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REF/2012/0049

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN

PAUL TSOUKKAS

APPLICANT

and

SOUTHWARK COUNCIL

RESPONDENT

Property Address: Land to the north of 117 Peckham High Street, London SE15

Title Number: TGL347388

Before: Mr Owen Rhys sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Victory House, Kingsway, London WC2B 6EX

On: 4 ^th September 2012

Applicant representation: Ms Natalie Brown of Counsel instructed by Henry Hughes & Hughes

Respondent representation: Mr Simon Butler of Counsel instructed by Southwark Legal Services

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D E C I S I O N

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Issues – adverse possession – Sch 12 para 18 Land Registration Act 2002 – whether the Applicant squatter’s belief that he had a right of way over the Respondent’s land deprived him of an intention to possess – whether he had acknowledged the Respondent’s title

1.       The Applicant is (together with his wife) the registered proprietor of Title number SGL207810, which comprises commercial premises known as 117 Peckham High Street, London SE15. The Applicant operates a business known as the Como Restaurant from these premises. The restaurant premises are at the front, but the building continues northwards away from the street and has a rear door opening into an enclosed yard (“the Yard”) at the rear. The Yard forms part of the Respondent’s title number SGL230400. It has a gated vehicular entrance onto a small side road known as Mission Place, which also runs northwards from Peckham High Street. This gated entrance is on its eastern side of the Yard. To the north of the Yard, and accessed from within it, are a series of small garages or storerooms. The only premises with access into the yard is that of the Applicant. Between 1987 and 1989 the Applicant’s predecessor in title as the owner of 117 Peckham High Street, Mr Bruno Mazzucchi, padlocked the gate that gave access into the yard from Mission Place. From that time onwards, at least until the events of 2004 that I shall describe, first Mr Mazzucchi, and then the Applicant and his wife, were in sole control of the access into the Yard and, the Applicant contends, were in exclusive factual possession thereof. The Respondent concedes as much, although there is a dispute as to the extent to which the Applicant used the yard after 1989. In that year, he and his wife took a lease of the restaurant, eventually buying the freehold title in 1998. At all events, it appears that the owners and occupiers of No.117 were the sole users of the yard, with control of the locked access gate, from 1989 at the latest.

2.       On 27 ^th May 2011 the Applicant applied to the Land Registry in Form AP1 to be registered as proprietor of the Yard, based upon his claimed adverse possession since 1989. The application was made under paragraph 18 to Schedule 12 to the Land Registration Act 2002, namely under the transitional provisions. Thus he has elected to proceed under the pre-2003 law on adverse possession. He is therefore required to prove that he had acquired a title to the land no later than 13 ^th October 2003, the date on which the 2002 Act came into force. He must show that he had been in adverse possession of the Yard for not less than 12 years expiring on that date. If he is able to demonstrate this, the registered proprietor of the Yard – the Respondent – would (as at 13 ^th October 2003) have been holding the title on trust for the Applicant as beneficial owner. That is the effect of section 75 of the Land Registration Act 1925.

3.       As regards evidence, the Applicant relied on the witness statement of Mr Mazzucchi, who is now resident in Italy and in any event had not been called to give evidence in person, since his statement was admitted by the Respondent. In addition, the Applicant himself made a witness statement, upon which he was cross-examined very thoroughly by Counsel for the Respondent. Mr Mazzucchi’s evidence, according to his witness statement, was to this effect. He had started up the restaurant business from scratch in around 1960, but did not buy the freehold of 117 Peckham High Street until 1972. At that time, the Yard was in use by a variety of people, principally traders from the nearby market in Rye Lane. They used to prepare their goods there. These traders all had keys to the Yard, as did Mr Mazzucchi himself. He used the Yard on a daily basis to take deliveries and so forth. In the late 1970s the Respondent served notice of intention to compulsorily purchase a number of properties in the area in order to redevelop. Although the Respondent eventually shelved its redevelopment plans, gradually third party use of the Yard diminished, until by the 1980s only Mr Mazzucchi himself used it for the purposes of his business. It was then that he decided to padlock the entrance to the Yard from Mission Place. This occurred some time between 1987 and 1989. He neither sought nor was given permission to do this. When he leased the restaurant to the Applicant in 1989, he handed him the key to the Yard. The Applicant confirmed this.

