REF/2010/1066

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

1. IAN MICHAEL OSBORNE
2. BARBARA LINDA OSBORNE

 

APPLICANTS

 

and

 

1. MARY LAWTON
2. ROBERT NOYES
3. RICHARD SANDFORD-FAWCETT

 

RESPONDENTS

 

Property Address: Land on the north west side of 12 The Close, Charlton Marshall, Blandford Forum

Title Number: DT379490

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

 

Sitting at: Victory House

On: 8 March 2011

___________________________________________________________________________­

 

 

Adverse possession under paragraph 5(4) of Schedule 6 to the Land Registration Act 2002. Disputed land fenced in as part of the garden of the house being bought by the Applicants. Reasonableness of Applicants’ belief that the disputed land was part of the property which they bought.

 

1. This decision is given without a hearing at the request of both parties. I am satisfied that there is no important public interest consideration that requires a hearing in public.

 

2. For the reasons given below I shall direct the Chief Land Registrar to give effect to the application of the Applicants dated 4 June 2010.

 

3. The Applicants are the registered proprietors of 12 The Close, Charlton Marshall, title no. DT379490, which is their home. This is an application in form ADV1 under section 97 and paragraph 1 of Schedule 6 to the Land Registration Act 2002 for the Applicants to be registered as proprietors of a small area of land at the end of their garden which appears at present to fall within the registered title of the Respondents although it is not in dispute that it has been enclosed as part of the Applicants’ garden and used as part of that garden since at least 1986 (see the statutory declaration of Dorothy Winifred Pullen dated 18 November 2010). Mrs. Pullen is the next door neighbour of the Applicants. In those circumstances, and as there is no dispute as to any of the facts, it would appear to be the case that, at latest, by 1998 the Applicants (who acquired their property in 1996) will have acquired a possessory title under the pre-2003 law, so that an application under paragraph 1 of Schedule 6 to the 2002 Act based on 10 years possession since 1996 was strictly unnecessary.

 

4. That is, however, the basis of the application, and I shall deal with it. The Applicants rely on paragraph 5(4) of Schedule 6. The Respondents concede that three of the four requirements of that paragraph are satisfied. They also accept that the Respondents believed for the requisite 10 years period that the disputed land belonged to them. The only issue is whether that belief was a reasonable one.

 

5. The Respondents submit that for the belief to be reasonable the Applicants must have taken reasonable steps to ascertain the correct position. In this case, it is said, the obvious check would have been a simple check of the boundaries against the title plan which would have demonstrated that the boundary was in the wrong position. The title to the Applicants’ property was registered and their solicitors would have had a copy of the title plan as part of their pre-contractual due diligence. That would not have been part of the title deeds sent to the Applicants’ mortgagees. The Respondents refer to paragraph 10.11 of the Conveyancing Handbook published by the Law Society which states that the client should be advised to inspect the property and look for and report a discrepancy or uncertainty over the identity or boundaries of the property, and that it is useful for the client to take a plan of the property with him in order to check its accuracy. Had they done so, it is said, they would have been aware that they did not own the disputed land and for this reason their belief, however honest, is not reasonable.

 

6. There is no allegation that the Applicants actually did receive such advice or a copy of such a plan from their solicitor. Nor does the Conveyancing Handbook say, at least as quoted, that the solicitor had a duty to give such a plan to the client. The boundary fence was obvious on inspection and it was obvious that the disputed land was being used as part of the garden and had been for some time. There is no suggestion that standard pre-contract enquiries as to boundaries did or might have drawn attention to any problem. Thereafter the Applicants occupied their home, including the disputed land, for well over 13 years before anybody suggested that they might not own the disputed land.

 

7. In my judgment, a person who buys a home with a garden is acting reasonably in the ordinary case if he proceeds on the basis that what you see is what you get. It may be different if he is warned of a problem or if the boundary appears uncertain, or if some discrepancy is pointed out to him by his solicitor, or if he actually checks the title plan and notices a discrepancy. But Land Registry title plans carry a warning that they show general boundaries only and not the precise boundary line, and they frequently do not coincide precisely with the actual boundary.

 

8. In this case there is no suggestion that the discrepancy was noticed by the Applicants or pointed out by their solicitors. The boundary appeared clear from the fencing. The previous owner had been there some time and there is no suggestion that any problem was indicated by any pre-contract enquiries. Further, by the time a question was raised in May 2010, the Applicants had themselves been in occupation for over 13 years without a problem. If there was any issue with the boundaries, they could reasonably have expected it to have been drawn to their attention by the Respondents’ predecessors within a relatively short time of their arrival.

 

9. The question is not whether a better-informed or advised person might have come to a different view. It is whether the Applicants’ belief was reasonable or unreasonable. In all the circumstances, I am satisfied that it was clearly a reasonable belief from the start of their occupation, and it was all the more clearly reasonable by May 2000, after over 3 years of occupation without any hint of a problem, a situation which continued until May 2010. Accordingly, insofar as they did not already have a possessory title under the old rules, they have now acquired one and should be registered accordingly.

 

 

By Order of The Adjudicator to HM Land Registry

 

 

dated the 8^th day of March 2011