REF/2010/1203

REF/2011/0521

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

 

PETER BEZKOROWAJNY

 

APPLICANT

 

and

 

1. KEITH ERNEST JOHN DAWSON
2. RUTH LORRAINE DAWSON

 

RESPONDENTS

 

Property Address: Land on the south east side of Lime Street, Brightlingsea

Title Number: EX852613

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

Sitting at: Colchester County Court

On: 14 and 15 September 2011

 

Applicant Representation: Ms Tamsin Cox, counsel

Respondent Representation: Mr. Piers Harrison, counsel

___________________________________________________________________________­

 

 

Previous squatter held to have acquired possessory title to land. Current possessor in possession from before the death in 2003 of the previous squatter, initially on his behalf. Current possessor held to have been allowed to retain possession by the personal representative of previous squatter, with the intention that he should take it over from him, but no vesting assent to the land was executed. Paper title owner’s title held to have been extinguished as against the current possessor whether or not the current possessor was to be treated as a successor in title of the previous squatter.

 

Cases cited: Fairweather v St. Marylebone Property Company Limited, [1963] AC 510

Sze v Kung, [1997] 1 WLR 1232

 

1.      For the reasons set out below, I shall direct the Chief Land Registrar to give effect to the application of the Applicant dated 25 June 2010 as if the objection of the Respondents had not been made and to cancel the application of the Respondents dated 15 March 2011. In the absence of any other objection which may have been made in the meantime, this would involve the registration of the Applicant with a possessory title in view of the remote possibility of a claim to a superior possessory title by the estate of Eustace York Bolter.

 

2.      Lime Street Brightlingsea is an unmade road that runs for the most part roughly from north to south. It is said to have been part of an area of land that was laid out for housing development in Victorian times but was never developed. To the west are the gardens of houses in Tower Street, which runs parallel to Lime Street, and to the east are plots of ground which have been used over the years for various purposes including allotments. Behind many of those plots, including those with which this case is concerned is a field of over 8 acres which is part of a farm.

 

3.      The Applicant, Mr. B, has since 25 September 2003 been the registered proprietor of one of those plots (plot B), which is registered at HM Land Registry under title number EX714200. Immediately to the south of it is a track, Rope Walk, leading from Lime Street to the field. The evidence that I heard indicated that Rope Walk had been created in the 1940’s to replace an earlier access to the field that no longer existed. Immediately to the north of plot B is the plot which is the subject of this application (plot D). It is unregistered but title to it is claimed by the Respondents, Mr. and Mrs. D. Mr. B claims that he and his predecessor in title to plot B have adversely possessed plot D since at least 1980, so that any paper title Mr. and Mrs. D might have had has been extinguished.

 

4.      Immediately to the north of plot D is a further plot (plot C), which has been owned since January 1999 by Mrs. Josephine Crow, who gave evidence for Mr. B at the hearing. Plot C had been transferred to Mrs. Crow by Molly Beatty Woolvett.

 

Paper title to plot B

5.      Mr. B’s predecessor in title to plot B was Eustace York Bolter (“Mr. Bolter”). The plot, which has a frontage onto Lime Street of about 50 feet, and a depth of about 130 feet, was conveyed to Mr. Bolter by Michael Elias Wild by a conveyance dated 20 October 1965. Mr. Boulter was a retired sailor. He was born in 1910 and died in January 2003, just short of his 93^rd birthday. When he died, no will could be found, but there was a draft will in which he left his land in Lime Street to Mr. B. Those entitled on his intestacy agreed between themselves that Mr. B should have that land. Mr. B believed at the time that Mr. Bolter owned both plot B and plot D, for reasons which I shall deal with in relation to the possessory title claim, but it transpired that his paper title only extended to plot B and in due course, in August 2003, Mr. Bolter’s personal representatives executed an assent to that plot vesting in Mr. B. Following that assent, in September 2003, Mr. B was registered as proprietor of plot B.

 

Paper title to plot D

6.      Mr. and Mrs. D purchased what they claim to have been plot D from William Ambrose Day by a conveyance dated 30 August 1985 for £3000. The vendor was selling as personal representative of Herbert Elvin Day deceased. They had no real interest in this land but, as they stated in evidence, and as I accept, they were buying it to secure a sale to themselves of Mr. Herbert Day’s former home at 9 Tower Street. The land so conveyed was described in the conveyance as firstly land having a frontage to Lime Street of 14 feet with a depth on the north side of about 120 feet and on the south side of about 130 feet, and secondly land having a frontage to Lime Street of 20 feet with a depth on the north side of about 110 feet and on the south side of about 120 feet, “ALL which lands together are for the purposes of identification only shown edged red on the plan annexed hereto”.

 

7.      An ordnance survey plan was annexed to the conveyance on which the area edged red corresponds to plot C. There is no dispute but that the vendor had no title to plot C and was not seeking to sell it. The ordnance survey map used shows no division between plot B and plot D, which therefore appear as a single plot to the south of plot C and what is said by counsel for Mr. and Mrs. D to have happened is that the solicitor preparing the plan must have thought that the single plot to the south was only plot B and shown the land sold as the next plot to the north. Counsel for Mr. B suggested that it was not clear from the evidence either what plot Mr. Herbert Day owned or what was intended to be conveyed and that it could have been another plot to the north.

 

8.      The conveyance descriptions of the plot, other than the plan, correspond to the descriptions in a conveyance dated 17 July 1963 from Mary Day to Herbert Elvin Day of 9 Tower Street, where the land was also said to have been the land comprised in a conveyance dated 25 February 1919 from Thomas George Wellum to Mary Day.

 

9.      A number of other early conveyances were included in the trial bundle, and Counsel for Mr. and Mrs. D took me through them to attempt to show that plot D was clearly that conveyed to Mr. and Mrs. D. Bearing in mind my conclusions on the possessory title claim, I do not find it necessary to consider these conveyances in any detail. It is plain that Herbert Elvin Day lived in 9 Tower Street which was conveyed to Mr. and Mrs. D. It is plain that his personal representative was selling a plot of the measurements described and that the longest measurement of the depth of the plot of 130 feet ties in with the stated depth of plot B. It is also apparent from the ordnance survey plan annexed to the 1985 conveyance of plot D, as well as from the other measurements of the apparent plot D that were given in the conveyance and the earlier conveyance to Herbert Elvin Day, that the land divided into plots reduced in depth as it went north for some considerable distance, so that there does not appear from that plan to be any land further north with a depth of 130 feet or anything approaching it. This continues for some distance until the depth of the plots increase to a distance of well over 130 feet.

