REF/2010/1166

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

BETWEEN

 

(1)   MICHAEL ABBS

(2) RACHEL MARIE HOEY

 

Applicants

and

 

(1)   EDWARD JAMES ELDRIDGE

(2)   JOANNA CLAIRE ELDRIDGE

Respondents

 

 

 

Property Address: Land on the South East Side of Corseley Road, Groombridge

Title numbers ESX329614 and ESX33021

 

 

Before: Ann McAllister sitting as Deputy Adjudicator

Victory House, London

23 August 2011

 

 

Representation: The Applicants were represented by Philip Sissons of Counsel instructed by Stitt & Co; the Respondents by Matthew Cannings of Counsel instructed by DWF LLP

 

Application for first registration of land – objection based on adverse possession – whether application for first registration is ‘action for recovery of land’ – consideration of provisions of Limitation Act 1980 and Land Registration Act 2002

 

 

DECISION

 

Introduction

 

1. The Applicants are the registered owners of property known as Hodges Wood, Groombridge, East Sussex. Hodges Wood was purchased by them in 2004. The Respondents are the owners of a property to the east of Hodges Wood, known as West Glen Andred. They purchased this property in August 1998. Between these two properties lies an area of (mainly) woodland comprising some 1.8 acres. This is the land in issue in this reference. I will refer to it as the Disputed Land.

 

2. The Applicants purchased the Disputed Land from the estate of the late Mrs Kimpton for £16,000 on 7 May 2010. On 14 May 2010 the Applicants applied for first registration of the Disputed Land. The Respondents objected on 4 June 2010 on the grounds that they, and their predecessors, had been in adverse possession of the Disputed Land for 12 years. On 18 June 2010 the Respondents lodged a competing application for first registration. It is their case that, by virtue of ss.15 and 17 of the Limitation Act 1980, they have extinguished the paper owners’ title.

 

3. The matter was referred to the Adjudicator on 10 November 2010. I had the benefit of a site visit on 22 August 2011.

 

4. During the course of the hearing a point was taken on behalf of the Respondents which led, on my direction, to further written submissions by both parties. The point is this. The Applicants’ case is that time stopped running for the purpose of the Limitation Act when they applied for first registration of the Disputed Land, alternatively when the Respondents objected or when they in turn applied for first registration. On this analysis, the Respondents can only succeed in their claim for adverse possession if they and their predecessors were in possession since either 14 May 1998 or 18 June 1998. The Applicants argue that, as their no evidence of any acts of possession by the Respondents’ predecessor in title (Mr and Mrs Oglethorpe), and as the Respondents only moved into Glen Andred West on 10 August 1998, their claim must necessarily fail.

 

5. The Respondents submit that time did not stop running on 14 May 1998 or 18 June 1998 since neither application (nor their objection to the application made by the Applicants) is ‘an action to recover land’ within the meaning of section 15(1) of the 1980 Act. It is also their case, that, in any event, there is evidence before me from which I can infer that the Disputed Land was adversely possessed by the Applicants’ predecessors in title.

 

6. I will deal with this point first, before turning to the evidence.

 

 

Section 15 of the Limitation Act and sections 96 and 97 of the Land Registration Act 2002

 

7. For the reasons set out below, it seems to me that this point requires me to consider not simply the provisions of the Limitation Act 1980 (‘the 1980 Act’) but, more pertinently, the effect of the provisions of sections 96 and 97 of the Land Registration Act (‘the 2002 Act’).

8. I will begin by examining the 1980 Act. Section 15(1) provides as follows: ‘No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to person through whom he claims, to that person.’

 

9. Section 17 provides that once the period prescribed by the Act has expired for any person to bring an action to recover land, the title of that person to the land shall be extinguished.

 

10. Section 38(1) provides that, unless the context otherwise requires, ‘action’ includes any proceeding in any court of law, including an ecclesiastical court. By section 38(7) ‘References in this Act to a right of action to recover land shall include references to a right to enter into possession of the land….. and references to the bringing of such an action shall include references to the making of such an entry…’

 

11. The issue is therefore whether the application made by the Applicants for first registration (or indeed the application made by the Respondents) is an ‘action to recover any land’. It seems to me that, as a matter of ordinary language, and having regard to authority, the answer is no.

