
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Cite as: [2009] EWLandRA 2008_1530
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REF/2008/1530
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
RESPONDENT
Property Address: Land to the South side of Barnes Lane King’s Langley
Before: Mr Rhys sitting as Deputy Adjudicator to HM Land Registry
Sitting at: Victory House, Kingsway, London WC2B 6EX
On: Wednesday 28th October 2009
Applicant representation: Mr Calland of Counsel instructed by Bircham Dyson Bell LLP
Respondent representation: Mr Trompeter of Counsel instructed by Matthew Arnold & Baldwin LLP
DECISION
___________________________________________________________________________
KEYWORDS – Adverse possession – Schedule 6 paragraph 5 of the 2002 Act – whether the Applicant had a reasonable belief that he owned the disputed land – held that he did not
INTRODUCTION
1. This is a claim to a title in land based on adverse possession brought under the new regime, namely, the regime established under Schedule 6 of the Land Registration Act 2002 (“the 2002 Act”). The land in question – which I shall refer to as the Disputed Land – is a small finger of grassland with a frontage to a narrow, somewhat rustic, lane known as Barnes Lane, King’s Langley, which runs more or less in an east-west alignment. The Disputed Land is on the south side of Barnes Lane, and lies between two adjoining dwellinghouses and their gardens. Immediately to the west of the Disputed Land is the property known as Barnes Croft, and immediately to the east is the property known as October Cottage. I have described the Disputed Land as a finger, but it may perhaps also be described as sticking out like a sore thumb, being in effect a narrow strip of open agricultural land surrounded by houses on each side. It currently forms part of the Respondent’s title registered at HM Land Registry under title number HD125900. By an application dated 28th March 2008 the Applicant applied in Form ADV1 to be registered with title to the Disputed Land. On 12th August 2008 the Respondent served a counter-notice in Form NAP, requiring the Land registry to deal with the application under Schedule 6, paragraph 5 of the 2002 Act. The Applicant’s contention that he had a reasonable belief that he owned the Disputed Land was directly put in issue. The dispute was referred to the Adjudicator on 6th November 2008.
THE APPLICANT’S CASE
2. The Applicant’s case is that he has been in adverse possession of the Disputed Land since September 1995, in the following circumstances. By a Transfer dated 29th September 1995 (“the Transfer”) the Respondent transferred to the Applicant land described as “43 acres of land on the north and south sides of Barnes Lane, King’s Langley” (which I shall refer to as “the North Field” and “the South Field” respectively). He was already renting the North and South Fields, including the Disputed Land, prior to this date under the terms of an annual grass keep letting. Essentially, he contends that the Disputed Land has always formed a physical part of the South Field – a large field which surrounds the dwellings on Barnes Lane that I have referred to and lies immediately to the south of the Disputed Land – and that he after he purchased the North and South Fields he continued to treat the Disputed Land as part of the holding. He says that the same farming operations have been carried out on the Disputed Land as on the remainder of the land. In particular, he claims that cattle have been grazed on the Disputed Land, a crop or crops of silage have been taken off it each year, he has maintained the boundaries, and has top dressed the grass on an annual basis. The Applicant claims that he has been in adverse possession of the Disputed Land since September 1995, and further that the condition set out in paragraph 5(4)(c) of Schedule 6 applies, namely that he has for a period of at least 10 years reasonably believed that the Disputed Land has belonged to him.
THE RESPONDENT’S CASE
3. The Respondent denies that the Applicant has been in adverse possession for any period, and certainly not for ten years. First, it denies that the Applicant has made any use of the Disputed Land, other than, I think, the very occasional straying into the area by one or two of his cattle, which were grazing the South Field. It certainly denies any cutting of silage or systematic use of the land for grazing. Secondly, it denies that the Disputed Land has been physically comprised within the boundaries of the South Field, contending that there had, until approximately 2005, been a post and wire fence across the bottom of the Disputed Land, sufficient to separate it from the South Field. Thirdly, it contends that its agent, namely Mr Todd, has maintained and tidied the Disputed Land on a regular basis, so that the Applicant cannot possibly have been in exclusive possession – an essential ingredient of adverse possession. Finally, it denies that the Applicant had a reasonable belief that he owned the Disputed Land.