 

10.  Further, I am satisfied from the evidence of Ruth Peggs that plot D was the plot used and enjoyed for many years by Herbert Elvin Day. It is also apparent that this was the plot which Mr. and Mrs. D understood that they had bought. Its measurements correspond with those given in the conveyances. There is no suggestion that Mr. and Mrs. D ever laid claim to plot C, and Mrs. D confirmed in cross-examination that they were shown plot D as the plot being sold in 1985. There is no evidence that points to anybody else laying claim to a paper title to this plot. I conclude therefore that Mr. and Mrs. D did acquire a good paper title to plot D in 1985 and that the red edging on that plan was intended to enclose the second plot up from Rope Walk and not plot C. The paper title has never been registered and Mr. and Mrs. D have now applied to register it.

 

 

 

Possessory title

11.  In about 1980, Mr. B’s evidence is that he became friendly with Mr. Bolter. He found Mr. Bolter, as it appeared to him, in possession of both plots B and D. With Mr. Bolter’s permission he began to use both plots as well. By about 1990, Mr. Bolter had become too frail to go on using the plots and Mr. B continued to use them himself, regarding himself as doing so with Mr. Bolter’s permission. Nobody else used them except with Mr. B’s permission. After Mr. Bolter’s death in 2003, Mr. B continued in possession and later that year, as I have indicated already, plot B was conveyed to him. He has continued in possession of plot D ever since.

 

12.  Mr. B believed that Mr. Bolter had been using plot D from around 1970. At least from the time that Mr. B came to the plots there was no boundary fence between them. The area was surrounded on three sides by dense hedging about 10 to 15 feet high, with a four feet fence along the northern boundary with plot C. The only access was through a very substantial gate at the junction of Lime Street and Rope Walk that was kept locked. It was all used as one unit. Mr. B took steps to discourage and remove trespassers.

 

13.  Before giving details of the alleged occupation by Mr. Bolter and Mr. B, I turn to the evidence of Mr. Herbert Day’s use of the land. I am satisfied that at one stage access to the land was obtained through a pedestrian gate leading from Lime Street and that that gate would have led directly onto a concrete path which divided plot D and led to sheds and a lean to at the back of the plot. Mrs. Ruth Peggs gave evidence that Mr. Day had erected a large shed on the land, which is still there, and that after his retirement he would spend a good deal of time on the land, particularly after his wife’s death. He was a keen gardener and used the plot as an allotment, growing peach trees, gooseberry bushes, peas and cauliflowers there. This continued until he became too frail to go there. She also stated when giving evidence that this was about a year before his death in 1984 although at first he would still go with his wheelbarrow. This allotment was his life. Mrs. Peggs remembered going there at about the age of 5 to see Mr. Day, although I note that this was in 1952, well before Mr. Day actually bought the plot. Mrs. Pegg understood that Mr. Day and his father worked the plot at that time.

 

14.  She described the land in her witness statement as being fenced by a wire fence with wooden posts and with well defined boundaries, although in giving evidence she accepted that the gate onto Lime Street was in a picket fence. It had Albertina roses growing over it. You would go under the roses and down the path and you would find Mr. Day fiddling about. In addition to putting up the shed, he also put up a conservatory at the rear close to the boundary with plot B. The conservatory was no longer there, although I was shown on the site view where it had been.

 

15.  Subject to reservations as to precisely when Mr. Day ceased to use the plot, or when his use of the plot was reduced due to infirmity, and as to the fence said to divide plot D from plot B, I accept Mrs. Peggs’ evidence. I accept Mr. B’s evidence that Mr. B did not know about Mr. Day, but I consider that this was either because by the time Mr. B came on the scene Mr. Day had already ceased to use the land or because initially Mr. B did not come to the land or use it a great deal and Mr. Day’s use had by then reduced so that their paths did not cross. In his oral evidence at the hearing, Mr. B accepted that Mr. Day may have been on the land until 1984, but re-iterated that he did not see him there.

 

16.  What is plain, however, is that Mr. B was at that stage using the land with the permission of Mr. Bolter. In all probability, either Mr. Bolter was sharing possession of plot D with Mr. Day or he was using the land by himself with Mr. Day’s permission. At the very least, there is no evidence that Mr. Bolter’s possession was adverse to Mr. Day. However, any licence for Mr. Bolter to use the land would have terminated either at Mr. Day’s death or, at latest, in 1985 when his personal representative sold plot D to Mr. and Mrs. D.

 

17.  Mr. B’s evidence was that Mr. Bolter used to keep a large number of cats on the two plots and was known locally as the cat man, a description of Mr. Bolter that was confirmed by other witnesses on both sides. The gate leading to plot B was the only access to the whole of the two plots and was kept locked, and Mr. Bolter took steps to discourage and remove persons who entered on either plot, treating both as his own. Mr. B had joined him from around 1980 and had maintained the two plots in various ways. They had never been divided from one another. Mr. B had continued to maintain the boundary features and the locked gate since around 1990 when Mr. Bolter had become too frail to make use of the land himself. His Statement of Case also described how they had used the land but without clearly distinguishing the use made of plot B from that made of plot D.

 

18.  In his witness statement, Mr. B continued to fail to distinguish between his use of plots B and D, but he also stated that when Mr. Bolter ceased to go on the land around 1990, he had told Mr. B that he could continue to use the land as he wished, and Mr. B did so. Mr. B’s evidence went on to describe incursions into plot D by Mr. and Mrs. D and their family in 2007 and 2009. When they obtained access they did so by cutting a hole in the hedge, creating a gap as wide as 10 feet in 2009. Nothing turns on these incursions. In each case the hole was blocked by Mr. B.

 

19.  There is also a statutory declaration made by Mr. B when he applied to the Land Registry for first registration of plot D on the grounds that he had a possessory title to it.

 

20.  In oral evidence, Mr. B confirmed that Mr. Bolter had grown various crops both on his own land and on plot D up to the concrete path. They were not grown right to the front of the land because cars and boats were taken across the front from plot B to plot D. Mr. B also grew crops there, but only until about 1990 when Mr. Bolter ceased to come to the land. Since then, all he had done to cultivate the land was to sow wild flowers, and after trees had been destroyed in one of the two incursions, he had planted replacements.

 

21.  Cars were parked on both plots and Mr. Bolter, a boating man, kept boats on both plots including keeping them inside the shed at the back of plot D. The boats would come and go. Mr. B himself had stored tyres and cars in that shed as well as boating equipment and firewood, which had always been stacked next to one of the sheds. Much of this evidence was already in Mr. B’s witness statement but the oral evidence confirmed which plot was being referred to. He had also kept anchors and chains in the sheds at the back of plot D. A boat had been kept there already in 1980, it being out of the way of kids there. Mr. B would keep good cars on plot D because on plot B it was easier for people to see them and break in and vandalise them. He would leave scrap vehicles on plot B because it was not so important if they were seen. The thick hedge made it harder for vehicles on plot D to be seen and keeping it thick prevented vandals from kicking it in. It is plain both from Mr. B’s evidence and from other evidence that was given that Lime Street has a reputation as a place where petty crime was rife.

 

22.  There had never been a gate at the Lime Street end of the concrete path as long as Mr. B had been there. There had been a piece of picket fence, which had been seen on the site view, but Mr. B thought that that must have dated from the 1920’s or 1930’s. It had always been well within the thick hedge while he had known the property.

 

23.  Mr. B was supported by two of his brothers, David and Robert. David remembered the land from his childhood, having moved to Brightlingsea as a 6 year old in 1960. He clearly remembered Mr. Bolter, but not Mr. Day. He remembered seeing Mr. Bolter and his cats on the land around 1970. If you went on the land, he stated that Mr. Bolter, who was eccentric, would chase you off, although he said that he himself had never been on the land in the 1970’s and 1980’s.

 

24.  He had never seen Mr. or Mrs. D on the land. He was certain that there had been no gate or fence between Lime Street and plot D in the past 15 years. He was less certain before that. He went to the land on numerous occasions after he had been made redundant by the BBC in 1992 and had time to visit family and friends in the Colchester area. He would walk the dogs past regularly. Their parents also lived close by, although his mother had died in 2003. She had cancer and he had been used to going to Brightlingsea to see and care for her.

 

25.  He would also go to borrow tools and to go out in a dinghy. At one point there were at least 6 boats there and they would change continuously. Most of the equipment on the land was boating paraphernalia, which he would take when he needed it. He clearly remembered his brother storing things on plot D from the mid to late 1990’s. His brother was, as he put it, a bit of a collector and if he saw an open space he would fill it. He clearly remembered at the back of plot D huge chains and thick rope. He wondered why Mr. B had brought that stuff there. He was exasperated at him having it there. There was an old Victorian drill that must have been there 50 years, but the other items would come and go. He recalled that one of his brothers had spent days trying to get into a safe there and found it empty. At one point, years after the mid-1990’s Mr. B had a bonfire and burnt nets he had had on the land. In 2003, David had stored cement making equipment on the land. This was after Mr. Bolter had died. Until then he had not asked, because Mr. B regarded the land as Mr. Bolter’s land and would not let anybody else use it.

 

26.  In his witness statement, which he confirmed, he recalled two piles of equipment in the middle of the disputed land in the mid to late 1990’s. His description of the way the land was surrounded by dense hedges except for the chain link fence between plot D and plot C confirmed Mr. B’s evidence as to this. He himself was very tidy, but Mr. B was not, and the plots had a tendency to be overgrown.

 

27.  The other brother, Robert, gave evidence that he was born in 1971 and his first knowledge of the land was early in the 1980’s when he was 9 or 10 and he would go with Mr. B. It was 2 minutes from the house in Tower Street where he lived. He never met Mr. Day and did not know him. Mr. B used to go and help Mr. Bolter with rhubarb and cabbages that Mr. Bolter was growing on the land. Mr. B also had a boat there with Mr. Bolter’s permission and Robert used to go and climb on it. There had never been another gate than the one at the corner of Rope Walk. It was a massive gate with a padlock and chain and it was always the only way to get into the land. He had moved from Brightlingsea in 1992.

 

28.  Mrs. Josephine Crow, the owner of plot C also gave evidence for Mr. B. She had moved to Brightlingsea in early 1998. When she acquired plot C it had been seriously neglected and overgrown. It took a year of hard work to make it reasonable, and 5 to 6 years to get grass to grown all over it.

 

29.  Since acquiring her plot in January 1999, she had regularly seen Mr. B tending plot D. She had never seen anybody other than Mr. B and occasionally his brothers on the land with one exception when in September 2009 she discovered that a group of men had forced entry onto the land, felled trees and attempted to clear the land. She also recalled a representative from the Land Registry inspecting the land in about 2007 or 2008. She had never seen any children on the land or seen any evidence of any wooden posts or wire fencing dividing the two plots, or indeed any fencing inside the perimeter of the land. She and her husband would visit their plot every other day on average throughout the year and work there for several hours each day, particularly during the growing season. She would go regularly in winter because, as she put it, naughty children tended to break in, and she needed to check. When she went to check, she would always check Mr. B’s land as well. She could see well into it, beyond the notional boundary between plot D, which adjoined her plot, and plot B. Apart from the incident in 2009, which it is clear caused her considerable annoyance, she had seen no evidence of any other persons taking an interest in or exercising control over the land.

 

30.  She described the land as being enclosed with fences maintained to the Brightlingsea standard, which she explained as meaning that they were mended with whatever came to hand. Mr. B had sown wild flowers a few years previously, after which the grass had been left to grow for a time, and more recently he had planted trees to replace those felled in 2009. The only gate she had ever been aware of was the Brightlingsea gate at the corner of Rope Walk. Her standards appear to have been less strict that those of Mr. B’s brother, David, as she described Mr. B at one point as keeping it tidy, although she also accepted that some of it was overgrown. She could see the concrete path on plot D but no internal fencing. There was a stark difference between the condition of her neglected plot when she had bought it in 1999 and plots D and B which were always maintained. She challenged a description of the land by the surveyor from the Land Registry a few years earlier, who had described it as completely overgrown. I interpose that the description, in a letter dated 29 July 2010, was that the land was completely overgrown but nevertheless securely fenced and used as other land already registered to Mr. B. Mrs. Crow described it as not completely overgrown, sometimes better, sometimes worse. She recalled one occasion when Mr. B had once cut brambles back with a flame thrower, an occasion she described as quite exciting.

 

31.  Mrs. Crow was clear that she thought that if there had been a boundary marker a few inches high between plots D and B then she would have seen it. She also pointed out that in winter there was a degree of die back. It was much clearer to see through the hedge, which extended 4 to 6 feet beyond that on her land, and she had never seen any gate in it, as claimed by Mr. and Mrs. D.

 

32.  Further evidence was given by Mr. Anthony Bragg, who is now 76 years old, and who recalled the plots between the 1950’s and 1980’s. While his evidence did to some extent support that of Mr. B, I did not find his evidence that Mr. Herbert Day used another plot further along Lime Street at all convincing, and I am satisfied on the basis of the evidence of Ruth Peggs, given on behalf of Mr. and Mrs. D, that he had another member of the Day family in mind. While his evidence as to how the land was used before Mr. Bolter’s time by a Captain Polly, the skipper of a large schooner, may have been accurate, it did not advance matters.

 

33.  The final witness for Mr. B was Mr. Simon Bishop, who is now 49 years old. He recalled how, as a teenager in the 1970’s, together with others, he would scramble through the hedge adjoining Rope Walk and climb over the fence between plots D and C to scrump plums from a tree on plot C. He described Mr. Bolter as occupying a single plot with a gate that was always locked, and he commented that, from what he knew of Mr. Bolter, he would not have acted kindly to anybody he caught trespassing on his land. He did not recall any gate at the end of the concrete path on plot D, nor did he recall any wire running between plots D and B that you could trip over if you were not careful.

 

34.  A Mrs. Patsy Potter also gave a witness statement for Mr. B, but did not attend to give evidence as her husband was ill. She had lived in Tower Street since 1958 and had bought plot C in 1999. In 1972, she and her husband had bought 109 Tower Street where she still lived. At that time, she could already recall Mr. Bolter using plot B and plot D. She confirmed that this land had always been fenced off with the gate at the corner of Rope Walk being the only point of access. Mr. Bolter kept a lot of cats on the land and although people would feed the cats through the gate, nobody was allowed access. The land remained much the same after Mr. Bolter became too old to look after it, and Mr. B took over. Her recollection was that a Mr. Day used another plot on Lime Street. She had never seen children on the land.

 

35.  Mr. and Mrs. D resisted the claim to a possessory title on the ground that Mr. B had not had exclusive possession for an uninterrupted period of 12 years. They claimed that Mr. Day used plot D as an allotment until his death in 1984. They pleaded that the southern boundary of plot D with plot B was marked with a low fence made of posts with two wire strands going through them. On the northern boundary (ie with plot C) was a hedge. They also contended that when they purchased the land in 1985, although starting to be overgrown, the use as an allotment was still clear. Plot D was well fenced and had well marked boundaries and a gate to the front leading onto Lime Street. There were fruit trees and bushes and a well kept shed to the rear of the plot. Their children used to play on the plot from 1985 and the family would frequently walk past it on their way to the beach. Plot C was well kept and plot B was scruffy.

 

36.  They also contended that in 2007 they had the land valued and at that time the fencing between plots D and B was still in place. There was no sign that Mr. B was using the land or attempting to exclude them in any way. In 2008 they found that the entrance gate had been barricaded with barbed wire and the boundary fence between plots D and B had been taken down. They plead that they entered plot D by cutting through the barbed wire to regain access and left a note that the land was being sold and requesting that the boundary fence be reinstated. In response they claim to have received abusive and threatening phone calls. In or about September 2009, they claim that they permitted a friend to use plot D to grow vegetables. This produced a response from Mr. B who told them to leave the land. Until the gate was removed by Mr. B, it had a bolt and Mr. and Mrs. D kept it shut. Neither Mr. Bolter nor Mr. B used plot D by storing anything or by cultivating it.

 

37.  In 2008, after discovering the problem with the plan on the 1985 conveyance to them of plot D, Mr. and Mrs. D applied to the Land Registry for a possessory title to the plot. Mr. D made a statutory declaration dated 31 October 2008 in which he stated that since they had bought the land, he and Mrs. D had “visited it fairly frequently”. The area had remained derelict and overgrown but “the boundaries were always demarked with post and wire fencing”. In the latter part of 2007, he stated, they had decided to sell the land and when showing it to the estate agent “it remained overgrown although the said fencing was visible”. At the beginning of 2008, their daughter’s boyfriend had sought to clear the land on their behalf but he had come back to them a few days later to report that there had been some activity on the land and barbed wire had been strung across the frontage. They then took down the barbed wire and put a notice on the land that it was being sold and giving their telephone number. The statutory declaration went on to state that Mr. and Mrs. D had owned and occupied the plot since 1985 “and had been in full and undisturbed possession and enjoyment of [it] and of the rents and profits thereof continuously since [1985] without any claim adverse to my title.” The statutory declaration appeared to have been drafted by Pleass Thomson & Company, a firm of solicitors in Brightlingsea.

 

38.  Subsequently, Mr. and Mr. D instructed their present solicitors, HPLP, in relation to their objection to Mr. B’s application to be registered as proprietor of plot D, and by letter dated 9 August 2010 that firm wrote to the Land Registry objecting to the application. Their letter states that Mr. and Mrs. D were in possession of the land from 1985 to late 2007 or early 2008, that they regularly visited the land during this period and their children played on the land, which “was bounded by wire fencing and wooden posts”. The letter further challenged the assertion of Mr. B that their was only one gate to the land at the corner of Rope Walk, stating “There is a gate to the Land and another gate further south down Lime Street to the Applicant’s land”. They marked the position of the two gates and contended that Mr. and Mrs. D “used the gate to the Land for access until it was barricaded by branches by the Applicant in late 2007 or early 2008. The gate to the Land is still visible on inspection.”

 

39.  In his witness statement in these proceedings dated 6 March 2011, Mr. D repeated that when they bought the land in 1985 it was starting to get slightly overgrown. He also stated that at that time “The Land was fenced with clearly marked boundaries and a gate leading onto Lime Street…. There were no keys to the gate leading onto Lime Street. There was no lock on the gate as there was nothing of value on the Land just fruit from the trees at harvest time. The shed did have a lock.” In paragraph 7 of his statement, Mr. D continued by stating that the gate was still partially visible, but it had been moved by somebody from its original position to form part of “the existing obstructions in the now enlarged hedge close to the boundary with [plot C]”. In paragraph 10, he stated that he and Mrs. D accessed the land through the gate until the land became overgrown in the late 1990’s. Thereafter for a year or two he had gained access from the farmer’s field at the rear. He also again asserted that his children used to play on the land and used the shed as a den; that as a family they would often walk past the land on the way to the beach; that he recalled going on the land in 1987 after a gale blew out a large pane of glass from the lean to greenhouse to the side of the large shed; that he and his wife went to the land “fairly regularly” but did not tend it; that it was now overgrown, derelict and rather unsightly; that “The Land was always bounded by wire fencing and wooden posts”; that the fencing was still visible in 2007 when they showed it to the estate agents; and that after they were told by the daughter’s boyfriend of changes in the land, they went to inspect it and found that the entrance gate had been barricaded up with barbed wire and the wire fence and wooden fence poles on the southerly side of the land had been removed by someone without their permission.

 

40.  As they did not wish to use the land, it was neglected by them and became more overgrown.

 

41.  Mrs. D provided a witness statement at the same time in very similar terms, describing the plot in 1985 as well fenced with well marked boundaries.

 

42.  Mrs D gave evidence first at the hearing. In relation to the fencing she stated that she had meant the boundary between plot D and plot B, not the other three boundaries and that she did not remember the chain link fence between plot D and plot C. She then went on to say that it was a very small fence, about 9 inches high, and you could step over it. It was a marker – perhaps ‘fence’ was a bad choice of words. She thought Mrs. Crow would have had difficulty seeing it by 1989 because the land was overgrown. Nevertheless, she also stated that you could see the ‘fence’ clearly from the security gate at the corner of Rope Walk, and that Mr. B’s land was tended up to the boundary. She confirmed that the gate had no lock or key and anybody could have used the land. The shed was not locked by her. It did not surprise her that there should be a 12 feet high security fence a few yards down the road, when anybody could get in through this gate.

 

43.  In paragraph 13 of her witness statement, Mrs. D had stated that the fencing was still visible when they had shown the land to the estate agent. However, in cross-examination she stated that she had just looked at it from the outside and thought that everybody had done that. It looked very overgrown through the brambles. They looked through Mr. B’s gate. The security fence had last been seen in 2000, and she had assumed that it was still there. Quite how this overgrown state is consistent with Mr. B’s land being tended to the boundary is unclear. Further it soon transpired that she had not seen the ‘fence’ even in 2000 – it was her husband and son who had then seen it.

 

44.  Mrs. D had no explanation why the OS plan used by the estate agents, as well as that on her own conveyance and on Mrs. Crow’s conveyance, had no line demarcating the boundary between the two plots so that one had to be drawn in by the estate agents.

 

45.  Mrs. D could also offer no explanation why Mr. B should suddenly assert a possessory title in 2007/8 and take action accordingly if he had not used it at all for so many years when she and Mr. D had being doing nothing in relation to the plot. She claimed that the old entrance gate was barricaded with barbed wire and wood in 2008, but that the barbed wire was not there in 2007 when they had put the property on the market. There was a wall of brambles in front of the gate and you had to look hard to see it. It was a big hedge with the gate hidden in it.

 

46.  Mr. D began his evidence by stating that his wife had been a bit muddled. He himself could have been mistaken, he said, in thinking that he had seen the gate in March. It could have been the remains of the picket fence that had been visible on the site view. The gate had been at the end of the concrete path but it was not clear from the road where that was. He used to be able to push the hedge out of the way but over the last 10-12 years it had become thicker and come forward. The hedge made it extremely difficult to get through the gate the few times he went. He had only been on the land 10-12 times, all but the last time being up to 2000. The last occasion was when they had cut their way in. He remembered going onto the land in 1999 or 2000 from the field at the back and in by the shed. By then you could not get it from Lime Street. His son had been about 15-16 at the time – he was born in 1984. His son had been with him and had scratched himself. Mr. D made it plain that he did not like Lime Street, having a problem with dog excrement that he found there, and did not go to the land for fun. He lived a 90 second walk from the land but did not go there. He claimed that one of his sons had told him that he went to play and had met a man who asked what he was doing and who said “Oh, your dad bought it from Mr. Day”. Like all the other references to their children, this account was not assisted by the fact that none of the children provided a witness statement or gave evidence.

 

47.  Unlike his wife, who had not seen any barbed wire in 2007, Mr. Dawson said at one point that he saw it then running through the hedge and said that it had obviously been there for some time. Later in his evidence, however, he said that he had seen it for the first time in 2008 when his daughter’s boyfriend had been going to clear the land with a JCB, although even then he said that it had been there some time.

 

48.  The land was, Mr. D said, shady from the trees and not a lot grew there. The dividing fence between his plot and that of Mr. B was a low one, similar in height to ones which divided gardens on the council estate on which he grew up. He confirmed that the fence to the north (with plot C) was a chain link fence and there was a picket fence in front. In March 2011 he had not gone on the land but had looked through the gate at the corner of Rope Walk. He could see the grass mowed with vegetation behind it. He assumed the fence was there. There was no other explanation for the neat line ending on the boundary up to which the grass had been mowed. The line of the fence was discernable from the line of the vegetation. The grass had been cut down on his plot only in the last 6 months.

 

49.  Although the land had been put on the market in 2007, and remained on the market for several months, there had been little interest in it.

 

50.  What is plain from the oral evidence of Mr. and Mrs. D is that the witness statements and statutory declaration that they had made, and their Statement of Case which they had made verified by a statement of truth were all highly misleading. The boundaries were not all demarcated with post and wire fencing. At best on their oral evidence there was a low wire, perhaps 9 inches high, which they said divided plot D from plot B. There was no post and wire fencing at the front or back of the plot and a chain link fence between it and plot C. So far from having visited the land fairly frequently since purchasing it in 1985, they had rarely visited it even on their own evidence, and neither had visited it between 2000 and 2007. Even in 2007, neither of them had gone onto the land, and neither of them had then seen the so-called fence dividing plots D and B. In paragraph 10 of his witness statement, Mr. D stated that they had accessed the plot through the gate at the end of the concrete path until the plot became overgrown in the late 1990’s and that thereafter “for a year or two, I gained access to the Land from the farmer’s field to the east of the Land.” On his own evidence at the hearing, he had gained access from the field at the rear once in the whole of that year or two.

 

51.  The statement in paragraph 9 of Mr. D’s statutory declaration that he and Mrs. D had occupied the plot since 1985 and had been in full and undisturbed possession and enjoyment of it and of the rents and profits of it continuously since the date of the 1985 conveyance is incorrect on his own evidence, yet Mr. D deposed to its truth.

 

52.  Further, the account given by Mr. and Mrs. D as to how plot B, while scruffy, was tended up to the notional boundary, while the land on Plot D was overgrown and unused, so that the boundary line could be seen requires that Mr. B should have ignored Plot D and simply used and looked after plot B. It simply does not make sense that if that had been the case, and he had carefully observed and respected the boundary line for over 20 years, he should then have asserted a claim to a possessory title, and sought to occupy it, only when the paper title owners appeared.

 

53.  Finally, I have already noted that although repeated reference is made to Mr. and Mrs. D’s children using the shed on plot D as a den, and having played on the land, not one of them provided a witness statement.

 

54.  I have no hesitation in preferring the consistent and credible evidence of Mr. B and his witnesses to that of Mr. and Mrs. D where they conflict. I also substantially accept the evidence of Mrs. Peggs and that of Mr. Gant, which was basically as to the original layout of plot D. I find that there did used to be a picket gate giving access off Lime Street to the concrete path running across from there to the back of the plot. The gate had roses growing over it and a wooden fence on each side as well as a substantial hedge. The gate was a pedestrian gate only. I also accept that Mr. Herbert Day used to go to the plot regularly, although I find that this eased off and then stopped in the years before his death in 1984.

 

55.  I also find that there was a low wire boundary marker as they described, but I am satisfied that this would have either been removed or destroyed at least in part once vehicles started being brought onto the plot. Mrs. Peggs referred to Mr. Herbert Day bringing a trailer onto the plot to build the shed and conservatory, and this must have been by taking it through plot B. In latter years, prior to Mr. Day’s death, I am satisfied that Mr. Bolter was allowed by Mr. Day to share the use of plot D. This involved him also bringing vehicles, boats and equipment onto the plot. Even if this was initially infrequent, it would have led to the destruction or removal of the boundary marker if it still then survived.

 

56.  I accept that Mr. B was not aware of Mr. Day’s ownership or use of plot B. I also accept that he started using the plots with Mr. Bolter’s agreement, in 1980 or 1981, a time that ties in with the memory of his brother, Robert, who was born in 1971, that he had been taken to the land by Mr. B when about 9 or 10 years old. It would not have been earlier than 1980, as I accept Mr. B’s evidence that Mr. Bolter was already in his 70’s when Mr, B started to use the land. Mr. Bolter was born in 1910. Mr. B always accessed the two plots by the large gate onto plot B. Mr. Day may have still been using the picket gate occasionally but Mr. B did not know this and simply thought of the land as Mr. Bolter’s because of the way Mr. Bolter used it all. As Mr. Day’s use of the land decreased and then stopped, the roses and the hedge would have enclosed the picket gate, and after he stopped going there, it stopped being used and was quite quickly swallowed up by the hedge.

 

57.  I accept the evidence of Mrs. D that they were shown plot D before they bought it in 1985 and at that time the picket gate could still be seen. I am prepared, with some hesitation, to accept that at the time she, and possibly Mr. D, went onto the land through that gate, but bearing in mind that they understood the land to have belonged to Mr. Day and that they had no way of knowing that anything on the land at that time belonged to somebody else and not to Mr. Day, they would not have paid attention to anything they found there. They had no real interest in it, and showed no interest in it before 2007 when they decided to try to sell it.

 

58.  I accept that they went onto the land separately perhaps two or three times each in the early years after buying it, but without taking any interest in what was on it. Mr. D also attempted to get onto the land around 1999 or 2000 on one occasion but I am not satisfied that he succeeded in gaining entry from the field on that occasion, which was the occasion when his son hurt himself trying to gain access. Insofar as their evidence suggests any greater access to the land or any use of it, I reject it. I also accept that they walked past it from time to time over the years, but again I find that they took no interest in it. It is possible that, just as Mr. Bishop trespassed on the land to scrump plums, so too their children may very occasionally have got through a gap in the hedge and played there. It is even possible that on occasion the shed was unlocked and they used it as a den without Mr. B being aware of this. However, I am satisfied that within a short time of 1985 the hedge will have covered and overcome the gate, of which there was no sign on the site view, when only a small piece of fencing remained which may previously have been mistaken by Mr. D for the gate.

 

59.  Any licence Mr. Bolter may have had to use the plot terminated on Mr. Day’s death. Nevertheless, he and Mr. B went on using it as before. So far as Mr. B was concerned, it was Mr. Bolter’s land and Mr. B was determined to keep out trespassers, whom he saw as encompassing everybody who was not there with his permission. Mr. B had permission to use the land and in that context to bring family and friends there. I accept his evidence, and that of his brothers and of Mrs. Crow as to the uses that Mr. B and, until 1990, Mr. Bolter put the land to. They are the sort of uses that the owner of this land might be expected to put it to. The land was fully enclosed by hedges from well before 1990 and this was important to Mr. B who wanted it to be secure in view of his fear of people breaking in and vandalising or stealing his property. I do not consider that anybody viewing this land and seeing what Mr. B and Mr. Bolter were doing on the land over the years would have had any doubt that they had taken sole possession of it by 1985, and intended to exclude everybody else so far as they were able.

 

60.  I am therefore satisfied that before his death in 2003, Mr. Bolter had been in adverse possession of plot D for well in excess of 12 years and that under section 17 of the Limitation Act 1980 the title of Mr. and Mrs. D was extinguished.

 

61.  There has been no assent by the personal representative of Mr. Bolter to the possessory title that Mr. Bolter acquired vesting in Mr. B. This was not because he did not want him to have such title as Mr. Bolter might have, but because, once it turned out that Mr. Bolter lacked a paper title, the personal representative simply assented to the paper title to plot B vesting in Mr. B and lost interest in the other plot, being happy to leave Mr. B in possession of it in his own right. The title of a squatter is a legal estate in land and it appears to me that without a proper transfer of the title, Mr. Bolter’s possessory title remains vested in his personal representative, whatever his intention may have been. On the other hand, it is also clear that the personal representative intended to pass to Mr. B the right to possession of plot D and had no further interest in it.

 

62.  Mr. and Mrs. D assert, in reliance on the decision of he House of Lords in Fairweather v St Marylebone Property Co. Ltd., [1963] AC 510, that despite the provisions of section 17 of the Limitation Act 1980, their title is only extinguished against Mr. Bolter and not against Mr. B, so that they are entitled to recover possession from Mr. B. They accept that this would be subject to the right of the personal representatives of Mr. Bolter either to recover possession in turn from them or to transfer their possessory title to Mr. B and so enable Mr. B to resist any claim for possession. They rely in this respect on the words of Lord Radcliffe at [1963] AC 538, where he stated:

 

“One one view, which seems not an implausible one having regard to the structure of the respective sections [ie sections 34 of the Real Property Limitation Act 1833, and section 16 of the Limitation Act 1939], the right or title extinguished is coterminous with the right of action the barring of which is the occasion of the extinguishment. This would mean that, when a squatter dispossesses a lessee for the statutory period, it is the lessee’s right and title as against the squatter that is finally destroyed but not his right or title as against persons who are not or do not take through the adverse possessor”

 

63.  There appear to me to be two answers to that contention. The first is that even if the Fairweather case did support their contentions, Mr. B does take through Mr. Bolter or his personal representative. It is plain that the personal representative, who would have been entitled to possession of plot D, was content for Mr. B to continue in possession of it in his own right indefinitely and that he made this clear to Mr. B. If he was to claim possession from him at this stage, it seems to me that in all probability Mr. B would be entitled to assert title against him in reliance on the doctrine of proprietary estoppel. It is plain, even if that were not the case, that the personal representative could not claim damages for trespass from him in respect of his occupation. I am therefore satisfied that Mr. B’s possession is through the adverse possessor, whether the personal representatives have actually consented to or merely acquiesced in his occupation of plot D.

 

64.  If the contrary was the case, then in any case where there was a sale of a house and garden by A to B in circumstances in which A had been in adverse possession of a small amount of adjoining land, and there was no transfer of that adjoining land, so far as A had power to transfer it, there would seem to be little to prevent A subsequently asserting title to it against B and claiming possession of it.

 

65.  Secondly, in the passage cited, Lord Radcliffe was comparing the view quoted above with another put forward by the squatter, to which he saw objections, that “the lessee’s right and title to the premises became extinguished for all purposes and in all relations, so that as between himself and his lessor, for instance, he has thereafter no estate or interest in the land demised. Fairweather was a case in which a squatter had adversely possessed as against a long leaseholder. The House of Lords held that this did not bring the lease to an end as between the leaseholder and the freeholder. If that was not the case, and the lease was brought to an end, then a leaseholder would be able to avoid his liabilities to the lessor by allowing a squatter to dispossess him, and if this happened without the lessor’s knowledge, the lessor’s own title could then be extinguished before he had any opportunity to know even that he had a right to possession of the property as a result of the lease coming to an end. It is apparent that it is this situation that the House of Lords was dealing with, and not the position of the original freehold owner when the squatter who had acquired a possessory title had given up possession or been dispossessed.

 

66.  At p.540, Lord Radcliffe put the case as follows:

 

“I conclude, therefore, that the effect of the “extinguishment” sections of the Limitation Acts is not to destroy the lessee’s estate as between himself and the lessor; and that it would be incorrect to say that if he offers a surrender to the lessor he has nothing to surrender to him in respect of the land in the possession of the squatter.”

 

67.  At page 535, Lord Radcliffe had previously observed that the argument of the squatter sought to revive sought to revive “the rejected proposition that a squatter becomes in some way the successor to the title of the dispossessed owner.” He continued that the squatter “is not at any stage of his possession a successor to the title of the man he has dispossessed… His title … arises always in spite of the dispossessed owner.” He approved the statement of Scrutton LJ in Taylor v Twinberrow that “it was a misunderstanding of the legal effect of 12 years’ adverse possession under the Limitation Acts to treat it as if it gave a title whereas its effect is “merely negative” and, where the possession had been against a tenant its only effect was to bar his right to claim against the man in possession” subject to the qualification that “a squatter does in the end get a title by his possession and the indirect operation of the Act and he can convey a fee simple.” Adverse possession against a tenant did not therefore transfer to the squatter “either the lessee’s term or his rights against or his obligations to the landlord who held the reversion.” (pp.535-6).

 

68.  Lord Radcliffe continued at p.636 that “since his possession only defeats the rights of those to whom it has been adverse, there may be rights not prescribed against, such, for instance, as equitable easements, which are no less enforceable against him in respect of the land than they would have been against the owners he has dispossessed.” He went on to point out that if the lessee’s estate was extinguished for all purposes, the landlord’s right of action would have accrued at that time and been extinguished 12 years later without him perhaps having any knowledge or means of knowledge or reason to know that time was running against him. This would be unjust. Further, privity of estate would have gone and the landlord would not be able to enforce against the squatter any of the covenants in the lease. The landlord would be deprived of the benefit of those covenants without any compensation or notice. There would also be no way of forfeiting the lease if it no longer existed.

69.  At p.540, Lord Radcliffe asked, “if after 12 years’ adverse possession a squatter vacates the premises and leaves the possession vacant, would it be the lessee or his lessor who would have the better right to possession as between themselves?” He does not ask who would have the better right to possession as between the lessee and a new squatter. Rather, he concluded that “it would be very difficult for anyone to reply that during the remainder of the term the landlord could exclude the lessee…. But if he can, it can only be because the landlord enjoys a present right of possession…”

 

70.  Only four Law Lords heard the case. Lord Guest agreed with Lord Radcliffe. Lord Denning concluded, at the top of p.545 that the title of the leaseholder was extinguished as against the squatter but remained good as against the freeholder. He did not refer at all to the position as against anybody else and his reasoning is directed solely the survival of the landlord/tenant relationship. Lord Morris of Borth-y-Gest dissented.

 

71.  What is clear is that the whole of the case is concerned with whether the rights of the landlord and tenant as between themselves survived, not whether the dispossessed and statute barred title holder could still recover possession against a subsequent squatter who is there without the consent of the true owner. If he could recover possession in this way, then it would mean that there would be two persons entitled to possession – the squatter and the statute barred owner and one would have to ask also whether both could claim damages for trespass against the subsequent squatter. Apart from one brief phrase, there is nothing in the judgments of the majority in the House of Lords to lead to this conclusion and it is not supported by the reasoning used there.

 

72.  I do not regard Fairweather v St Marylebone Property Co. Ltd as authority for the proposition that possession could be recovered from a second squatter if the first squatter was entitled to recover possession from that second squatter. Whatever limitations there may be on the scope of what is now section 17 of the Limitation Act 1980, it is wide enough to bar the original paper title owner from making such a claim. Otherwise, if the squatter has given a licence or a lease to another person, and that licence or lease determines, the original owner would have the right, together with the squatter, to claim possession and mesne profits from the overstaying lessee or licensee. Unlike in the case of a lessee and his relationship with his lessor, I can see no reason why the provision in section 17 of the Limitation Act 1980, and the provision in section 18 of that Act that the legal estate shall be extinguished, should not be entirely effective against anybody with whom the original estate owner had no rights or obligations arising out of his estate. Further, on the basis put forward by counsel for Mr. and Mrs. D, in a case such as this, the possessory title holder and the barred paper title owner would both be entitled to be registered with a freehold title to the land, although the paper title owner would have no rights arising from this unless and until the possessory title owner or his successors in title went out of possession.

 

73.  I therefore conclude that Mr. and Mrs. D’s paper title has been extinguished under section 17 of the Limitation Act 1980. Whether or not Mr. B’s possessory interest in the land is through Mr. Bolter, Mr. and Mrs. D have no interest in the land, and no right to recover it from him.

 

74.  Having come to that conclusion, I note that it appears to be supported by the decision of the Judicial Committee of the Privy Council in Sze v Kung, [1997] 1 WLR 1232, which was not cited to me. In that case, A had granted a lease of land to B. C had gone into possession of the land and some 6 years later was granted a licence by A to occupy it. A had forgotten about the lease. By some years later, B’s leasehold interest had been barred by the Hong Kong Limitation Ordinance, which is in very similar terms to the Limitation Act 1980. A then discovered the lease and revoked the licence. Despite this, C continued in possession, and B sought to recover possession from C. The Judicial Committee concluded that B’s leasehold title had been barred and, although the original barring of the title had been by C on behalf of A, and C was now a trespasser as against A, B could not recover possession from C. At p.1236C-E, the position is put as follows:

 

“At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years. But this does not matter: the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiff’s right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the plaintiffs since they were dispossessed are for this purpose irrelevant.”

Conclusion

75.  The end result, therefore, is that the application for first registration by Mr. and Mrs. D must fail, and for the same reason, their objection to Mr. B’s claim to a possessory title must also fail. It does not automatically follow, however, that Mr. B’s application should be given effect to. Mr. Bolter had a legal estate arising from his adverse possession of the land for over 12 years, and that estate has never been conveyed to Mr. B, although the personal representative and residuary beneficiaries of Mr. Bolter appear initially to have intended that it should be. The eventual assent was in relation only to the land described in the 1965 conveyance, that is plot B, apparently due to the discovery that Mr. Bolter had no paper title to plot D. In those circumstances, it does not appear to me that Mr. B can derive any assistance from Asher v Whitlock, (1865) LR 1QB 1, to which his counsel referred me, where the heir of a testator who was in possession at the time of his death, but had not acquired a possessory title by that time, was entitled to maintain an action for possession against another person who did not derive title from the paper owner. There was no issue in that case as to whether the right to possession of the deceased had passed to the heir at law if there was an interest in land that could pass to him. The question was whether the right to possession was a devisable interest and it was held that it was.

 

76.  On the other hand, the personal representative has shown no interest in plot D in the intervening 8 years since the assent and he and those entitled on Mr. Bolter’s intestacy were plainly content that Mr. B should remain in possession of the land indefinitely and take over whatever possessory rights Mr. Bolter may have had. It would appear likely that the estate has now been fully administered. On balance, and bearing in mind that, in the very unlikely event of any claim to plot D being made on behalf of Mr. Bolter’s estate, that Mr. B would now have good prospects of resisting it, it appears to me that he should now be registered with a possessory title. He is in this respect in the same position as the purchaser of a house and garden when there has been no formal transfer of the additional land on which the vendor has squatted, to which I have already referred. He is in possession of the land. The paper title has been extinguished and I see no realistic prospect of there being at this stage anybody with a superior right to possession. If there should be such a person, his rights would be preserved, provided that the title registered is a possessory one, by section 11(7) of the Land Registration Act 2002.

 

By Order of The Adjudicator to HM Land Registry

 

 

dated the 31^st day of october 2011