 

12. In J A Pye (Oxford) Ltd v Graham [2000] All ER (D) 134 Neuberger J, as he then was, held that neither an application to warn off cautions, nor an originating summons to warn off the cautions could be described as ‘an action to recover land’.

 

13. He accepted that proceedings brought by an originating summons are an ‘action’ within the extended definition in section 38. It seems to me, too, that a reference to the Adjudicator is an ‘action.’ The Adjudicator exercises judicial functions (Chief Land Registrar v Silkstone [2011] EWCA Civ 801), (as does the Lands Tribunal (Hillingdon London Borough Council v A.R.C. Ltd [1999] Ch 139).

 

14. Neuberger J considered the earlier authorities of Walters v Webb LR 5 Ch.App. 531 and Vadeleur v Sloane [1919] I.R. 116, and held that they did not assist, since in neither case was it open, for various reasons, to the plaintiffs to bring actions for possession. In this case, of course, there was nothing to stop the Applicants seeking, in the County Court, both a declaration that they were entitled to be registered as owners of the Disputed Land and an order for possession against the Respondents.

 

15. At paragraph 78 of his judgment Neuberger J said this: ‘ In summary it appears to me that, in light of the extended definition of the word ‘action’, the natural meaning of section 15(1) is tolerably clear as a matter of ordinary language: it envisages proceedings in a court where the owner seeks (or perhaps specifically raises) his right to recover land……It does not cover proceedings, even though in a court, where the owner seeks relief which would not of itself involve him recovering possession of the land in question…’

 

16. Neuberger J recognised that there are powerful policy arguments against this construction, but concluded that these did not override the need to give section 15 its natural meaning. On appeal neither the Court of Appeal nor the House of Lords heard argument on, or dealt with, this issue.

 

17. In Adverse Possession (2^nd Ed) Stephen Jourdan QC and Oliver Radley-Gardner express the view that the date on which the registrar refers the matter to the Adjudicator should be treated as the date on which the action to recover land by the paper title owner is commenced. With respect to the learned authors, I do not agree. The determination of the question whether or not the Applicants (or the Respondents) are entitled to be registered as owners is not an action to recover land.

 

18. Mr Sissons submits, in the alternative, that the actions taken by the Applicants after they purchased the Disputed Land amount to the exercise of the right of re-entry, and that this self help remedy falls within the definition of ‘action’. I do not accept that the Applicants at any time took any action to recover possession of the Disputed Land after they purchased the land in 2010. I will come back to the evidence below.

 

19. This is not, however, the end of the matter. If, on the evidence, the Respondents had not barred the Applicants’ title by the time the Respondents applied for first registration (14 May 2010) the Applicants would be entitled to be registered as owners. The registration takes effect from the date of application.

 

20. By section 96 of the 2002 Act, no period of limitation under section 15(1) of the 1980 Act‘ shall run against any person, other than a charge, in relation to an estate in land… the title to which is registered’. The position is made clearer, if it needed to be, by section 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 where, by virtue of this section, a period of limitation does not run against him.’

 

21. In other words, on first registration, at any time after the coming into effect of the 2002 Act (13 October 2002) the provisions of the 1980 Act simply cease to have any effect. A squatter who cannot show 12 years adverse possession by that date can only rely, if at all, on the provisions of Schedule 6 to the 2002 Act.

 

22. In essence, the 2002 Act allows an application to be made by a squatter if he can show that he has been in adverse possession for a period of ten years ending on the date of the application. If the paper title owner requires that the application be dealt with under paragraph 5 of Schedule 6, the squatter faces an additional hurdle. He must be able to show that he can bring himself within one of the three gateways there set out: the first is that it would be unconscionable because of an equity by estoppel that he should be dispossessed; the second is that the squatter is entitled to for some other reasons to be registered, and the third is that the land in dispute is adjacent to land belonging to the squatter, that there has been no determined boundary and that for at least 10 years the squatter reasonably believed that the land belonged to him. I have simply set out the conditions in outline because, of course, these provisions would only come into play if a) I were to find that the Respondents or their predecessors had not been in adverse possession for 12 years prior to 14 May 2010 and (b) a fresh application were to be made by the Respondents relying on their continued possession of the Disputed Land beyond that date.