THE APPLICANT’S EVIDENCE
4. The Applicant himself gave evidence, relating primarily to two issues. First, the alleged acts of exclusive possession. Secondly, as to his belief that he owned the Disputed Land. He made two Statutory Declarations, and a witness statement, upon which he relied, and was cross-examined on these statements. By way of introduction, he operates a substantial agricultural business, with a total of 2000 acres – both owned and tenanted - being farmed. He is an elderly gentleman, who is not apparently in the best of health, and manifestly he does not get physically involved in all the agricultural operations carried out on his land. In his Statutory Declaration dated 10th March 2008 – upon which the application was based – he declared that he had continuously occupied the Disputed Land “exclusively for agriculture taking a crop of silage off it and grazing cattle throughout the year.”. This allegation was repeated in his Statement of Case, in somewhat greater detail, and Mr Lory had confirmed the contents of the pleading under oath. However, when he came to be cross-examined, his evidence was somewhat less definite. In particular, he agreed with Counsel that it would be very difficult to manoeuvre heavy farm machinery onto the Disputed Land for the purposes of taking off a crop of silage. Indeed, at one point in his evidence he said that he did not take silage off the Disputed Land, although he added that he would have to ask “my staff” about this. As regards his belief that he owned the Disputed Land, he said in evidence that in 1995 he believed that he was buying the same area of land from the Respondent as had previously been subject to the grass keep letting. It is clear from the letter from Beesons dated 14th March 1994 that the Disputed Land was included within the South Field, and (subject to the issue of the fence referred to below) it follows that prior to the sale in 1995 the Applicant was in possession of the Disputed Land pursuant to the grass keep agreement. He was adamant that, as far as he was concerned, the sale included the Disputed Land. In cross-examination he was taken through the documents contemporaneous with the sale – in particular, a report on title prepared by his solicitors, and the Transfer itself. The plan attached to the report on title clearly excludes the Disputed Land, as does the plan to the Transfer, which the Applicant had signed. Mr Lory was reluctant to engage with these documents, and his stock answer seemed to be “No comment”. However, he did not accept that he was ever aware that the Disputed Land was excluded from the sale, and in effect said that he had paid no attention to these documents.
5. Apart from Mr Lory himself, a number of other witnesses were called and were cross-examined by the Respondent. Mr John West, who has lived at October Cottage, Barnes Lane, since October 1987, gave evidence. As I have said, October Cottage immediately adjoins the Disputed Land to the east. His evidence was that (a) the land was continuously used for cattle grazing and hay crops for some 20 years, until May 2008 when a fence was erected across the southern end of the Disputed Land, and (b) that prior to May 2008 there was no fence separating the land from the South Field. Mr Brian Boatwright was engaged to cut the Applicant’s hedges in or about 2003, and priot to that time he accepted he had no detailed knowledge of the Disputed Land. He denied that there was any fence separating the Disputed Land from the South Field, and stated that there was a line of barbed wire, and the remains of a rusty gate, along the front of the land, at the frontage with Barnes Lane. He said that he had damaged his cutter on this wire. Mr William Weston was called. He has been engaged as on of the Applicant’s tractor drivers and farm workers for over 20 years. He is based at Langleybury Farm, approximately 4 miles away from the Disputed Land. However, he said that he had often worked on that land, helping to take a silage crop, and described how it was necessary to reverse the tractor into the land because it was relatively narrow. He also said that he had “topped” the Disputed Land, by which I understand him to mean top dressing the field with fertiliser to keep it weed free and tidy. Another of Mr Lory’s tractor drivers, Mr David Gamage, gave evidence. He confirmed that he had actually used machinery on the Disputed Land for the purposes of taking off a silage crop. He said it was possible to cover the whole area with three runs of the tractor. He also confirmed that there was no fence separating the Disputed Land from the South Field until 2008, but there was a fence across the front of the land, along Barnes Lane. Mr Leonard Francis, who is Mr Lory’s principal stockman, has worked for him since 1986. His evidence was that cattle are grazed on the South Field between approximately April or May to October or November in any given year, depending on the weather. In the winter the cattle are kept under cover. The herd consists, on average, of 30 cows and 30 calves, and a bull – some 61 head. According to him, since there was never any barrier between the South Field and the Disputed Land, the cattle would inevitably graze in both areas. In view of the size of the Disputed Land, the entire herd would not graze there at the same time, but over the course of the day most of them would go into the area for a short while. According to Mr Francis, he checked the boundaries of the Disputed Land, since it was his responsibility to ensure that they were stock-proof. The gate from Barnes Croft had always been wired shut, and there was barbed wire in the hedge at the front of the Disputed Land to prevent cattle from escaping onto Barnes Lane. He had never seen anyone other than fellow farm employees on the Disputed Land until relatively recently. Mr Lory’s Secretary, Miss Margaret Hill, also gave evidence. She produced certain documents connected with farm subsidy payments, indicating that the Disputed Land has always been treated for these purposes as part of the South Field. She also confirmed that, to her own knowledge, the Disputed Land was always farmed as one with the South Field, and that there was never a fence separating the two pieces of land.
6. In addition to these witnesses, the Applicant relied on three other witness statements, namely those of Mr Keen (another of Mr Lory’s tractor drivers, now deceased), Marion Kelman and Maureen Featherstone-Brown. Mr Keen’s statement confirms the evidence of the other farm employees. The other two ladies live on Barnes Lane close to the Disputed Land, and confirm that prior to May 2008 there was no fence separating the Disputed Land from the South Field. The Applicant also put in evidence three aerial photographs, dated 1994, 1998 and 2000.
THE RESPONDENT’S EVIDENCE
7. The Respondent is a company, whose principal director was a gentlemen by the name of Jack Menashi, who made a Statutory Declaration on 12th August 2008. Sadly, Mr Menashi has since died, so it was not possible for him to be cross-examined, although I allowed the statement to be read as his evidence. In the late 1970s Mr Menashi bought the Barnes Farm Estate, some 400 acres, including the main house (Barnes House), 3 cottages, various barns and agricultural land and woodland. Mr Menashi lived at Barnes House until approximately 1995. It seems that most of the agricultural land was sold to Mr Lory in the late 1970s. The remainder of the estate was vested in the Respondent in 1983. The Respondent sold the North and South Field to Mr Lory in 1985, as is common ground. Mr Menashi says that the Disputed Land was excluded from the sale – again, this is common ground. Mr Menashi says that the Disputed Land was retained since it was thought that it might have development potential, and indeed an unsuccessful planning application was made in 1998 in relation to the Disputed Land. Mr Menashi does not say that he discussed the retention of the Disputed Land with Mr Lory, and he could not recall having let the land to him in 1993. Mr Menashi says that, at the time of the sale to Mr Lory, there was a fence at the bottom of the Disputed Land, separating it from the South Field. Mr Menashi did not visit the land after 1995, residing elsewhere, including the Unites States between 2002 and 2007. He states that he asked Mr Todd to look after the Disputed Land in 1996, and confirms that he paid him to do so. He produced some invoices prepared by Mr Todd and dated 2004 and 2005.
8. Mr James Todd is the father of Ms Cherie Todd, who owns and occupies the house known as Barnes Croft, immediately adjoining the Disputed Land to the west. Ms Todd, in her Statutory Declaration, describes the Disputed Land as “important” to her for the purposes of access and additional space in connection with her proposed extension to Barnes Croft, and says that “…this area will be an essential extension to our land.” Mr Todd has lived in the area for most of his life, and when he was a child spent time at Barnes Farm, which then included the South Field and Disputed Land. Indeed, he recalled that when he was a boy (he was born in 1954) the Disputed Land was one of the entrances to the South Field from Barnes Lane. According to him, by 1996 this was no longer the case, and there was “a barbed wire fence at the rear of the land at the boundary with the [South] field which was in a state of disrepair……..It had 3 lines of barbed wire held up by posts some of which were broken but the fence was in place. It did deteriorate further over the years but remained in place until about 2005 although by then some of the barbed wire was by then down on the ground. I did notice that it had been removed about 3 years ago and assumed this had been done by Paul Lory….Before the fence was removed I would occasionally see a cow or two that had strayed on to the disputed land walking over the fence where it was down…… As the field is so large the cows, who generally stay together as a herd, would not usually go on to the disputed land. It is tucked away from the main field and too small for them to follow each other on. Although as I have said they did occasionally breach the fence when it was dilapidated, even when the fence was removed I did not see cows on the disputed land any more frequently.” Mr Todd confirmed the arrangement he made with Mr Menashi to look after the Disputed Land, and said that he had done so. He said this: “The disputed land was very overgrown. Initially I cut it back the Barnes Lane overgrown hedge back just to the extent that I could get myself through. Over the years the growth has become more manageable. …..More recently, I cut back the access at Barnes Lane more so that I could get a tractor onto the land to cut the grass.”
9. Ms Todd confirms her father’s evidence that (on her behalf) he asked Mr Menashi if she could buy the Disputed Land after she moved into Barnes Croft in 2005, and that he agreed to rent it to her for a rent of £100 per year. She says that she has used the Disputed Land since 2005, putting plant pots and children’s toys on it, and allowing her dog to run over it. She confirms that there was a fence separating the South Field from the Disputed Land until approximately July or August 2005, although it was dilapidated. She says that she tried to make the fence more secure by attaching orange bunting to the bottom wire, to ensure that her puppy did not stray into the South Field. She also recounted an occasion in March 2008 when Mr Lory came to her home in a temper, and asked her why she had put her daughter’s toys on the Disputed Land. She told him that she rented the land from Mr Menashi. He returned again in May 2008 and threatened to involve the police unless she removed the toys from “his” land. The above is only an outline summary of the Respondent’s evidence, of course.
FINDINGS OF FACT
10. What findings do I make? First, it is clear that the Disputed Land was included within the grass keep letting agreement between the Respondent and the Applicant in 1993. This is apparent from the letter from Beesons that I have referred to, read together with the Rural Payments Agency plan and the MAFF Field Data Printout of 1995. Secondly, I am satisfied that, at the time of the 1993 letting and at all material times thereafter, there was no fence which separated the South Field from the Disputed Land. None of the contemporaneous plans shows any such fence, and the entire area is included within OS number 9722. The RPA plan dated 2004 does not show a fence – if it had existed it would almost certainly have been reflected in the OS map, with a “brace” mark to show that the two separated parts of the South Field were included within the one designation. The aerial photographs dating from 1994 do not show anything remotely suggesting a fence – even a dilapidated one – across the gap. All this evidence might be described as objective, in the sense that it derives from documents or photographs that speak for themselves. However, the parties have also given direct evidence on the matter. The Applicant and his witnesses deny that any such fence existed, at least since 1993. The Respondent’s witnesses are adamant that such a fence did exist. Mr Todd’s evidence was of course that although the fence was dilapidated, it was a recognisable fence, with three strands of barbed wire, although some of the posts had fallen over. This was also Ms Todd’s initial position, although in cross-examination she said that the fence was entirely on the ground, with strands of wire buried in the ground. According to her, the fence would not even prevent her puppy from going into the South Field, so she laid orange bunting between the posts which were still standing, although they were very “low down”. The orange bunting was intended to signal to the puppy that it could not stray any further. This may be contrasted with the evidence in her statement that the orange bunting was used to reinforce the dilapidated fence. On the other hand, Mr Lory’s farm workers, who had actually driven machinery and walked in the Disputed Land – which evidence I fully accept – saw no sign of any such fence. They pointed out that a broken down barbed wire fence, with lengths of wire in the ground, would represent an obvious danger to cattle. Mr Gamage pointed out that the machine he used for silage had a metal detector attached to an alarm, so as to prevent the machine from damage. The alarm never sounded when he worked the Disputed Land. Having regard to the oral evidence, and to the “objective” evidence, I conclude that there was no fence, or even the remnants of a fence, along the boundary between the Disputed Land and the South Field, at any time since Mr Lory went onto the land in 1993. I also regard it as inherently improbable that cattle would have been allowed to graze land which contained such an obvious hazard as loose strands of barbed wire at ground level. It is inconceivable that Mr Lory, or his employees, would have waited until 2005 to remove this hazard, as Ms Todd states. I unhesitatingly conclude, therefore, that the Disputed Land and the South Field were physically one single until throughout the period from 1993 until 2008, when the new fence was erected.
11. It follows from this finding that the Disputed Land was comprised within the physical boundaries of the South Field at all material times until 2008. The only proper entrance was through the main farm gate into the South Field, some distance along Barnes Lane to the west and close to the By-Pass. There was a physical boundary between Barnes Land and the Disputed Land. This consisted of a thick hedge, inside which there was a strand or strands of barbed wire to make the hedge stock-proof. There was no gate, but the old metal gateposts are still visible. The barrier was designed to be secure so that cattle could not escape onto Barnes Lane. I reject Mr Todd’s evidence that at some time prior to 2005 he made an entrance in the front hedge to allow him to enter the Disputed Field and carry out his alleged works of spraying and trimming. In cross-examination he mentioned, for the first time, that he had entered the Disputed Land by climbing over the wall from Barnes Croft. This evidence supports the Applicant’s case that no access was available either from Barnes Lane, or through the side gate from Barnes Croft. If Mr Todd did go onto the Disputed Land he did so by climbing over the physical boundary. I also reject his evidence that he took his sit-on mower through the side gate from Barnes Croft from 2005 onwards. Quite apart from the physical difficulty of getting through this gap, the evidence is strikingly at odds with that of his witness statement, in which he says; “More recently, I cut back the access at Barnes Lane more so that I could get a tractor onto the land to cut the grass”. This must be a reference to the creation of the new opening onto Barnes Lane, which can be seen in the photographs, and is visible today but closed with a temporary post and wire fence. This occurred in 2008, and in my judgment this was the first time that Mr Todd entered the Disputed Land with any machinery for cutting grass.
12. Furthermore, in my judgment the only person who could be said to be in possession of the Disputed Land until 2008 was Mr Lory, through his employees. I am satisfied that the land was effectively incorporated into the South Field, and was used for grazing cattle and for silage crops as his witnesses described. I accept that Mr Lory’s own personal knowledge of the farming activities on the Disputed Land is limited, and his Statutory Declarations are open to the criticism that they do not explain the basis of his knowledge. However, I am satisfied that there was user of the land as he claims, albeit that the people carrying out the material activities were his employees. This is hardly surprising in the circumstances of a large farming operation such as his.
13. I am also satisfied that the side gate from Barnes Croft was wired up until 2005 at the earliest, and there was no entrance from the lane, whether pedestrian or vehicular, until Mr Todd cut the large opening in the hedge in 2008. It is of course possible that Mr Todd did enter the Disputed Land over the wall from Barnes Croft from time to time prior to 2005, but I do not accept that he carried out regular spraying of the grass and trimming of the undergrowth. The area was manifestly part of Mr Lory’s farm and there would be no reason for him to do this. It may also be that Ms Todd did occasionally enter the Disputed Land from 2005 onwards, but if she did it was only fleetingly. She did not do anything on the land which alerted Mr Lory to her presence until the early part of 2008. I think that this is evident from the fact that he did not object to her actions until the incident referred to in paragraph 9 of her witness statement, and the forcible manner of his objection when she did not comply with his request. It seems to me that Mr Lory would not have stood idly by if his employees had seen any other signs of activity on the Disputed Land. Since, as I accept, his employees did visit the land regularly throughout the year – obviously more regularly during the farming season – they would have noticed if some other person was in possession. I conclude, therefore, that not only was the Applicant in factual possession of the Disputed Land from September 1995 until May 2008, but he was in exclusive possession. Any entry onto the land by Mr or Ms Todd was not capable of amounting to possession, and did not either exclude the Applicant, or share possession with him.
THE LEGAL ISSUES – ADVERSE POSSESSION
14. I do not think that there is any doubt about the legal tests to be applied with regard to a claim to adverse possession. My attention has been drawn to the usual authorities, namely Powell v McFarlane (1979) 38 P & CR 452 and J.A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, from which the principles may be extracted. Ultimately, of course, all adverse possession cases depend on their own facts, and I am aware that the nature of the factual possession required varies according to the nature of the land in question. As to the intention to possess, this will usually be inferred from sufficient acts of factual possession, bearing in mind that the intention is not to own, but to possess, the land. In my judgment, I have no hesitation in holding that the Applicant was both in factual possession and had the required intention to possess. His factual possession came to an end in May 2008, when the Disputed Land was fenced off from the South Field, and accordingly that is the date when his adverse possession ceased.
THE LEGAL ISSUES – THE THIRD CONDITION
15. Since this claim is brought under the new regime established by the 2002 Act, it is not enough that the Applicant can show that he has been in adverse possession for at least ten years. The Respondent, in its NAP notice dated 12th August 2008, required the Land Registry to deal with the application under paragraph 5 of Schedule 6. Specifically, it put in issue the Applicant’s assertion that he satisfied the third condition of paragraph 5. This condition reads as follows:
a. the land to which the application relates is adjacent to land belonging to the applicant,
b. the exact line of the boundary between the two has not been determined under rules under section 60,
c. for at least ten years of the period of adverse possession ending on the date of the application, the applicant or any predecessor in title reasonably believed that the land to which the application relates belonged to him, and
d. the estate to which the application relates was registered more than one year prior to the date of the application.
The Applicant is able to satisfy (a), (b) and (d) of the condition: the question is whether he can satisfy (c), namely that “for at least ten years ……the applicant……reasonably believed that the land…belonged to him”.
16. I must first decide whether the Applicant believed that the land belonged to him. Obviously, if he did not have that belief for the required period of ten years, I need not consider whether such belief was reasonable. In my judgment, Mr Lory did have the belief that he the land belonged to him. The Disputed Land, as I have held, physically formed part of the South Field when he rented it from the Respondent between 1993 and 1995. Therefore, he was already renting it from the Respondent when he bought the North and South Fields. In his evidence before me, he said several times that he believed that he was buying the land which he was already renting. There is nothing in Mr Menashi’s statement to indicate that he discussed directly with Mr Lory the omission of the Disputed Land from the sale. He simply explains the reason why he wanted to retain it, since he felt that it might have some development potential. Having regard to the available evidence, such as it is, I am satisfied that Mr Lory was telling me the truth when he said that he believed that he was buying the Disputed Land, and that he has always held the belief that he owned the land.
17. I must now decide whether Mr Lory’s belief was reasonably held. No guidance is given in the 2002 Act itself, and, apart from other decisions of the Adjudicator, I am not aware of any judicial decisions on this issue. Certainly, neither Counsel was able to refer me to any authority. In my judgment, the use of the word “reasonable” denotes an obligation on the court or tribunal to look at the matter objectively. Clearly, if the only question was whether the Applicant had the belief that he owned the Disputed Land, the standpoint would be entirely subjective. He could have a firm and settled belief which, on examination, was completely irrational. The reason for the introduction of the word “reasonable” must, in my view, introduce the element of objectivity into the exercise. What then are the objective facts which may have a bearing on the reasonableness of Mr Lory’s belief? First, as I have said, Mr Lory had been renting the Disputed Land for several years as part and parcel of the South Field. Secondly, it would seem that Mr Menashi himself did not specifically draw the omission of the Disputed Land to Mr Lory. Thirdly, it is clear that the contract preceding the Transfer excluded the Disputed Land. This appears from the Report on Title dated 4th September 1995 which was prepared for Mr Lory by his solicitors. This describes the property being sold as “43 acres of land on the north and south sides of Barnes lane, Kings Langley which is shown edged pink on the plan marked “A” hereto”. The plan is to a scale of 1:2500. However, even a cursory glance at it reveals that the Disputed Land is excluded from the pink edging. Furthermore, the included land is hatched or shaded, whereas the Disputed Land is unshaded and surrounded by a separate black (not pink) line. Since the Disputed Land is a spur which runs up between the dwellings on either side, it is immediately apparent that it is outside the intended boundary line. It may be noted that the verbal description is by reference to the plan, as opposed to some other formulation. Fourthly, the Disputed Land is included within the red edging of the filed plan for HD125900 – the Respondent’s title out of which the North and South Field was transferred. However, it is also the case that the title includes other land – Barnes Farm itself, for instance – which was excluded from the sale. Fifthly, the Transfer plan, which was signed by Mr Lory, is another version of the plan on the Report on Title, and was presumably the plan used for the preceding contract. The land is described as “part of the land comprised in the above mentioned title….”. Again, a glance at the plan reveals that the Disputed Land is excluded from the sale. Sixthly, the Transfer itself contains a covenant by Mr Lory “for the benefit of the Transferor…..and the Transferor’s retained land”. This necessarily alters the purchaser to the fact that part of the registered title is being retained. Finally, there was no covenant to fence off the Disputed Land, and there was no fence separating it from the South Field.
18. Having regard to the facts that I have mentioned, and all the circumstances of the case, I have reached the conclusion that Mr Lory’s belief that he had bought the Disputed Land – and therefore that he owned it – was not reasonably founded. He can of course pray in aid the fact that he had been renting the land prior to the sale, and the fact that it formed part of and was contained within the boundaries of the South Field. The Transfer contained no fencing covenant. This no doubt explains Mr Lory’s belief: indeed, in the absence of these factors, he would not have had the belief at all. However, I cannot accept that it was reasonable for Mr Lory, as purchaser, simply to assume that everything he had been renting since 1993 was necessarily included in the Transfer. There were at least three occasions when he could and should have realised that the Disputed Land was not included – when he saw the contract plan, the Report on Title and the Transfer plan, which he actually signed. The boundaries of the plot as shown on the plans were not in any way obscure, and left no room for doubt with regard to the Disputed Land. He was buying the land by reference to the plan, and he must have some responsibility to check that he was actually buying that which he believed. It is a fairly basic precaution, and it was not in my view reasonable for him to ignore the clear terms of the plans which formed the basis of the transaction.
19. I shall therefore direct the Chief Land Registrar to cancel the Applicant’s application dated 28th March 2008. With regard to costs, the Respondent has succeeded in its objection, and it might seem appropriate to award it the costs of the adjudication. However, since I have held that the Applicant was in adverse possession of the Disputed Land for more than ten years, the Respondent has failed to make good its challenge to the Applicant on this issue, which, in terms of the time spent at the hearing, and the evidence generally, was the principal discrete issue. Furthermore, I regard the Respondent’s evidence with regard to the alleged fence as unsatisfactory, if I may use that relatively neutral phrase. In all the circumstances, I am minded to make no order as to the costs of the adjudication, notwithstanding the outcome. However, I will allow the parties the opportunity to make written submissions to me, to be filed and served on or before 5 pm on 20th November 2009, with any response to be received by 27th November 2009.
Dated this 11th day of November 2009
BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY