REF/2009/1177

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

(1)   DENNIS CROSDIL

(2)   CHRISTINE CROSDIL

Applicants

and

 

 

BERNARD JOHN HODDER

 

Respondent

 

 

Property address: Land on the North West side of Grouse Road, Colgate, Horsham, West Sussex­

Title Number WSX224423

 

Before Ann McAllister, sitting as Deputy Adjudicator

Victory House,

London

7 March 2011

 

Representation: Both parties appeared in person.

 

 

 

DECISION

 

Adverse possession – whether title extinguished by 1984 – application to rectify or alternatively under Schedule 6 to the Land Registration Act 2002 – whether conditions in paragraph 5 met

Cases referred to: Powell v MacFarlane (1977) 38 P&CR 452, J A Pye (oxford) v Graham (2002) UKHL 30, Davies v John Wood Property PLC (REF 2008/0528)

Introduction

 

1. This case concerns the ownership of some two acres of land to the north west of Grouse Road, Colgate, Horsham (‘the Land’). The Land is registered in the name of the Respondent, Mr Hodder, under title number WSX224423. The Land is adjacent to, and used with, land purchased by the Applicants, Mr and Mrs Crosdil, in 1995, and registered in their names under title number WSX160528 (‘the Neighbouring Land’) which also comprises some two acres. The two plots run parallel from the road to woods in strips some 100ft wide.

 

2. Mr and Mrs Crosdil made two applications in relation to the Land. The first, dated 16 December 2008, is an application pursuant to paragraph 1 of Schedule 6 to the Land Registration Act 2002. This is a claim based on adverse possession of the Land for (at least) 10 years prior to the date of the application. The second application, dated 25 March 2010, is an application to close title WSX224423 on the grounds that title had been barred by section 15 of the Limitation Act 1980 in 1984.

 

3. The history of the ownership of the Land and the Neighbouring Land, set out below, will further clarify why it was thought necessary to make these two applications. For the reasons I will give, I will order the Chief Land Registrar to give effect to the second application. I will also order that their title should be upgraded from possessory to absolute (as I understand it, this would happen in any event). In so far as it may be necessary I also find that, in the alternative, the Crosdils have acquired title to the Land by adverse possession.

 

4. The first application was referred to the Adjudicator on 21 September 2009. The second application was referred on 8 July 2010. By order dated 19 July 2010, it was ordered that both matters be heard together. I had a site view on 20 December 2010.

 

 

 

Relevant history.

 

5. 0n 13 June 1991 Charles James Simpson made a statutory declaration in support of his application for title to the Land by adverse possession. He had purchased the Neighbouring Land on 17 November 1972. He deposed to the fact that he mistakenly believed that he had also purchased the Land and that he had occupied both parcels as one plot since that date. There was no dividing fence or boundary between the two plots. In 1977 an offer was made to him to purchase both plots. He continued to enjoy full and undisturbed possession of both plots (and applied for planning permission to develop both plots in 1973, 1976 and 1985) until he transferred the Neighbouring Land by deed of gift to Maxine McGill on 20 December 1990.

 

6. The Land Registry registered Mr Simpson with possessory title on 19 June 1991. The Land was given title number WSX163757. The decision was made following an inspection. The Land Registry surveyor reported that he did not meet Mr Simpson (who lived in Battersea) but that he spoke to a nearby farmer (at Lower Grouse Farm) who had an informal grazing licence with Mr Simpson, and who had no doubt that the Land belonged to Mr Simpson.

 

7. Mr and Mrs Crosdil purchased both the Land and the Adjacent Land in 1995. Both parcels were advertised as one plot by H.J.Burt & Son. Mr and Mrs Crosdil were registered as proprietors of title number WSX163757 on 30 January 1995. The paper title to the Land belonged to Mr Eric Wilfred Massey who died in April 1997. Wace Morgan, as executors of his estate, applied to the Land Registry to have the Land registered in their names, relying on a conveyance dated 24 January 1957. Hamptons were instructed to value the Land but at first were unable to locate it, inspecting it Land in March 1998 and again in September 2000. In the second report the writer notes that three planning applications had been made by Mr and Mrs Crosdil between 1996 and 1999 relating, at least in part, to the Land. It is also stated that the owners of the Neighbouring Land might be using, again in part at least, the Land. I mention these points specifically because Mr Hodder relies on these reports in support of his case. It seems to me, however, that, if anything, these reports bear out the evidence given by Mr and Mrs Crosdil. Finally, I should mention that the Land was valued at £10,000 as at 1997.

 

8. Following the application by the executors, a survey was carried out by the Land Registry which showed that the Land and the Neighbouring Land appeared to be occupied together, for the purpose of housing pigs, geese and ducks. There was no evidence of any former features separating the two parcels of land. Both parcels were surrounded by post and wire fences, and access could only be gained through a padlocked gate from the road.

 

9. Mr and Mrs Crosdil instructed solicitors, Grant Bott & Co, to object to the application. On 23 August 1999 the Land Registry wrote to the solicitors stating that they intended to close the title on the ground that the view had been taken that neither the Crosdils nor their predecessors had been in possession A chasing letter was written on 24 December 1999. Grant Bott & Co did not reply to these letters, nor did they inform their clients that their title would be closed unless they put forward arguments to the contrary.

 

10. The Land was registered in the name of Eric Massey’s personal representatives on 4 April 2000. Title passed to Frank Massey who died in 2003 and subsequently to Mr Hodder on 4 November 2004. In 2004 The Bott Partnership sent, on request, the land certificates relating to the Land and neighbouring Land to Mr And Mrs Crosdil. They did so without any reference to the earlier correspondence between them and the Land Registry. In 2007 the Law Society intervened in their practice.

 

11. As is clear from the evidence set out below, nothing changed on the ground. The Land and the Neighbouring Land continued to be used exclusively by Mr and Mrs Crosdil. It is not suggested that Mr Frank Massey (who was very elderly) ever went to the Land. Mr Hodder was not able to locate the Land until 2007.

 

12. In October 2007 Mr and Mrs Crosdil, unaware that possessory title had been closed, applied to upgrade the title to absolute. A manuscript note on the application form records as follows: ‘ An application to amend the register was made in June 1998 against which we made a formal objection (this was recorded) No rectification was made and our names still continued to be registered as the proprietors.’

 

13. This application was rejected by the Land Registry who informed them that (contrary to what they (reasonably) believed the position to be) their possessory title had been closed. At about this time Mr Hodder instructed solicitors and threatened possession proceedings against the Crosdils. As appears below, this is when he first became aware of the Crosdils’ occupation of the Land. This led to the first application to the Land Registry referred to above. The Crosdils attempted to locate Mr Bott, and discovered the Law Society intervention.

 

Evidence

 

14. I heard evidence from Mr and Mrs Crosdil, their daughter Rebecca, Mr Highams (Mrs Crosdil’s father) and Janice Hounslow (Mrs Crosdil’s sister). I have no hesitation in accepting the entirety of their evidence. They have occupied both the Land and the Neighbouring Land as one plot since 1995, and have done so to the exclusion of all others. At first both parcels were used for pasturage, and paddocks for horses and sheep. In later years, Mr and Mrs Crosdil built up a herd of rare pigs, and for a while Mrs Crosdil was the secretary of the Oxford Sandy & Black Pigs Society. Today both parcels of land are home to pigs, sheep, geese, chickens, ducks and guinea fowl.

 

15. The Land and the Neighbouring land are fenced with post and wire fence. The main access is through a gate leading to the road which is kept padlocked at all times. There is a sign making it clear that it is private property, stating that no unauthorised persons are allowed past that point. No-one has (or has ever had) access to the land (that is to say both parcels) other than the Crosdils.

 

16. In 2006 the Crosdils registered with the Great Britain Poultry Register. In 2007, when there were fewer chickens, a vegetable patch was constructed on part of the chicken run. There is also a Defra approved isolation unit on the Land, as well as a number of pig arcs. In 1995 an application for planning permission to erect a barn on the Neighbouring Land was made, and eventually granted 4 years later. On average Mrs Crosdil visits both parcels 3 or 4 times a week in winter and 5 times a week in summer.

 

17. Mrs Crosdil explained that she believed that her solicitors had successfully objected to the application to close the possessory title, and was very surprised to discover, in 2007, that their title had been closed. Grant Bott had sent them the deeds in 2004 because they were moving offices. She did not know that the paper title had been held by the Massey brothers. Mr Crosdil confirmed the evidence given by his wife.

 

18. Mr Highams stated that he helped his daughter and son in law repair the fences in 1995 to make it completely stock proof. Since then he has helped to repair and maintain the structures on both parcels of land, fencing etc. Mrs Hounslow also confirmed the evidence given, and recalls that in 1994 both parcels of land were in a dilapidated state. She was never aware of the fact that there were two parcels of land.

 

19. Rebecca Crosdil 1s 21 and a student. She too was not aware that there were two separate titles: so far as she was concerned there was one single plot. Between 1995 and 2005 she had a pony on the land. Almost every day during her school, college and university holidays and on free weekends she helped look after the livestock and generally help to maintain both parcels of land.

 

20. Mr Hodder very fairly accepted that he was not in a position to challenge the evidence as to user given by and on behalf of Mr and Mrs Crosdil. He was close to Eric Massey who had effectively brought him up when he was a child. After the Land was transferred to him in 2004, he made an initial, and unsuccessful, attempt to locate it. When he did locate the Land in 2007, he was unable to gain access. He saw a track going down the middle of both parcels, but no animals. The local farmer told him, however, that animals were kept there.

 

Legal Analysis

 

21. As explained above, the Applicants put their case in one of two ways. The first way is this. On the evidence, Mr Massey’s title was barred in 1984, 12 years after Mr Simpson took up occupation of the Land. This being the case, it was not open to the Land Registry to register the executors of Mr Massey’s estate as owners in 2000.

 

22. In my judgment this analysis is correct. The matters deposed to in Mr Simpson’s statutory declaration, taken with the Land Registry survey, clearly demonstrate, in my view, that Mr Simpson was in exclusive occupation of the Land between 1972 and 1984, and, indeed, thereafter. The fact that he mistakenly believed that he had purchased the Land in 1972 merely strengthens this conclusion, as does the fact that he applied for planning permission in 1973, 1976 and 1985. As I have said above, an offer was made to Mr Simpson in 1977 to buy both plots as one. It has never been suggested that anyone else at any material time occupied the Land, and it is clear that the owners of the nearby farm always believed that the Land belonged to Mr Simpson (and subsequently the Crosdils).

 

23. As is well known, the definition of factual possession set out in the judgment of Slade J in Powell v McFarlane (1977) 38 P&CR 452 was cited with approval in Pye v Graham [2002] UKHL 30. Of particular relevance is the following: ‘ The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed….Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it, and that no-one else has done so.’ Applying this test, Mr Simpson was plainly in factual possession. He also had the necessary intent to possess.

 

24. If I am wrong about that, then the question becomes whether Mr and Mrs Crosdil can succeed under Schedule 6 to the 2002 Act. By paragraph 1, a person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession for the period of ten years ending on the date of the application. In this case, therefore, the Crosdils must show that they have been in adverse possession since (at least) December 1998. By paragraph 11(1) adverse possession is given the same meaning as the former provisions under the Limitation Act 1980.

 

25. There is, however, an additional hurdle to be overcome. In the event that he is required to do by the registered proprietor, as is the case here, the applicant must satisfy one of the three conditions set out in paragraph 5 of Schedule 6.

 

26. The two conditions relied on by the Crosdils are the following:

 

5(3) The second condition is that the applicant is for some other reason entitled to be registered as the proprietor of the estate

5(4) The third condition is that –

(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 application.

 

27. There is little authority on either of these two sections. The Crosdils argue that the second condition is met because (i) they purchased the Land in 1995 (ii) Mr Massey’s title had been extinguished in 1984 (iii) they were unaware that their possessory title had been wrongly cancelled.

 

28. The difficulty with this argument is this. If the Crosdils are right in saying that Mr Massey’s title was extinguished (as I have held) they do not need, in view of their second application, to rely on Schedule 6. The position might, of course, be different if the only application before me was under Schedule 6.

 

29. If, on the other hand, title had not been extinguished in 1984 (or at any time before the Land Registry closed the possessory title) is it sufficient for this condition to be satisfied that the Crosdils believed they were purchasing a possessory title in 1995? And is it material that they did not know the true position until 2007?

 

30. It is worth noting that para 14.43 of the Law Commission Report No 271 (2001) gives two examples where the condition might be satisfied. The first is where the applicant is entitled to the land under the will or intestacy of the deceased proprietor but is on the land without the consent of the deceased’s personal representatives, and the second is where the applicant contracted to buy the land and paid the purchase price, but the land was never transferred to him. It can of course be said that in both these instances the claimant or applicant can obtain a remedy without having to rely on adverse possession. But the examples given tend to suggest that this condition was intended to be interpreted narrowly.

 

31. On balance I have come to the view that, if Mr Massey’s title had not been barred by Mr Simpson, this condition is not made out.

 

32. However, I do find that the third condition is made out. The Land is plainly adjacent to the Neighbouring Land belonging to the Crosdils. The exact line of the boundary between the two has not been determined under section 60 of the 2002 Act.

 

33. Mr and Mrs Crosdil reasonably believed that the Land belonged to them. This belief was reasonably and genuinely held until they were informed by the Land Registry in late 2007 that their title had been closed. Indeed, it might be said that it continued to be held beyond this date since their primary case is that the paper title was extinguished in 1984. It seems to me clear that ‘belonging’ (which is not defined in the Act) includes ownership of a possessory title: a possessory title is a class of freehold title: see section 9(1)(c) of the 2002 Act, Finally, on this point, the reasonable belief needs to last for at least 10 years, but there is no requirement that the belief should persist up to the date of the application (see Davies v John Wood Property Plc REF 2008/0528 at para 48)

 

34. The fourth requirement for this condition to be met is that the estate to which the application relates was registered more than one year prior to the date of the application. This is the case here.

 

Conclusion

 

35. Mr and Mrs Crosdil succeed in relation to both applications. I will order the Chief Land Registrar to rectify the title of the Land to show them as registered proprietors with absolute title.

 

36. This leaves the question of costs. In principle it seems to me that the Crosdils are entitled to their costs. I have seen a schedule prepared by Thring Townsend (who have advised the Crosdils throughout) dating from May 2007. My jurisdiction is limited to costs incurred since the date of the reference (in this case 21 September 2009). The schedule will therefore have to be redrawn (and provide the level of detail set out in Form N260 or the like). The new schedule is to be served and filed by 21 April 2001. Mr Hodder may make such representations or objections as he considers appropriate by 13 May 2011. I will then consider what order to make.

 

BY ORDER OF THE ADJUDICATOR

 

 

ANN McALLISTER

 

Dated this 1^st day of April 2011