 

23. On the basis of the evidence, however, it seems to me that it would be fair to say that the Respondents would face considerable difficulties in establishing any one of the three conditions.

 

24. In short, therefore, the position is this. If the Respondents can show that they were in adverse possession by the time the Applicants applied for first registration, the Applicants’ application will fail, and the Respondents application will succeed. If the Respondents cannot establish this, then the question is not whether time continues to run against the Applicants under the 1980 Act, but whether, on a fresh application, the Respondents could succeed under the provisions of the 2002 Act.

 

Background and evidence

 

25. The root of title to the Disputed Land is a conveyance dated 6 November 1972 between Willie Alfred Kimpton and Norma Yvonne Kimpton. The Disputed Land is identified by reference to a conveyance dated 29 September 1958 made between Jennifer Anne Estate and the vendor. By this conveyance Willie Kimpton purchased Old Birchden Farm (comprising some 18 acres) and the Disputed Land. A report on title prepared for the Applicants by their solicitors identifies the Disputed Land, and it seems to me that, subject only to the question as to where exactly the boundary between the Disputed Land and the Respondents’ land lies, there is no doubt but that the Applicants have acquired paper title from the estate of Norma Kimpton.

 

26. Mark Ballard, whose parents owned Hodges Wood before the Applicants, gave evidence that at some point between 1995 and 1997 Mr Oglethorpe (the then owner of Glen Andred West) erected a fence along the roadside (that is the northern side) of the Disputed Land. Mr Oglethorpe had owned Glen Andred West, it seems, since 1965. Mr Ballard believes that he was concerned about the security of the Disputed Land. He also stated that his mother and he replaced the existing dilapidated fence between Hodges Wood and the Disputed Land in 1999/2000. Before that date it was possible to gain access to the Disputed Land by scrambling over the fence and through the dense vegetation. The original fence, he said, had been there since 1949. It was never thought that the Disputed Land belonged to Hodges Wood: at some point Mr Ballard was under the impression that it formed part of Glen Andred West (or at least part of it did), whilst his mother believed that it might have been part of Old Birchden Farm to the south. So far as he was aware little use was made of the Disputed Land, but he said that it was difficult to see into the land from Hodges Wood.

 

27. The Respondents saw Glen Andred West and the Disputed Land for the first time on 8 May 1998. Mrs Eldridge keeps a daily diary, and accordingly has an accurate record of her family’s involvement with their property and the Disputed Land. This is how she can be clear as to the date. I found her to be a scrupulously honest witness. She recalls looking around all the land, including the Disputed Land, on the occasion of her first visit. The Disputed Land begins somewhere beyond the area previously occupied by a tennis court which is sunk into the ground: there are steps leading first to a cleared area, and then to fairly dense woodland, leading finally to an area of thick Japanese knotwood by the fence with Hodges Wood. There was nothing on the ground to show any kind of boundary between Glen Andred West and the Disputed Land and the Respondents believed at the time of purchase that the sale of Glen Andred West included the Disputed Land.

 

28. By order dated 23 May 2011 the Respondents were ordered to file and serve a further witness statement dealing with the purchase of Glen Andred West, and stating what steps had been taken to contact the solicitors acting for them. Mrs Eldridge contacted the solicitors who had then acted for them (Tollers of Corby) who wrote saying that their file had been destroyed in 2008. The Respondents do not have any other papers relating to the purchase in their possession.

 

29. The Disputed Land was and remains accessible only from Glen Andred West. It was and is fenced on the north (by the road), where there is also particularly dense undergrowth, on the south (dividing the land from Old Birchden Farm) and, as I have said, by a fence and dense vegetation between the Disputed Land and Hodges Wood. I accept the evidence that the fencing on the south (until 2005) consisted of iron railings and wire likely to have been erected in 1949 when the Farm was separated from what was then Glen Andred House. In 2005 the owners of the Farm erected stock proof fencing to keep the sheep in. This was done, I find, after discussions with the Respondents.

 

30. On 8 May 1998 Mrs Eldridge noted that there had been bonfires on the Disputed Land, and that there had been some logging of wood. Mr Eldridge gave evidence that the house itself was in a poor state when they visited on 8 May, whilst the garden and land was in a better condition. The estate agent remained with the vendor (Mrs Oglethorpe) whilst they explored the grounds. He tried to establish the extent of the land to be bought by reference to the existing fences. He was told by the vendor that the fencing on the southern side (enclosing, in part, the Disputed Land) had been there for very many years. He noted that some work had been done to maintain the Disputed Land: some of the land had been cleared; the paths had been kept free; and there were signs that bonfires had been made there. Contracts were exchanged on 30 July 1998, and the family moved in on 10 August 1998.

 

31. Mrs Eldridge’s father, Mr Feakes, visited Glen Andred West and the Disputed Land on 14 May and 12 June 1998. He is an architect, and was helping his daughter and son in law with planning and listed building consent to carry out various repairs and alterations. His evidence is also to the effect that there was nothing to indicate, on the ground, that the Disputed Land did not form part of Glen Andred West, and that access could only be gained to the land from Glen Andred West. He realised, however, that the Disputed Land was not par t of the land conveyed because the acreage was wrong. He informed the Respondents of this. The effect, it seems clear to me, is that they were aware from very early on that the Disputed Land did not form part of their paper title.

 

32. The Respondents, I find, used the Disputed Land in a variety of ways. They have maintained the fence by the road; sprayed and burnt the knot weed; removed dead and diseased trees; kept paths cleared; had numerous bonfires; coppiced hazel trees, and planted lime trees (these last activities are confined to the area closest to their own land). In addition, as is clear from the diaries, the Disputed Land has been used for various childrens’ activities such as treasure hunts, games, and camping by the Respondents’ children and their friends. The diaries (which are not intended to be comprehensive) show some 25 separate events involving children on the Disputed Land since 1988. There is an aerial slide and a swing, again close to their own land. There is also a water bowser on the land which can only be moved with a tractor. This has been there for a number of years. The Disputed Land has been allowed to remain as woodland, and has been largely used as such. Some of the trees fell in the 1987 storm, but have been left as they are not dead.

 

33. Mr Eldridge stated that he did some work to the fence along the road every year. He too said that no-one elase had access to or used the Disputed Land. He referred to the fact that itinerant workers came round and asked if they could do work on the Disputed Land, as they had done work in the past. Again, I fully accept his evidence.

 

34. On behalf of the Respondents, I also heard evidence from Alison Beck and read the (largely unchallenged) evidence of Mr Beck and Mr Bishop. All three have known the area for over 20 years, and confirm that so far as they were aware there was no access to the Disputed Land from Corseley Road.

 

35. The Applicants purchased Hodges Wood in 2004 and erected stock proof fencing on the boundary with the Disputed Land with rabbit fencing on the inside. This was done after having discussed the matter with the Respondents. It seems to be common ground that there was a discussion around this time as to whether the Respondents would sell part of the Disputed Land to the Applicants. I accept that after the purchase of the Disputed Land in 2010, the Applicants took some steps to clear the boundary on their side of the fence: I am not persuaded that they did much work, if any, on the Disputed Land. The vegetation and undergrowth is very dense.

 

36. On 4 February 2010 the Respondents gave permission to EDF’s contractors to enter the Disputed Land from their land in order to clear 4 metres on either side of the power lines. The instructions to the contractors asked them to leave a screen to neighbours (the Applicants) and to stack the wood tidily. On 19 April 2010 the Applicants gave EDF consent to enter, it seems, the Disputed Land (but I note that entrance was through Birchden Farm). No evidence was given as to this agreement by the Applicants.

 

37. On 8 February 2010 Clifford Dann, surveyors, wrote to both the Applicants and the Respondents offering to sell the Disputed Land. Both made an offer. The Applicants offered £16,000 and the Respondents £5,000. The Respondents case is that this sum was not an offer to buy the land, still less an acknowledgement that they did not own the land, but rather an offer to buy the 1952 conveyance. I am not entirely sure that I follow this, but it is right to say that in an email in reply Mr Eldridge stated that he believed they owned the Disputed Land and in any event it is not the Applicants’ case that, by making this offer, the Respondents acknowledged title.

 

38. The surveyor made it clear to the Applicants that if they bought the Disputed Land they would do so in the knowledge that the Respondents might at some stage be in a position to claim possessory title. This point was also made in the replies to enquiries before contract. In the event the Applicants purchased the Disputed Land.

 

Legal Analysis

 

39. For the reasons set out above, the Applicants will succeed in their application for first registration unless the Respondents can show that they, and their predecessors, were in possession of the Disputed Land for 12 years prior to the date of application.

 

40. It is necessary to show both factual possession and the requisite intention to possess. The test is well known: it is set out in Powell v McFarlane (1977) 38 P&CR and approved by the House of Lords in JA Pye (Oxford Ltd) v Graham [2003] 1AC 419. The question of what constitutes a sufficient degree of exclusive physical control depends on all the circumstances, and in particular the nature of the land and the way in which it is commonly enjoyed. The question to be asked is: has the alleged possessor dealt with the land in the way in which an occupying owner would have done, and has anyone else done so? So far as intention is concerned, the issue is whether the alleged possessor has excluded everyone else, so far as reasonably practicable and so far as the law will allow. Equivocal acts are not sufficient.

 

41. Mr Sissons submits that, first, there is no evidence that the Disputed Land was in the possession of the Respondents’ predecessors in title, and second that, in any event, none of the acts of possession relied on by the Respondents are sufficient to establish the necessary degree of physical control.

 

42. I do not agree with either of these submissions. It seems to that there is clear and compelling evidence that the Disputed Land was not accessible to anyone other than to the owners of Glen Andred West for many years prior to May 1998. There was nothing on the ground in May 1998 to suggest any physical demarcation between the Disputed Land and Glen Andred West. The Disputed Land, mainly woodland, formed a natural continuation of the grounds of the house. The Respondents believed, on the occasion of their first visit, that they were buying this land. The nature of the land was and is such that it is an overwhelming inference that it had been in much the same condition for many years, and had been treated by the previous owners as part of their property.

 

43. Mr Oglethorpe, concerned about security, fenced the land along the roadway. This of itself is an indication that he treated the Disputed Land as an owner would do. There is no other readily discernible explanation, such as wanting only to safeguard a right of way. Fencing existed along the other two boundaries. There is no evidence that anyone else ever went on the land or laid claim to it: to the contrary, the evidence of Mr and Mrs Beck, and Mr Bishopp confirms that no-one else used it. It would be difficult to see why anyone else would wish to use or gain access to the Disputed Land. It was clearly not sold to Mr and Mrs Puckett when they purchased the Farm.

 

44. The Applicants further argue that none of the activities carried out on the Disputed Land by the Respondents, taken individually or collectively, amount to a sufficient degree of exclusive control. I remind myself that a key consideration is the nature of the land, and the use to which such land would ordinarily be put to. This is woodland, and maintained as such. Considerable work has been done to keep the Japanese knotwood under control, amongst other things. Where fencing needed repairing, it was repaired. The land is and has been used by family and friends for a variety of activities. In my judgment these activities denote an intention to possess, as well as physical possession.

 

Conclusion

 

45. For the reasons set out above I will order the Chief Land Registrar to (a) cancel the application made by the Applicants dated 14 May 2010 and (b) to give effect to the application made by the Respondents dated 18 June 2010.

 

46. So far as costs are concerned, the usual practice is that costs should follow the event. The Respondents therefore, subject to any argument to the contrary, are entitled to their costs from the date of the reference , namely 10 November 2010. A schedule in Form N260 or the like should be filed and served by 5 October 2011. The Applicants may make such representations or objections as they deem appropriate by 19 October 2011. I will then consider what order to make.

 

BY ORDER OF THE ADJUDICATOR

 

 

ANN McALLISTER

 

Dated this 21^st day of September 2011.