4.       According to the Applicant’s evidence, from 1989 onwards he used the Yard regularly for a variety of purposes. He parked at least one vehicle there on a daily basis. All deliveries were made to the Yard via Mission Place, and on occasions delivery vehicles are parked there for lengthy periods. Such deliveries take place four to five times per week, at all times during the day. He stored various building materials, and non-perishable foodstuffs, such as canned goods and cooking oil, in the storage areas at the rear of the Yard. He also stored redundant or repairable tables and chairs in the same place. He always had exclusive use of the Yard, and controlled the access to it by means of a lock on the gates from Mission Place. He said that the padlocks had to be replaced from time to time, probably every two years or so, which he did. Nobody, apart from himself and those associated with his business, entered the Yard or made use of it from 1989 onwards. He was robustly challenged on this evidence in cross-examination. It was put to him that he had other, more appropriate, storage areas within the restaurant premises, and would not have stored canned goods and oil in the buildings within the Yard. Various photographs were shown to him, which appeared to show that the storage units were overgrown with plants and shrubs, and that by 2004 at least they were in a dilapidated condition. Mr Tsoukkas rebutted these suggestions. He said that he was in the habit of buying goods in bulk to obtain a discount – “if there was a deal” – and often it was necessary to store large quantities of food and cooking oil at short notice. The storage areas were convenient for this purpose. He denied that the former stables were derelict, and pointed out that none of the photographs produced by the Respondent showed the interior of the buildings. Having heard his oral evidence, although I accept that there may have been a minor degree of exaggeration on his part, I am entirely satisfied that he did make full and continuous use of the Yard, to the exclusion of all others, in the manner he described, for the period between 1989 and 2004. In the conventional lexicon of adverse possession, he was in exclusive factual possession from 1989 onwards. I shall consider the separate issue of intention to possess later in this Decision.

5.       I shall now describe the events of 2002 and 2004. In early 2002 Mr Tsoukkas wrote a letter to the Respondent’s property manager in these terms: “I’ll currently introduce myself as Paul Tsoukkas at the Como Restaurant; I currently have a right of way through the plot of land in-between the old library and the small stables on Mission Place. I would prefer side access through the stables, which is why I am enquiring if I could purchase the freehold on the stables. I would be prepared to purchase the mentioned plot with the old horseman still at the plot. I would like you to know that the stables adjoin directly on to the Como Restaurant and that it would be more convenient for us and probably for you in light of the access I currently have through the other plot…..”. The former stables are situated just to the south of the Yard, and to the east of the Applicant’s premises. Accordingly, this letter is not an offer to buy the Yard itself, or in my judgment an acknowledgment of title. However, the Respondent draws my attention to the following words: “ I currently have a right of way through the plot of land in-between the old library and the small stables on Mission Place .” It is argued that in some way this prevents the Applicant from being able to prove a sufficient intention to possess the Yard or, alternatively, that the admission of a right of way precludes him from contending for adverse possession.

6.       During 2004 the Applicant carried out a very extensive redevelopment of his premises. The extent of the work can be gauged by the fact that he required 155 skips to carry away building waste. In the course of these works, his builders placed scaffolding and building materials in the Yard, and parked their vehicles there. This activity eventually came to the attention of the Respondent, and it vigorously objected. Mr John O’Kelly, a Senior Surveyor, and Mr Richard Buxton, of the Respondent’s Legal department, attended at the site on 25 ^th and 26 ^th November 2004. They took various photographs, which are in evidence, and asked for and were given a key to the Applicant’s padlock on the main gate. There is correspondence in evidence between the parties in December 2004. This shows that the Respondent was threatening legal proceedings against the Applicant for trespass. By letter dated 8 ^th December 2004, Mr O’Kelly offered to grant a licence to the Applicant, limited in time until 14 ^th January 2005, and restricted to use of the Yard in connection with the ongoing building works. The price sought was £3250, and it was said that legal proceedings would be issued if the licence was not accepted by 17 ^th December 2004. On the same day, a rather more confrontational letter from Mr Buxton was hand delivered to the Applicant and his wife, threatening an injunction and intimating a claim against them for compensation for alleged damage to the Yard.

7.       On 10 ^th December 2004 Mr Martin Galbraith, a Building Surveyor, replied to the Respondent’s correspondence on behalf of Mr and Mrs Tsoukkas. He wrote as follows: “My clients are exercising their right of way over the Old Stable Yard, something I understand they have done for many years, a right which their predecessor enjoyed also for many years……… My client has instructed his builders not to store or place material within the yard and to immediately remove any that may currently be there. He has also instructed them not to leave vehicles there, other than for short term loading/unloading. Apparently, Mr Tsoukkas has fitted a functioning lock to the “outer” Old Stable Yard Gates, to secure the premises. You may obtain a key from him at 117 Peckham High Street….. My clients are not prepared to cease exercising their right of way over the yard, with or without vehicles, nor to enter into a licence which seeks to extinguish their rights.” It appears that the Respondent took no further action, but the Applicant did not enter into the proposed licence, or any licence. The building works were duly completed.

8.       The Respondent also relies on the events of 2004, and the correspondence, in a number of ways. First, it is said that the claim that the Applicant was entitled to a right of way over the Yard displaces his ability to allege adverse possession. It is argued that the existence of the right of way demonstrates that the Applicant’s presence on the land was with the Respondent’s consent, and therefore his possession cannot have amounted to “adverse possession”. To my mind, this argument is misconceived. First, it is not at all clear that the Respondent has ever granted a right of way over the Yard. Certainly, no such right is entered on the register either of the dominant or servient land. Further, the Respondent has never conceded the existence of a right of way, as the correspondence in 2004, and the terms of the proposed licence, make clear. Secondly, and even if there is a right of way, the activities of the Applicant on the land are manifestly outside the terms of any such right. He, and Mr Mazzucchi before him, have been in exclusive factual possession of the Yard, using it as any owner would do. Parking vehicles for long periods, and the storage of food, furniture and equipment are activities outside the scope of an easement, and amount to full beneficial use of the land. Even if there had been consent to use the Yard as an access way, that consent would not extend to the more extensive activities referred to in the Applicant’s evidence. For the reasons I have given, however, in fact the Respondent never did give consent to the Applicant’s use of the Yard, even for the limited purposes of a right of way.

9.       The Respondent also relies on the Applicant’s reference to a right of way, and his willing giving of access to the Respondent in November 2004, as negating any intention to possess. This is the same argument as is made in relation to the 2002 letter, which I have referred to previously. As the leading case of J.A Pye (Oxford) Ltd v Graham [2002] UKHL 30 makes clear, the required intention is an intention to possess, not to own, the land in question. The requirement is an intention “in one’s own name and on one’s own behalf to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow” – (see Lord Browne-Wilkinson’s speech in Pye at para 43). In the present case, of course, Mr Mazzucchi and the Applicant have, between them, physically excluded everyone (including the paper owner) from the Yard, by means of a locked gate to which only they held the key. Further, there is no inconsistency between a squatter being willing to pay the paper owner if required to do so and in the meantime having a intention to possess: that is the meaning of the phrase - see Pye at para 46. Nor does a squatter claiming adverse possession have to believe that he owns the land – as the facts of Pye itself make clear. Indeed, in most cases of adverse possession the squatter knows very well that he is a trespasser. It follows, in my judgment, that a belief that the Applicant had a right of way over the land is not inconsistent with an intention to possess the land, given that his use of the Yard was clearly outside the scope of any easement. Enjoyment of a right of way does not, by definition, amount to exclusive factual possession, but the intention to possess the Yard may be inferred from the actual use made of it by the Applicant, coupled with the physical exclusion of everyone else, including the Respondent. I conclude, therefore, that the Applicant did have a sufficient intention to possess such as to satisfy the test set out in Pye v Graham.

10.   Finally, the Respondent relies on the Applicant’s letter of 10 ^th December 2004 as an acknowledgment of the Respondent’s title, within the meaning of sections 29 and 30 Limitation Act 1980. Although the issue is not free from doubt, I am inclined to agree. Although there is no acknowledgment in terms, the underlying premise of the letter is that the Respondent is the owner of the Yard, and able to grant a licence or easement over it. However, an acknowledgment of title cannot divest a squatter of a title which has already been acquired by that date. Since the Applicant (and his wife) went into adverse possession no later than 1989, in my judgment they acquired a title (pursuant to section 75 of the Land Registration Act 1925) no later than the end of 2001. After that time, therefore, the Respondent held the registered title on trust for them. An acknowledgment of the Respondent’s title made some three years later is of no effect – see section 29(7) of the Limitation Act 1980.

11.   For all these reasons I conclude that the Applicant has made out his case on adverse possession, and I shall direct the Chief Land Registrar to give effect to the Applicant’s’ application in Form FR1 dated 27 ^th May 2011. I see no reason why the Respondent should not bear the Applicant’s costs. The Applicant has already served a statement of costs, and I propose to make a summary assessment. If the Respondent wishes to contend for a different costs order, or to make submissions on the amount of costs claimed, it must do so within 7 days of the date of receiving this Decision. The Applicant may respond 7 days thereafter. The Applicant must also confirm in writing that the claimed costs have all been incurred after the date of the reference, namely 12 ^th January 2012.

Dated this 21 ^st day of September 2012

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY