REF/2012/0122

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

HELEN MARY TICKLE

 

APPLICANT

 

and

 

ADMIRAL TAVERNS LIMITED

 

RESPONDENT

 

Property Address: Land adjoining the south side of the Fox & Hounds Public House, Eyton, Wrexham, LL13 0YD

 

Title Number: CYM525452

 

Made by: Mr M Sheehan, Deputy Adjudicator to HM Land Registry

 

 

Sitting at: Manchester HMCTS, 2 Piccadilly Plaza, Manchester

On: 21-22 August 2012

Site Visit: 20 August 2012

 

Applicant Representation: Robert Sterling, Counsel, instructed by E Rex Makin & Co, Solicitors

Respondent Representation: Huw Roberts, Counsel, instructed by the Respondent

 

___________________________________________________________________________

 

DECISION

___________________________________________________________________________

 

Application for first possessory freehold title on basis of adverse possession – encroachment on adjoining land by tenant - presumption that adverse possession by tenant for the benefit of the landlord’s title – whether presumption is rebutted on the facts – effect of grant of tenancy to tenant excluding the encroached land – whether tenant estopped from maintaining the application for registration by terms of tenancy agreement

 

Cases referred to

 

Powell v McFarlane (1979) 38 P & CR 452, J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, Mayor and Burgesses of the London Borough of Tower Hamlets v Barrett and another [2005] EWCA Civ 923, King v Smith [1950] 1 All ER 553, Attorney-General v Tomline (1879) 15 Ch D 150, Smirk v Lyndale Developments Ltd [1975] Ch 317, Kingsmill v Millard (1885) 11 Exch 313, Ellis v Lambeth Borough Council (1999) 32 HLR 596

 

INTRODUCTION

 

1.                   The Applicant Ms Helen Tickle is the tenant of a public house known as the Fox and Hounds, Eyton, Wrexham LL13 0YD (“the Fox and Hounds”) which is registered at HM Land Registry under title number CYM19132. She has been the tenant of the Fox and Hounds since March 1999 pursuant to tenancies with various predecessors in title to the Respondent. The boundaries of the registered title of the Fox and Hounds are as shown edged red on the title plan annexed to the official copy of the register which appears at pages 202-206 of the hearing bundle.

2.                   On 11 April 2011 the Applicant applied to HM Land Registry to be registered as the first proprietor of unregistered land to the south of the Fox and Hounds (“the Application”). The Applicant applied for a possessory freehold title. The Applicant asserts that she is entitled to be registered as proprietor by reason of her adverse possession of the land. The amended application is made in respect of the whole of field OS6900 (save for a small strip of land immediately to the south and west of the Fox and Hounds beer garden) and part of field OS6894 (“the Fields”) as depicted on the Land Registry illustrative plan dated 14 November 2011 that appears at page 19 of the hearing bundle.

3.                   The Respondent is the registered proprietor of the Fox and Hounds and is the Applicant’s landlord. On 26 July 2011 the Respondent’s predecessor in title Admiral Taverns (Pyramid) Limited objected to the Application. The Respondent does not dispute that the Applicant has been in adverse possession of the Fields but objects to the application on the basis that the Applicant’s encroachment onto the Fields was for the benefit of the Applicant’s tenancy and the Respondent’s reversionary interest. In addition the Respondent contends that the use of the Fields by the Applicant has been ancillary to the public house business and that access to the Fields over Fox and Hounds land was only permitted because the Applicant’s encroachment was for the benefit of the tenancy and the reversion.

4.                   The dispute between the parties was referred to the Adjudicator by the Chief Land Registrar on 2 February 2012 for determination (“The Reference”) pursuant to section 73(7) of the Land Registration Act 2002 (“the 2002 Act”). At no stage has a party claiming to have documentary title to the Fields come forward and the Respondent is the only objector to the Application.

5.                   During the hearing I was made aware that the Respondent issued forfeiture proceedings against the Applicant in February of this year. These proceedings are being defended and I was provided with a copy of the pleadings. The claim for possession is being heard in the Wrexham County Court and is outside my jurisdiction. Other than making me aware of the existence of these proceedings neither party invited me to take the existence of the forfeiture proceedings into account in my reaching my decision.

6.                   On 28 January 2012 ownership of the Fox and Hounds was transferred from Admiral Taverns (Pyramid) Limited to the Respondent, which was formerly known as Admiral Taverns (Cygnet) Limited. By Rule 24 (1)(c) of the Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 (as amended) (“the 2003 Rules”) a party may be substituted for an existing party where the existing party’s interest has passed to the new party. At the hearing I directed that Admiral Taverns Limited should be substituted as Respondent on the basis that it was the current freeholder of the Fox and Hounds. There was no objection to the substitution by the Applicant. For convenience, where it is not material to distinguish between the current and former Respondent in this decision I have referred to them as Admiral.

 

THE ISSUES

7.                   At the start of the hearing I identified the principal issues which I understood to require determination, taking into account the terms of the Reference and the Statements of Case:

a.        Has the Applicant been in adverse possession of the Fields and, if so, over what period of time?

b.       If adverse possession is established, has the presumption that encroachment by the tenant accrues for the benefit of the landlord’s title been rebutted in this case?

c.        Is the Applicant estopped by the terms of her current or previous tenancy agreements from making the Application?

8.                   The Statements of Case also raised the following issues:

a.        Whether the Applicant could establish an easement of passage over part of the Fox and Hounds land for the benefit of the Fields.

b.       Whether the Respondent was entitled to be registered as proprietor of the Fields by reason of the Applicant’s adverse possession.

c.        Various claims for declaratory relief.

9.                   At the outset of the hearing I raised my concern with counsel for both parties that the jurisdiction conferred upon the Adjudicator was a statutory jurisdiction arising from either a reference by the Chief Land Registrar pursuant to section 73(7) of the 2002 Act or by an originating application pursuant to section 108 of the 2002 Act. The relief that may be granted by the Adjudicator is limited to relief in respect of such referrals or applications.

10.               At the hearing I noted that no application had been made by the Applicant for the registration of an easement over the Fox and Hounds for the benefit of the Fields and this matter has not been the subject of a reference. Similarly, the Respondent has not made a claim to be registered as proprietor of the Fields and this matter has also not been the subject matter of a reference.

11.               I was addressed by the Applicant on whether it was open to me to make findings of fact relevant to the Applicant establishing an easement of passage over part of the Fox and Hounds for the benefit of the Fields. In view of the jurisdictional problem I identified the Applicant invited me not to make any findings of fact in respect of the possible easement claim. At the hearing I made a ruling that I would not deal with the easement claim raised in the Applicant’s Statement of Case as it was not properly before me.

12.               The Respondent accepted that it has not applied to the Land Registry to be registered as proprietor of the Fields and counsel for the Respondent confirmed that I was not being invited to make any findings of fact on this issue, particularly as the Respondent might seek to rely on adverse possession prior to that claimed by the Applicant. Accordingly I do not address any possible application by the Respondent to be registered as proprietor of the Fields in this decision.

13.               The Applicant invited me to consider reserving any further application concerning the matters set out in paragraph 8 above to myself. Reserving matters which are not yet the subject of a reference to a particular Deputy Adjudicator can cause difficulty and delay. Rather than reserving any matters to myself at this stage I would simply invite the parties, in the event of any further reference which is relevant to matters considered in this decision, to inform the Adjudicator’s office that I have dealt with this matter and (if this is the case) that the parties consider that cost and time savings may result if the matter is listed before me.

 

THE LAW

Adverse Possession

14.               Applications for first registration of land based on adverse possession are dealt with by Part 2, Chapter 1 of the 2002 Act. By section 3(2) of the 2002 Act a party may apply to be registered as the proprietor of unregistered legal estate if that estate is vested in him or he is entitled to require the estate to be vested in him.

15.               The procedure for applying for first registration of unregistered land on the basis of adverse possession is set out in Land Registry Practice Guide 5. The Applicant complied with the Practice Guide by making her application on Form FR1 which appears at page 221 onwards of the hearing bundle. In the case of unregistered land sections 15, 17 and Schedule 1 of the Limitation Act 1980 continue to apply. The time limit for an action to recover land is 12 years and if an action to recover land is not brought within that period the title of the person entitled to bring the action is extinguished. By paragraph 8(1) of Schedule 1 to the Limitation Act 1980, the time period for bringing an action to recover land does not commence until some person is in adverse possession of the land.

16.               To establish adverse possession and Applicant must prove:

a.        factual possession of the land claimed;

b.       the necessary intention to possess, as judicially defined; and

c.        that the possession is without the owner’s consent.

In addition, if adverse possession is to be established so that the owner’s title is extinguished, adverse possession has to be established for a period of 12 years.

17.               In Powell v McFarlane (1979) 38 P & CR 452,Slade J said:

"Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so."

18.               The House of Lords approved this statement of the law in the leading case of J A Pye (Oxford) Ltd v Graham [2002] UKHL 30. In the same case the relevant legal intention was considered. The following statement of Slade J in Powell v McFarlane (1977) 38 P & CR 452, 471-472, concerning the necessary intention
was also approved in Pye.

"the 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 reasonably practicable and so far as the processes of the law will allow"

19.               I note that this is not a case in which an alleged paper title owner is disputing the claim of adverse possession. The documentary title owner of the Fields has not been identified and there is no evidence that the Applicant’s use of the Fields was by permission. In this case the only respondent to the Application supports the Applicant’s claim of adverse possession. It remains necessary, however, for the Applicant to satisfy me on the balance of probabilities that she can establish that she has been in adverse possession of the Fields and she must also establish the duration of her adverse possession.

Presumption that encroachment is for the benefit of the landlord’s title

20.               If the Applicant establishes that she has been in adverse possession of the Fields, a factual presumption arises that her adverse possession of the Fields by way of encroachment from the demised premises is for the benefit of the tenancy and for the landlord’s title. For ease of reference I will refer to this as the presumption of encroachment. The presumption of encroachment is rebuttable and the parties dispute whether the Applicant has succeeded in rebutting the presumption.

21.               There is a helpful recent summary of the presumption of encroachment in the judgment of Neuberger LJ in the Court of Appeal case of Mayor and Burgesses of the London Borough of Tower Hamlets v Barrett and another [2005] EWCA Civ 923 at paragraphs 26-29.

“[26] The doctrine was clearly stated by Parke B in Kingsmill v Millard (1855) 11 Exch 313, at 318, in the following terms:

“It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a third person – that the presumption is, that the tenant has inclosed it for the benefit of his landlord unless he has done some act disclaiming the landlord's title. . . .The encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his own benefit.”

[27] This passage was cited by Pennycuick V-C in Smirk v Lyndale Developments Ltd [1975] Ch 317, [1975] 1 All ER 690 at 324 B-G in the course of an extensive review of the cases on this topic (between 323F and 331F). He observed at 323G that the cases demonstrated that “the law . . . has got into something of a tangle”, but he went on to say at 324G that the doctrine, at least as summarised by Parke B, appeared to him to be “in accordance with justice and common sense”. Although the Court of Appeal reversed his decision (on a ground not argued before him), Lawton LJ, giving the judgment of the Court, “accept[ed] Pennycuick V-C's statement of the law [on this topic] as being correct” – see at 337G.

[28] It is difficult to discern the precise basis upon which the courts have decided that a tenant, who squats on a third party's land and thereby acquires title to that land, does so for the benefit of his landlord. As Thesiger LJ said in Attorney-General v Tomline (1880) 15 Ch D 150 at 161, “there is a difference of opinion among Judges as to the exact grounds of the doctrine that encroachments made by tenants enure for the benefit of their landlords”. On the same page, he said that the doctrine was “founded upon a presumption of fact”. That seems consistent with principle and with at least the bulk of the authorities on the topic considered in Smirk's case, and indeed with the judgments of James and Cotton LJJ in Tomline's case itself.

[29] The notion that the doctrine exists and is based on a rebuttable presumption also seems entirely consistent with the judgment of Willes J in Whitmore v Humphries (1871-2) LR 7 CP 1, at 5, where he said that “as between the landlord and the tenant, the tenant must prima facie be deemed to have taken in the additional land as part of his tenancy” (emphasis added). He went on to refer to the tenant as having “availed himself of the opportunity afforded him by his tenancy to make encroachments”, thereby rendering it appropriate to “presume” that the encroachment was “for the benefit of the reversioner.”

22.               The legal basis of this factual presumption, which is also referred to as a doctrine in a number of the authorities, is unclear and it has been the subject of varying explanations in the case law. However, the existence of the presumption is clearly established in the authorities and is not disputed by the parties in this case. The effects of the presumption of encroachment are summarised at paragraph 25-03 of the second edition of Adverse Possession by Jourdan & Radley-Gardner. Where the presumption exists the tenant may enjoy possession of the relevant land (in this case the Fields) but the tenant must yield up possession of the relevant land at the determination of the tenancy to the landlord.

23.               The circumstances in which the factual presumption can be rebutted have been considered in a number of decided cases. In King v Smith [1950] 1 All ER 553 at 553E Roxburgh J stated that “the presumption can be rebutted by proving that the landlord and the tenant so conducted themselves as to show that the landlord treated the encroachment as not enuring for her benefit”.

24.               Roxburgh J referred to the Court of Appeal case of Attorney-General v Tomline (1879) 15 Ch D 150 in support of his statement of the circumstances in which the presumption could be rebutted. Tomline concerned copyhold land. The disputed land was originally occupied by the Crown by virtue of a licence which entitled the Crown to inclose the disputed land. The Crown held adjoining land as copyhold land. The licence came to an end but the Crown remained in possession of the disputed land. There were then successive surrenders and admittances of the copyhold land in which the area of the copyhold land was specified and limited to the original area of the copyhold land not including the disputed land. It was argued by the appellant that the disputed land was an accretion to the copyhold tenement by application of the presumption of encroachment to copyhold land.

25.               There are three judgments in the Court of Appeal. James LJ held that the doctrine of encroachment had no application on the facts as “there was never anything that could be called an encroachment in its origin.” Had an encroachment occurred James LJ stated that presumption would have been “entirely excluded by the fact that, after the supposed accretion or addition to the original piece of copyhold land, the then copyholder surrendered to the lord, not the original piece of copyhold land along with this additional piece of land, but the original copyhold only, and the lord regranted specifically that copyhold piece to a new copyhold tenant.”

26.               Cotton LJ declined to state whether the presumption of encroachment applied to copyhold land. However he addressed the circumstances in which the presumption could be rebutted. He stated “it is liable to be rebutted not only by the circumstances under which the encroachment or accretion was acquired, but by any dealings between landlord and tenant in determining their rights. If we find that there are subsequent grants by the lord to the copyhold tenant, or by the landlord to his leasehold tenant, of the original tenement by a description which clearly does not include the encroachment, then in my opinion the presumption that it was made as an accretion to the original holding cannot apply.”

27.               Thesiger LJ confirmed in Tomline that the doctrine of encroachment “involves a presumption of fact that is capable of being rebutted.” He states that “a landlord and tenant may so conduct themselves in the course of transactions either by deed or otherwise as to shew that the landlord treated the encroachment as not enuring to his benefit.”

28.               In Smirk v Lyndale Developments Ltd [1975] Ch 317 Pennycuick VC considered the existing case law and followed Kingsmill v Millard (1855) 11 Exch 313. He held that for the presumption to be rebutted there must be “communication to the landlord” of the relevant facts. In Kingsmill it was held that where, on the facts, the landlord was “allowed to remain under the belief that the encroachment is part of” the demised property then the tenant is estopped from denying this and must deliver up the disputed land along with the rest of the demised premises. Parke B stated that presumption will apply “unless it clearly appears that the tenant made it for his own benefit”. In Smirk Pennycuick VC also held that the presumption could be rebutted “by any form of express or implied agreement or, in some cases … by estoppel.”

29.               In Mayor and Burgesses of the London Borough of Tower Hamlets v Barrett [2005] EWCA Civ 923 Neuberger LJ held that the presumption of encroachment was not rebutted as the use of the disputed land was, with one exception, “directly connected with the business carried on” on at the demised premises. The demised premises were a public house and the disputed land was enclosed and used for the storage of chattels used in connection with the public house business such as beer kegs and crates. A scrap dealer was also permitted to store items on the disputed land for a period.

30.               Paragraph 197 of the 2006 Reissue of Volume 27(2) of Halsbury’s Laws of England summarises the circumstances in which the presumption arising on encroachment by a tenant can be rebutted.

“The presumption that an encroachment by the tenant enures for the landlord's benefit may be rebutted by proving that the landlord and the tenant so conducted themselves as to show that the landlord treated the encroachment as not enuring for his benefit. Thus, if the landlord on application refuses his consent to an encroachment and the tenant nevertheless incloses and builds, the presumption is rebutted. Again, if, after an encroachment has been made, the land encroached upon is severed from the demised premises by a conveyance to a third person and the severance is brought to the landlord's knowledge, the presumption is rebutted; but, if the landlord is allowed to remain under the belief that the encroachment is part of the holding, the tenant is estopped from denying it.”

31.               At paragraph 90-91 of Mayor and Burgesses of the London Borough of Tower Hamlets v Barrett [2005] EWCA Civ 923 Neuberger LJ considered the relevance of any events that occur after the 12 year statutory period for establishing title by adverse possession.

“ As a matter of principle, once the 12 years of adverse possession have been established, the paper owner loses his title, and someone, either the landlord or the tenant, acquires it. The ownership of land should not, in my view, be in limbo, or be treated as being in limbo, save where statute requires it. Once the 12 years are up, one would expect that either the landlord or the tenant obtains possessory title to the land. If it is the landlord who then acquires title, the land is added to the holding comprised in the tenancy; if it is the tenant, then he holds the freehold of the land in possession. The subsequent acts and statements of those parties may be relevant as casting light on what they intended or believed at the end of (and indeed during) the 12-year period (and in an extreme case they may give rise to a subsequent estoppel).”

Estoppel

32.               Where a representation of existing fact is made with the intention of inducing the representee to rely on that representation and the representee so relies to his detriment then the law will prevent the party making the representation from denying the truth of the representation made.

33.               An example of an unsuccessful claim based on an estoppel by representation is Ellis v Lambeth Borough Council (1999)32 HLR 596. The Court of Appeal accepted that the failure to return community charge registration forms amounted to a representation that the claimant was not in occupation but held that this did not give rise to an estoppel as the defendant did not believe the representation and did not suffer any or any material detriment.

 

THE SITE INSPECTION

34.               From the site inspection I was able to observe that the main buildings of the Fox and Hounds immediately abut the B5426 Bangor Road. Behind the main buildings is a car parking area which is reached by a vehicular access from the road to the east of the main buildings. To the west of the main buildings there is a beer garden area.

35.               I was able to observe at the site inspection that the boundary of the Fields on the western and eastern sides is marked by established hedgerow. The southern boundary is marked by the start of untended land and the northern boundary is a combination of fence, bush and a gated entrance on the eastern side. This gated entrance is roughly in line with the main vehicular entrance to the Fox and Hounds car park described above. To access the Fields in a vehicle it is necessary to enter through the Fox and Hounds vehicular access, cross the Fox and Hounds car parking area and then enter the Fields through the gated entrance.

36.               The use of the Fields as a caravan and camp site was evident on the site inspection. There are “hook-ups” for 10 caravans on the Fields and there are also water supply and shower facilities. There were a number of caravans present on the Fields at the time of the inspection. There is a pedestrian access from the more northerly of the Fields into the beer garden area.

 

DOCUMENTARY EVIDENCE

37.               The Camping and Caravan Club have confirmed that Eyton Fields Caravan Park opened as a certificated site in June 1982. The recorded owners of the certificated site were Mr B Griffiths from 1982 – January 1996, Mrs P Mizen from January 1996 to August 1998, Mrs K Owen from August 1998 to June 1999 and the Applicant from June 1999 onwards.

38.               There are copies of three tenancy agreements between the Applicant and various landlords available. The first is dated 15 March 1999 and is expressed to be between “John Marston’s Landlords Limited” and the Applicant. It is stated to be an “Express Tenancy at Will” and the premises are described as “all that messuage or tenement & licensed premises known by the sign of THE FOX & HOUNDS situated at Eyton in the County of Clwyd.” This tenancy at will was stated to be at a nil rent.

39.               The Applicant was granted a licence for the sale of intoxicating liquor at the Fox and Hounds on 15 April 1999. The 1999 Justices’ On Licence describes the owner of the Fox and Hounds as “Marstons”.

 

40.               A TR1 transfer document dated 31 January 2000 states that there was a transfer by Marston, Thompson & Evershed Limited to KUC (Public Houses) Limited of the freehold of the land and buildings known as the Fox and Hounds.

 

41.               The hearing bundle includes a January 2010 official copy of the register for the Fox and Hounds. This indicates that title to the Fox and Hounds was first registered in March 2001, presumably following the transfer to KUC (Public Houses) Limited.

 

42.               The hearing bundle also includes a tenancy agreement made between KUC (Public Houses) Limited (by its agent) and the Applicant dated 5 July 2005 (“the 2005 tenancy”). The premises are defined as “FOX & HOUNDS, EYTON, WREXHAM, LL13 0YD”. No plan was attached. The tenancy agreement provided for a three year term from 1 June 2005.

43.               Clause 1.2.1.1 defines the Landlord as “the person from time to time entitled to the reversion immediately expectant on the Tenancy Period.” Clause 1.2.1.6 defined "the premises" as “including any alterations or additions to the Premises” and clause 1.2.1.4 defines "Other Property" as “ adjoining or neighbouring premises (if any) or to be owned by the landlord during the Tenancy Period.”

44.               Clause 6.3 has the title “Exclusion of Other Easements” and states:

“the Premises and the Tenant are not to have any easements and right over Other Property (other than those expressly granted by this Tenancy) and are not to have any rights of light or air which would interfere with the use for any purpose of any Other Property”

45.               A TR5 Transfer document dated 25 February 2006 records the transfer from KUC (Public Houses) Limited to Admiral Taverns(Pyramid) Limited of various public houses including the Fox and Hounds which is identified by its title number CYM19132

46.               Admiral Taverns (Pyramid) Limited was registered as proprietor on 12 June 2007 pursuant to a transfer entered into with Calmdean Limited and Mildean Limited.

47.               The Applicant’s current tenancy is dated 19 March 2009 and was entered into with Admiral Taverns (Pyramid) Limited (‘the 2009 tenancy”). The 2009 tenancy granted the Applicant a three-year term from 1 November 2008. The premises demised by the 2009 Tenancy are described as:

“the land and buildings known as the Fox and Hounds, Eyton, Wrexham, Clwyd, LL13 0YD edged red on the attached plan registered at HM Land Registry under Title No CYM 19132”

48.               Clause 1.3(a) of the 2009 tenancy states that the term Landlord has the meaning set out in section 28 of the Landlord and Tenant (Covenants) Act 1995. Section 28 defines the Landlord “as the person for the time being entitled to the reversion expectant on the term of the tenancy”. Clause 2.2 of the 2009 tenancy provides:

“The Tenant is not entitled to any rights over Neighbouring Premises except those expressly set out in part 1 or schedule 1 and section 62 of the Law of Property Act 1925 does not apply to this tenancy.”

49.               Neighbouring Premises is defined as “any property adjoining or near to the Property”.

50.               The Applicant has produced a series of emails from 2009 which relate to a possible sale of the Fox and Hounds. On 31 May 2009 The Applicant sent an email to Mr Cameron, an agent acting for Admiral on the sale of part of its estate, which referred to a meeting which had taken place on 14 May 2009. In the email the Applicant stated that she would be prepared to offer £185,000 to purchase the Fox and Hounds.

51.               On 16 June 2009 Mr Cameron stated that he had emailed the Applicant “a couple of weeks ago” and stated that “Admiral will sell you the Fox and Hounds”. He asked the Applicant to telephone him to discuss the sale. No alternative price was mentioned in Mr Cameron’s email but the impression given is that the Applicant’s offered price was accepted.

52.               The next email disclosed is dated 9 August 2009 and is from the Applicant to Mr Cameron. It refers to a meeting that took place on 5 August with “Steve and Carl”. I understand it to be agreed that this is a reference to Mr Lamb and Mr Wilson-Jones who gave evidence at the hearing. The meeting was described as being “about the field at the back of the pub”. This email contains the following statements by the Applicant:

“We have always presumed and were lead (sic) to believe that Wolverhampton & Dudley owned the land. Not having heard of the phrase “Adverse Possession” until Steve mentioned it I have done a little research and from what I can gather in layman terms is that I would be first in line before Wolverhampton & Dudley and Admiral to make a claim under these laws.”

53.               The Applicant proposed that:

 

“the sale of the pub within its original boundaries for £185,000 goes ahead as agreed. In the meantime, I sign an agreement that if at a later date I were able to claim the land under Adverse Possession laws, I will pay half the current value of the land at the time to Admiral. This would allow my backers and yourselves to proceed with the sale of the pub and Admiral not losing out on any potential value on the land in the future. It would also remove Wolverhampton & Dudley from the equation at the same time.”

 

54.               On 7 August Mr Stephen Lamb sent an email to Celia Pavitt of Addleshaw Goddard, solicitors who acted for Admiral’s disposal team. The email was copied to Mr Cameron and gave an account of the 5 August 2009 meeting. He stated:

 

“I met the Tt/purchasers & they confirmed they’d been in the property for about 10 years. They advised that the land at the back was in their opinion in the ownership of Wolverhampton and Dudley (no doubt Marstons now) and that previously people from our company had looked into this … Carl Wilson Jones was with me and confirmed he'd known the site since circa 2000 and was aware of the use of the front field and could sign a Stat Dec to that effect. The Tt’s confirm locals would confirm the user for longer still. With the change in rules at the Land Registry it would appear we could have difficulty establishing a valid claim and ultimately the additional value may only be agricultural plus limited caravan use.”

 

55.               On 12 August Mr Cameron put to the Applicant a subject to contract offer to sell the Fox and Hounds for the increased price of £215,000. This sum was stated to “include any rights we may or may not have to the land to the rear, there would be no further payments if the title of the land was rectified in due course.”

 

56.               On 16 August the Applicant responded stating that she and her backers were “now fully prepared to proceed with the sale on your terms of £215,000 subject to contract”. The Applicant stated that she would be in touch that week to finalise the details. On 12 September the Applicant sent an email to Mr Cameron referring to difficulties that had arisen with her backers’ solicitors. However, she confirmed that they had now been instructed to conclude the sale on the agreed terms within 7 days. Mr Cameron replied that he had instructed the Respondent’s solicitors to “conclude the sale assuming that they can sort out the contract”. This is the end of the email chain relating to the proposed sale to the Applicant.

 

57.               The Applicant has produced an internet print-out from “BusinessesForSale.com” in which the freehold of the Fox and Hounds is stated to be on the market for £250,000. The print-out is dated 13 December 2009 but there is no indication of when the item was originally posted.

 

58.               In April 2010 the Applicant applied for planning consent to construct a new access to the Fields from the north-western corner where the Fields directly abut the highway. In May 2010 Admiral Taverns (Pyramid) Limited objected to the Applicant’s planning application. The email of objection was written by Mr Lamb and stated that “there is already an access to this land through the pubs car park … creating another access in such close proximity will create a hazard for customers , staff and visitors of the pub as well as other road users.” The planning application was refused.

59.               The objection email also stated “I would point out that in the application there is confirmation that the land owner, in the name of Wolverhampton & Dudley Brewery, has been advised. The land is unregistered and ownership is uncertain from previous investigations. Furthermore the Applicant is Admiral’s lessee at the property and a condition of the lease is that no Planning Application will be made without our prior approval which has not been given.”

 

THE WITNESS EVIDENCE

60.               I heard oral evidence from the Applicant, her partner Mr William Burne, Mr Thomas Jones, Mr Stephen Lamb and Mr Carl Wilson-Jones. The witness statement evidence of Mr Damien Field and Mr Ernest Hughes was unchallenged and was also received into evidence.

The Applicant

61.               In addition to her oral evidence the Applicant relied on her witness statement dated 25th of May 2012 and her ST1 Statement of Truth in support of her Application.

62.               The Applicant confirmed that she entered into occupation of the Fox and Hounds pursuant to a tenancy at will with Marstons in March 1999. Prior to entering into the tenancy at will the Applicant stated that she did not know the Fox and Hounds. She viewed the Fox and Hounds on one occasion prior to becoming the tenant when she met the husband of the then tenant Mrs Owen. She noticed a caravan club sign but did not notice the Fields nor was she aware whether they were being occupied by Mrs Owen.

63.               A few weeks after becoming the tenant of the Fox and Hounds the Applicant spoke to Mr Brian Griffiths who had previously been a tenant of the Fox and Hounds. The Applicant's evidence was that she knew Mr Griffiths but was not aware until this meeting that he had previously been the publican of the Fox and Hounds. In that meeting she learned from him that he had previously used the Fields. He did not say who he considered owned the Fields but he did state that they may have been owned by “the brewery”. He did not mention Wolverhampton and Dudley brewery. In cross-examination the Applicant stated that at this stage it was her understanding that the Fields may have been owned by her landlord.

64.               The Applicant's evidence was that when she became the tenant the Fields were overgrown. She arranged for the grass to be cut and she and her partner Mr William Burne trimmed the hedges around the Fields. The Applicant then contacted the camping and caravan club and applied to be registered as the certificated site owner. Her evidence was that it was at this time that she discovered that Mrs Owen had previously been registered as the site owner with the Camping and Caravan Club. The Applicant accepted that she was aware, therefore, that previous tenants of the Fox and Hounds had also made use of the Fields.

65.               The Applicant has used the Fields as a caravan and campsite. The majority of the caravan and campsite customers visit in the summer months. During this period the gate at the entry to the Fields is generally left open but in the winter and at other times the Applicant closes it and locks it as necessary. The Applicant has never been contacted by anybody claiming to be the owner of the property.

66.               The Applicant’s evidence was that she has spent money improving the Fields. About a year after commencing the caravan business the Applicant installed a toilet block on the Fields. Later, in 2004, she installed 10 electrical hook-ups, five in the front field and five in the back field. The Applicant has produced more than 50 pages of receipts from 2004 to support her evidence in this regard.

67.               The Applicant stated that she had always seen the public house and the caravan site as separate businesses. She stated that none of her brewery landlords had ever taken any interest in the Fields. Although initially the Applicant expected that campers and caravanners at the Fields would bring trade to the pub business the Applicant's experience was that there was very little crossover trade. Her experience was that campers and caravanners bought their own food and drink rather than going to the public house. She stated that her takings at the public house do not particularly increase when there are caravans on the Fields.

68.               The Applicant has a policy of only allowing adults in the Fox and Hounds after 8 pm but she did not accept that prospective caravanners had telephoned her about this and been put off from visiting as a result. The Applicant stated that she did not keep any accounts of the income generated from the caravan site and did not include this income in in her accounts for the public house business. The Applicant accepted that, latterly, she had also stopped keeping accounts for the public house business.

69.               The Applicant was asked whether she considered that the caravan site could be run as a viable business separately from the public house. She considered that it was viable in its current state and that carrying out further modifications and upgrades would make it profitable. She accepted that her caravan and camping club certificate entitled her to have only five caravans in total on the site. She stated that the daily rate with a hook-up was £15.50 and without was £10. She stated that in a typical year about 40 caravans came to stay on the Fields and that it would be very rare for any of them to stay for more than a week. She stated that her income from the caravan business from March until late August 2012 had been approximately £1,500.

70.               As noted above, only three written tenancy agreements made between the Applicant and her brewery landlords are in evidence. The Applicant's evidence was that she has occupied pursuant to a succession of three-year tenancies starting in September 1999 (entered into following her initial occupation pursuant to the tenancy at will) and renewed thereafter in 2002, 2005 and 2009. The Applicant stated that she had tried hard to find copies of the 1999 and 2002 three-year tenancy agreements but had not been successful.

71.               The Applicant could not say, without looking at these leases, how the demised premises were described. She could not say whether the description was simply the Fox and Hounds or whether any plans were attached to the leases. The Applicant denied that she would have understood a lease which referred simply to the Fox and Hounds as including the Fields.

72.               In cross-examination the Applicant stated that although she thought that the Fields were owned by a brewery she did not know for sure and she had no reason to presume that a tenancy of the Fox and Hounds would include the Fields as well.

73.               The Applicant was cross-examined about the terms of the 2005 lease and clause 6.3 in particular. She did not accept that clause 6.3 should be understood as her agreement not to have any rights over the Fields. She stated that in 2005 she thought that no one owned the Fields as nobody had enquired about them. She stated that she did not think that her landlord at the time was the owner of the Fields.

74.               The Applicant was cross-examined about the terms of the 2009 lease and clause 2.2 in particular. When asked whether she accepted that the Fields were “Neighbouring Premises” her answer was that she was a licensee and not a lawyer.

75.               The Applicant accepted that Mr Wilson-Jones commenced visiting the Fox and Hounds in 2001 and that he would visit between four and six times a year. She stated that they never discussed the Fields. She did not assume that the Fields formed part of the tenancy but she stated that she could not say what he assumed to be the case. The Applicant had no recollection of meeting Mr Stephen Lamb prior to August 2009 but accepted that it was possible that he had attended the premises in or around 2007.

76.               In relation to the 5 August 2009 meeting at the Fox and Hounds between the Applicant, Mr Burne, Mr Wilson-Jones and Mr Lamb, the Applicant stated that this was the first time she had been involved in a discussion in respect of an adverse possession claim. In cross-examination the Applicant accepted that although she could recall a discussion about an adverse possession claim she could not remember who it was discussed would make such a claim. Her evidence was that following the 2009 meeting she was not aware that the Respondent would make an application for title to the Fields based on adverse possession.

77.               The Applicant accepted that she had stated at the meeting that the Fields were or could have been in the ownership of Wolverhampton and Dudley although she now accepted that that was not correct. She also accepted that she had named Wolverhampton and Dudley as the owner of the Fields in her 2010 planning permission application.

78.               The Applicant accepted that Thomas Jones came to see her in 2010 in connection with her planning application. She stated that she told him that the reason for her application was that she wanted to achieve a safer entrance to the Fields. She denied having made any mention of a drainage problem as being the reason for the planning application. She also strongly denied having told Mr Jones that the Fields were “nothing to do with her”.

William Burne

79.               William Burne is the Applicant’s partner. He signed a witness statement dated the 25 May 2012 and also gave oral evidence at the hearing. Mr Burne has lived with the Applicant at the Fox and Hounds since shortly after she became its tenant. Shortly after moving into the Fox and Hounds Mr Burne spoke to Brian Griffiths about the use and ownership of the Fields. Mr Burne’s oral evidence was that he assumed that Mr Griffiths considered that the land belonged to his former landlord Border Brewery but this was not discussed. Mr Griffiths stated that he had used the Fields to fatten up cattle and also for caravans. Mr Burne stated that prior to the Applicant taking a tenancy of the Fox and Hounds he had no knowledge of it.

80.               Mr Burne’s evidence was that he has maintained the Fields since they were initially cleared shortly after the commencement of the Applicant's tenancy. He confirmed the Applicant's evidence about the improvements they made to the Fields. He stated that he and the Applicant knew that they were only paying rent for the pub and not the Fields. He stated that they did not mention the Fields to any of their brewery landlords.

81.               Mr Burne set out in his witness statement how the Applicant came to make an offer to purchase the Fox and Hounds in 2009. The Applicant and Mr Burne had heard that Admiral was seeking to sell parts of its estate and so they contacted Mr Cameron to see if the Fox and Hounds would be offered for sale. They offered £135,000. Mr Burne states that initially Mr Cameron offered to sell for approximately £200,000 with a leeway of 10%. This prompted the Applicant to offer £185,000 as set out in the e-mails above.

82.               Mr Burne states that the backer who was going to assist the Applicant with the purchase of the Fox and Hounds was a Mr Guy Jones. It was Mr Jones's solicitor who, according to Mr Burne, raised the issue of the Fields with Admiral leading to the 5 August 2009 meeting. Mr Burne states that at the 5 August meeting Admiral's representatives said that the sale could not go ahead because of problems with the Fields. Mr Burne recalled Admiral’s representatives walking around the Fields prior to the meeting. In his view this was the first time that representatives of the landlord had taken any interest in the Fields.

83.               Mr Burne’s recollection is that Mr Lamb told the Applicant that in a few years she would be able to claim the Fields because of her adverse possession. Mr Burne did not accept that there was any discussion at the meeting of Admiral making an adverse possession claim. Following the meeting Mr Burne recalls that Admiral increased its price to £215,000. Guy Jones told him that Admiral wished to add VAT on top of this amount and that this prevented Mr Jones from going ahead with the purchase.

84.               Mr Burne estimates that only one out of every 10 persons using the Fields for caravanning or camping call into the Fox and Hounds for food or drink. He stated that it was only during bank holidays and summer holidays that the Fields were full. Mr Burne stated that he and the Applicant see the caravan business as totally separate from the public house business.

85.               Mr Burne was cross-examined about his witness statement in which he stated that the pub policy of not allowing children after 8 PM may have deterred potential caravan and campsite customers. His evidence was that this impression was limited to a single conversation that he had overheard in the beer garden.

86.               In cross-examination Mr Burne accepted that the Fields were not viable as a business in their current form but he thought that they would be if they were developed further. Mr Burne denied that he had ever assumed that the Fields were part of the premises demised with the Fox and Hounds. Mr Burne also stated that the Applicant had a series of three-year tenancies with her respective landlords during her occupation of the Fox and Hounds.

Ernest Hughes & Damien Field

87.               Two witness statements relied on by the Applicants were unchallenged. Mr Ernest Hughes’ witness statement is dated 14 May 2012. Mr Hughes is a long-term local resident and the Fox and Hounds has been his local public house for as long as he can remember. His evidence is that the Fields were used in the late 1970s and early 1980s as a little farm with chickens, pigs and sheep on it. He also recalls that there was a barn on the Fields for animals. His recollection was that the Fields have been used as a campsite for approximately the last 15 years.

88.               Mr Damien Field of the Camping and Caravanning Club confirms in his witness statement the dates and identity of the certificated owners of the site. Certificated sites are inspected annually.

89.               The Respondent relied on three witnesses of fact, Thomas Jones, Stephen Lamb and Carl Wilson-Jones, all of whom gave oral evidence.

Thomas Jones

90.               Mr Jones is employed by the Respondent and was employed by its predecessors as a business development manager. His witness statement, dated 23 May 2012, stated that he had this responsibility in respect of the Fox and Hounds since March 2009. In his oral evidence he stated that he had also performed this role in respect of the Fox and Hounds in 2004/5 but had omitted to mention this is his witness statement.

91.               His oral evidence was that he was aware in 2004/5 that the Fields were being used by the Applicant as a caravan park. He stated that he had visited the Fox and Hounds along with Mr Wilson-Jones. His recollection was unclear but he stated that he thought that he had asked Mr Wilson-Jones about the user of the Fields. His understanding was that the use of the Fields was ancillary to the use of the public house.

92.               Mr Jones had a role in the fixing of the rent that was charged for the public houses for which he was responsible. He explained that the rent was largely based on the profit and loss account for the public house concerned. He stated that his understanding was that the rent paid by the Applicant included the Fields. However, he confirmed that the income that the Applicant received from the Fields was not taken into account in the profit and loss account and was not included in the consideration of the rent. He thought that this was because the income from the Fields was very small and that Admiral did not wish to charge rent on a very small income.

93.               Mr Jones did not participate in any conversations about who owned the Fields. He was aware that the public house had been put on the market but the sale was dealt with by another part of the business. He considered that the Fox and Hounds was a mediocre pub which was better sold than kept within the company.

94.               Mr Jones stated that he was made aware that the Applicant had made a planning application in 2010. He was asked to find out why the Applicant had made the application for planning permission. He visited the site and spoke to the Applicant. He stated that the Applicant had told him that she had made a planning application as a way of dealing with a drainage problem related to the existing access to the Fox and Hounds car park and the Fields. Mr Jones also stated that the Applicant had told him that the Fields “were nothing to do with her”.

 

Stephen Lamb

95.               Mr Stephen Lamb has been employed by the Respondent as an estate manager since January 2007. His witness statement is dated 23 May 2012 and he also made a statutory declaration dated 19 April 2012 in support of the Respondent's opposition to the Application.

96.               Mr Lamb stated that within the first few months of his employment he visited the Fox and Hounds as part of his familiarisation with the estate he was managing. On this visit he did not meet the Applicant. His evidence was that on this visit he was aware of the Fields and assumed that the brewery owned the Fields because there was an access to the Fields from the Fox and Hounds car park. He was not aware until 2009 that the Fields were not included within Admiral’s registered title for the Fox and Hounds.

97.               Mr Lamb stated that his firm belief was that the Applicant's use of the Fields had been with the consent of her landlords and that the use of the Fields as a caravan park is ancillary to the public house business. He did not identify when or how the Applicant’s landlord had given the Applicant consent to use the Fields. He stated that he believed that the caravan park increased the income of the public house. In answer to my question, Mr Lamb stated that he thought that the Fields and the Fox and Hounds looked like a single unit.

98.               Mr Lamb gave an account of the 5 August 2009 meeting. He confirmed that he was aware at the meeting that the Fields did not form part of the registered title of the Fox and Hounds. He was also aware that the Applicant was hoping to purchase the Fox and Hounds. He stated that he was not aware of the price that was under discussion as this was dealt with by the disposals team. Mr Lamb's evidence was that his role was to inspect the property, see the lie of the land and check the facts as far as he could.

99.               Mr Lamb thought that the Fox and Hounds fitted a pattern that he had seen with other public houses within the Respondent's estate where the registered title did not reflect the full extent of the lands that "should have come over" when the property was purchased.

100.           Mr Lamb stated that he did not specifically recall discussing with the Applicant his view that the Fields belonged to Admiral. Mr Lamb stated that prior to the meeting he was aware of the concept of adverse possession and that on previous occasions he had asked tenants to sign statutory declarations in support of an application for adverse possession by the brewery. Mr Lamb said that they were four or five other cases in which Admiral were making applications for title to the registered on the basis of adverse possession.

101.           His evidence was that he discussed adverse possession with the Applicant although he did not recall discussing the making of a statutory declaration with the Applicant or asking that she assist Admiral. He stated that at this time it was thought that the Applicant would purchase the Fox and Hounds and therefore any issue concerning adverse possession was far away.

102.           In cross-examination Mr Lamb stated that he was absolutely certain that he did not say to the Applicant that she should apply to register title to the Fields on the basis of adverse possession. Mr Lamb stated that in all of the tenancy agreements with which he was familiar there was a clause which prevented the tenant from acquiring rights which were adverse to the landlord.

103.           Mr Lamb stated that he was aware that the price that Admiral sought for the Fox and Hounds increased after the 5 August 2009 meeting. He stated that he did not know whether this was as a consequence of his visit or the issue with the Fields.

104.           Mr Lamb was responsible for formulating the objection to the Applicant's planning permission application. He confirmed that he did not consider that Admiral had title to the Fields at the time when the objection was made. Mr Lamb denied that the objection was made to frustrate the Applicant. He considered that the access way applied for was dangerous.

105.           Mr Lamb's evidence was that the Respondent was considering making its own application for adverse possession of the Fields at the time it received the Applicant's application.

Carl Wilson-Jones

106.           Mr Wilson-Jones was a business development manager for Admiral and its predecessors in title between 2001 and September 2010. He had responsibility for the Fox and Hounds for various periods during this time. While it was within his responsibility Mr Wilson-Jones would visit the Fox and Hounds between four and six times each year.

107.           Mr Wilson-Jones stated that he became aware of the Fields in 2001. He presumed that they were part of the Fox and Hounds land as one had to cross the Fox and Hounds property in order to reach the Fields. He stated that it was only in 2008/2009 when the 2009 tenancy agreement was prepared that he appreciated that the Fields were not part of the Fox and Hounds title. His evidence was that it was the Applicant who pointed this out to him and that following this he raised the issue with Admiral. Mr Wilson-Jones’ oral evidence was that the Applicant had been surprised that the Fields were not included in the plan of the demised premises included in the 2009 tenancy agreement.

108.           Mr Wilson-Jones was aware that the Applicant had improved the Fields by installing the toilet and shower block and electrical hook-ups. He considered that this work was a standard tenant improvement. He agrees that the income from the caravan park was not taken into account in fixing the rent for the Fox and Hounds. Mr Wilson Jones did not imagine that there was a huge income from the caravan park business. He considers that the income from the caravan park was, nonetheless, all part of the income stream from the Fox and Hounds the business.

109.           Mr Wilson-Jones was present at the 5 August 2009 meeting. However, he suffers from chronic fatigue syndrome and was unable to remember the details of the meeting. He could not, for instance, remember whether there had been a discussion about price at the meeting.

 

SUMMARY OF SUBMISSIONS ON EVIDENCE AND LAW

110.           I have been provided with a skeleton argument by the Applicant and the Respondent. The Respondent also prepared an additional skeleton argument directed to the effect of Tomline. I also heard oral submissions from the Applicant and Respondent's representatives following the conclusion of the evidence. I summarise the Applicant and Respondent’s positions below.

Adverse Possession

111.           The Applicant’s position is as follows:

a.        The Fields are an enclosed space with natural boundaries. She has been in factual possession of the Fields since 1999. She has controlled the use of the Fields and the campers and caravanners who have entered upon the Fields have done so as her invitees.

 

b.       She has maintained and improved the Fields at her own expense and without any suggestion that she was not entitled to do so.

 

c.        There is no evidence that the Applicant's use of the Fields has been with the permission of any third party.

d.       The Applicant's evidence and the evidence of Mr Burne is that she intended to and did possess the Fields to the exclusion of others.

e.        There is no evidence that any other party has been in possession of the Fields during the Applicant's occupation. The fact that there has been no appearance by any party claiming to have documentary title over the Fields also supports the Applicant's claim

112.           Subject to its position in respect of the presumption of encroachment, the Respondent supports the Applicant’s contention that her evidence and the evidence she relies on is sufficient to establish that she has adversely possessed the Fields since shortly after March 1999.

Presumption of encroachment

113.           The Applicant accepts that the presumption of encroachment arises by reason of her status as tenant and the adjoining position of the Fields and the Fox and Hounds. The Applicant contends, however, that the presumption is rebutted on the evidence and she relies on the following points/contentions:

a.        The Fields and the Fox and Hounds are used separately for different purposes and with minimal crossover between the public house and the caravan and camping businesses.

b.       The Applicant’s expenditure of her own funds improving the Fields demonstrates that she was doing so for her own benefit not with the view of improving her landlord’s reversion.

c.        The Fields have a much larger area than the Fox and Hounds and cannot be considered to be an accretion for the benefit of the Fox and Hounds.

d.       Mr Jones's evidence that the Applicant was surprised in 2008 to discover that the plan attached to the 2009 tenancy did not include the Fields should not be accepted. This evidence was not included in Mr Jones’ witness statement nor was it put to the Applicant in her evidence.

e.        The Applicant does, however, rely on this conversation as further evidence that the Applicant intended to exclude the Fields from the premises granted in the 2009 tenancy agreement. Mr Jones stated that he raised the Applicant's query with Admiral yet there was no change to the plan or the description of the demised premises at any stage. The Applicant states that it is significant that the Respondent has chosen not to provide any evidence from its legal department to explain why the Fields were excluded from the 2009 tenancy agreement.

f.        The increase in the price that Admiral sought to charge for the Fox and Hounds following the 5 August 2009 meeting should be taken as evidence that Admiral did not consider that it had a claim to the Fields previously. Until 2009 Admiral and its predecessors in title had been entirely indifferent to the Fields and this was consistent with the Applicant's user of the Fields for her own benefit.

g.       At the hearing the Applicant also relied on paragraph A947 of Hill & Redman’s Law of Landlord and Tenant for the proposition that the presumption of encroachment could be rebutted where the landlord offers the encroached land for sale. The authority for this proposition advanced in Hill & Redman is King v Smith [1950] 1 All ER 533. The Applicant argues that Admiral’s conduct in 2009 in offering to sell the Fields was evidence that the presumption was rebutted.

h.       The Applicant’s application for planning permission in 2010 demonstrates that she saw the Fields as separate from the Fox and Hounds and wanted to obtain separate access to reflect this. The fact that she identified Wolverhampton & Dudley as the owner of the Fields in the planning application rather than herself should not be taken as an indication that she did not consider her occupation to be for her own benefit. She did not identify Admiral as the owner.

 

114.           As far are the relevance of the case of Tomline is concerned, the Applicant submitted that:

a.        The 2009 tenancy agreement is conclusive evidence that the parties conducted themselves in such a way as to make it clear that the presumption of encroachment for the benefit of the landlord's reversion should not apply.

b.       The discussion of the presumption of encroachment in Tomline is not obiter but rather there are two alternative ratios for the decision of James LJ.

c.        The Applicant’s evidence that she occupied pursuant to a series of three-year tenancies should be accepted. Although only copies of the 1999 and 2005 tenancies are available, descriptions of the demised premises as “the Fox and Hounds” should be taken as a clear exclusion of the Fields as there is no evidence to suggest that the Fields were known as the Fox and Hounds.

d.       Alternatively, the Applicant's position is that from 2009 onwards she has had a better claim to possession than the Respondent.

115.           The Respondent’s position is that the Applicant has failed to rebut the presumption of encroachment for the following reasons:

a.        The physical characteristics of the Fox and Hounds and the Fields support upholding the presumption. The Fox and Hounds and the Fields immediately adjoin each other and vehicular access to the Fields can only be obtained from the Fox and Hounds.

b.       The Applicant's user of the Fields was complementary to the public house business. Although both the Applicant and Mr Burne sought to minimise the benefits to the public house business of the caravan park business, they both accepted that there was some benefit. It is also likely that the prohibition on children in the Fox and Hounds after 8 PM reduced the benefit to the public house business of having a caravan site next door. The fact that income from the caravan site business was not taken into account in fixing the rent for the Fox and Hounds did not indicate that the businesses were separate but merely that the income from the caravan site was very small.

c.        The caravan park business is not viable without the public house business. Its turnover is modest and the lack of any accounts for the business demonstrates that it is merely a minor addition to the public house business.

d.       Mr Wilson-Jones’ evidence about the Applicant's response in 2008/2009 to the plan attached to the 2009 tenancy agreement supports the view that the Applicant had previously always regarded the Fields as part and parcel of the tenancy.

e.        The Respondent stated in closing submissions that I was not invited to make any findings of fact about events or user of the Fields prior to 1999 as the available evidence was too unsatisfactory to allow reliable findings of fact or inferences to be drawn. The Respondent nonetheless pointed out that, such evidence as there was, suggested that the Fields had been used in conjunction with the Fox and Hounds. I note that the Respondent’s position in respect of the undesirability of making findings of fact about events or use of the Fields prior to 1999 means that some points made in the Respondent’s Addendum Skeleton Argument relating to this period cannot be relied on.

f.        Even if the Applicant had always intended her user to be separate from the tenancy the evidence does not demonstrate that this was ever communicated to Admiral or its predecessors in title. The Respondent was not aware until the Applicant made her application that she claimed adverse possession of the Fields for her own benefit.

g.       The evidence of the Respondent’s witnesses was consistent. Admiral and its predecessors in title had regarded the Fields as being part and parcel with the Fox and Hounds and formed part of the demised premises.

h.       The increase in price at which the Fox and Hounds was offered for sale following the 5 August 2009 meeting is not be explained by Admiral understanding for the first time that title to the Fox and Hounds might include title to the Fields. The evidence concerning the increase in price was unsatisfactory and there were other possible reasons for the increase in price including the need to add VAT. The Respondent argued that the Applicant had not raised its point based on King v Smith [1950]1 All ER 533 prior to the hearing, did not produce a case report of the decision and therefore should not be entitled to raise this argument.

i.         The Applicant's 2010 planning permission application should not be taken as evidence that the Applicant considered that she was using the Fields for her own benefit. Instead, the Respondent invited me to find that the Applicant used a degree of subterfuge in respect of the planning permission application by failing to inform Admiral, by naming Wolverhampton and Dudley as the owner of the Fields and by telling Mr Jones that the reason for the planning application was a drainage issue.

 

116.           In respect of the effect of Tomline, the Respondent submitted:

a.        The observation that a subsequent grant of land which did not include the encroached land rebutted the presumption of encroachment was obiter the decision in Tomline and is not therefore binding .

b.       Tomline was a case concerning copyhold land and was therefore distinguishable from the current facts.

c.        Tomline is a difficult decision which, if given a wide application, would create significant uncertainty.

d.       It should be noted that Tomline requires there to be a clear description of the land excluding the encroached land for the presumption to be rebutted.

e.        The only tenancy agreement which could be argued to clearly exclude the encroached land is the 2009 tenancy. In that case the presumption should be taken to apply up to 2009. On this basis time only begins to run in the Applicant's favour from 2009.

f.        The available tenancy agreements prior to 2009 do not use language which clearly excludes the Fields from the demised premises.

g.       All of the evidence from 2009 onwards should be considered and the reality was that, even after the 2009 lease, the Respondent continued to conduct itself as if the encroachment on the Fields was for the benefit of the Fox and Hounds. In particular, the Respondent’s evidence should be accepted that it was a claim for adverse possession by the Respondent that was discussed by the parties at the 5 August 2009 meeting.

Estoppel

117.           Even if the Applicant succeeds in rebutting the presumption of encroachment, the Respondent argues that the Applicant is estopped from advancing a case that the encroachment was for her benefit, rather than for the benefit of the Respondent’s reversion, by reason of clause 2.2 of the 2009 tenancy.

118.           The Respondent argues that its predecessor in title relied on the clauses of the 2009 agreement, including clause 2.2, in deciding to grant the tenancy to the Applicant. Accordingly the Applicant is estopped from asserting her claim in proceedings between her and the Respondent.

119.           The Respondent also relies on clause 6.3 of the 2005 lease which, it maintains, also estops the Applicant from asserting that the encroachment was for her benefit rather than the benefit of Admiral’s reversion.

120.           The Applicant does not accept that, on a proper interpretation of the clauses, she is estopped from pursuing her application by the terms of either the 2005 or 2009 leases. She also questions whether the Respondent is entitled to rely on terms set out in these tenancy agreements as the Respondent was not party to them. Further, the Applicant contends that even if she is in breach of the terms of either the 2005 or 2009 tenancy agreements, the Applicant cannot show detrimental reliance on the representations made. The Applicant also argues that the Respondent’s remedy, if any, is limited to damages for breach of contract.

 

FINDINGS OF FACT AND CONCLUSIONS ON THE ISSUES IN DISPUTE

121.           I am conscious that the witnesses in this case are trying to recall events which occurred, in some cases, more than 12 years ago. I also keep in mind that it can sometimes be difficult to have a clear recollection of an event or a state of affairs which seemed unimportant at the time but which, years later, is relied on as being significant for legal reasons.

122.           I am satisfied that the witnesses who gave oral evidence before me did their best to recall events accurately. Where I have been unable to accept the evidence of witnesses it has been because it is inconsistent with either the documentary evidence or with other oral evidence that I have preferred.

Adverse Possession

123.           I accept the Applicant and Respondent’s submissions that the Applicant has been in adverse possession of the Fields since a date in March 1999. I accept her evidence and that of Mr Burne that she has been in factual possession of the Fields from a date shortly after the start of her tenancy at will on 15 March 1999. It was evident from the site inspection that the boundaries of the Fields, as described above, are clear and I find that this has been the case since March 1999. I find that the Applicant has had undisputed control over the defined area of the Fields since then. She has controlled who entered onto the Fields and has locked the gate to the Fields whenever she required.

124.           I accept the Applicant’s unchallenged evidence that no other party has sought to exercise control over the Fields since the Applicant’s possession began. I also accept her evidence and the supporting documentary evidence that she applied to be registered as the certificated owner of the caravan site and used her own funds to improve the Fields by the installation of a toilet block and electrical hook-ups for 10 caravans.

125.           I find that the Applicant has run a camping and caravan site business on the Fields since some point shortly after March 1999 and has taken the income generated from this business carried out on the land. I am satisfied on the basis of these findings that the Applicant used the Fields as an occupying owner might have been expected to deal with them.

126.           I also find that the Applicant intended to possess the Fields and control them for her own benefit. I find this on the basis of the Applicant’s own evidence and as reflected by her use of the Fields. The Applicant did give evidence that she thought that the Fields may have been owned by her original landlord or by the Wolverhampton & Dudley brewery. However, it is clear from the case law summarised in Pye that the intention necessary to establish adverse possession at law is an intention to possess rather than an intention to own.

127.           The Applicant applied to be registered as proprietor of the Fields on 11 April 2011. As the Applicant’s tenancy at will commenced on 15 March 1999 I am satisfied that the Applicant had been in adverse possession of the Fields for just over 12 years at the date of her Application.

Presumption of Encroachment

128.           Having considered the evidence and the submissions made by the parties I make the following findings of fact relevant to whether the presumption of encroachment has been rebutted in this case:

a.        The appearance of the Fields and the Fox and Hounds is that of two separate entities, one operating as a public house and the other operating as a camping and caravan site. While vehicular access to the Fields is through the Fox and Hounds it is not unusual for rights of way over land in separate ownership to exist. There is otherwise nothing in the physical appearance of the Fields to suggest that it is held along with the Fox and Hounds.

b.       I accept the Applicant’s evidence that when she entered into the tenancy at will in March 1999 she did not take any notice of the Fields and was not aware that they had been occupied by previous tenants of the Fox and Hounds. While it may be surprising that the Applicant did not carry out more extensive enquiries before entering into the tenancy at will, I accept her evidence in that respect. Consistent with her evidence, I find that she became aware shortly after becoming the tenant of the Fox and Hounds that there had been user of the Fields by previous tenants.

c.        The caravan site business carried on by the Applicant at the Fields was distinct from and largely unrelated to the public house business operated at the Fox and Hounds. I accept the Applicant and Mr Burne’s evidence that there was little overlap between customers of the two businesses and I also accept that their policy of excluding children from the Fox and Hounds after 8pm is unlikely to have had a significant effect on this state of affairs. I accept the Applicant’s evidence that caravan and camp site users rarely frequented the public house at any time of day.

d.       I accept the Applicant’s evidence that the caravan site business produced a modest income and I also accept the evidence of Mr Jones that the public house business itself was a mediocre one. While I find that the modest level of income generated by the caravan site business would certainly be insufficient to support the Applicant on its own, there was no evidence before me of any significant outgoings associated with the running of caravan site business and I am therefore unable to conclude that the caravan site business on its own is unviable as suggested by the Respondent.

e.        The Applicant’s evidence, supported by extensive documentary receipts, was that she invested in improving the Fields by installing washing facilities and electrical hook-ups on the site. I accept this evidence and find that this expenditure supports the Applicant’s evidence that she considered the Fields and the Fox and Hounds to be separate holdings and separate businesses.

f.        The description of the demised premises in the 1999 tenancy at will and the 2005 tenancy do not assist in determining whether the parties considered that the Fields were intended to be included in the demise. It is common ground that the description “the Fox and Hounds” included not just the physical premises but also surrounding land. There is nothing in the use of the words “Fox and Hounds” which allows a determination of whether this description included or excluded the Fields.

g.       I accept the Applicant’s evidence that she entered into three-year tenancy agreements with her then landlords in 1999 and 2002. Copies of these tenancy agreements have not been discovered but the grant of two earlier three-year tenancies is consistent with the later pattern of tenancies which are known to have been granted. However, without sight of the tenancy agreements concerned, I am unable to determine whether the description of the demised tenancies contained in them included or excluded the Fields. My finding that such tenancies existed does not, therefore, assist in determining the question of whether the presumption of encroachment has been rebutted in this case.

h.       The user provision contained in the 1999 tenancy at will is of assistance in determining whether the parties intended that the Fields were to be included in the demise. The 1999 tenancy at will provided that the demised premises should only be used “as a Public House”. If the Fields were included in the 1999 demise it is difficult to see what use could have been made of them consistent with this user covenant.

i.         I find that the 2005 tenancy agreement includes a number of provisions which suggest that the parties did not consider or intend that the Fields should form part of the demised premises. The “Permitted Use” provided was as a “fully licensed public house” and the Applicant covenanted not to use the demised premises “otherwise than for the Permitted Use”. By clause 2.11.15 the Applicant covenanted not to allow the parking of caravans on any part of demised premises without the consent of the landlord. Both the permitted user and the prohibition on the parking of caravan provisions would be very surprising provisions in a tenancy which was intended to include the Fields. The Fields were, by this time, well- established as a camping and caravan site.

 

j.         Mr Jones and Mr Wilson-Jones both gave evidence, which I accept, that the rent charged for the Fox and Hounds was largely based on the tenant’s profit and loss account for income generated from the tenancy. They agreed that the Applicant did not include her income from the camping and caravan site in her profit and loss account and that this income was not taken into account in determining the rent.

k.       Mr Jones and Mr Wilson-Jones’ understanding of the reason for the failure to take the income from the caravan site into account in determining the rent was that that the income was small and that the landlord would not have wanted to take a small income into account when determining the rent. While I accept that Mr Jones and Mr Wilson-Jones were doing their best to recall events, I did not find their explanation for the failure to include the income from the caravan site convincing. Had the Applicant’s various landlords considered that the Fields were part of the demised premises I would have expected that the landlords would have required income generated by the Fields to have been included in the profit and loss account presented to them, particularly where the overall performance of the public house was mediocre. Unless such income is included in the accounts the landlord is unable to ascertain whether the income is in fact small in comparison to other income generated from the tenancy. I find that the more likely explanation for the non-inclusion of income from the Fields in the profit and loss account and the exclusion of such sums from the assessment of rent is the landlord and the Applicant’s mutual understanding that the Fields were not included within the demise and were being used by the Applicant for her own benefit.

l.         I do not accept Mr Wilson-Jones’ oral evidence that the Applicant was surprised that the Fields were not included in the plan attached to the 2009 tenancy agreement. This allegation was not put to the Applicant and Mr Wilson-Jones accepted in his evidence that he had difficulty in clearly recalling in any detail the more recent events of the 5 August 2009 meeting.

m.     Mr Wilson-Jones’ evidence was that he raised the fact that the Fields were not included in the plan of the demised premises with his employers. There is no evidence from the Respondent or its predecessors in title explaining what happened as a result of this but it is undisputed that both parties signed the 2009 tenancy agreement which did not include the Fields in the plan of the demised premises.

n.       The parties agree that a meeting took place on 5 August 2009 and that there was a discussion about adverse possession. I accept Mr Burne’s evidence that the reason for this was that Admiral had been alerted about the possibility of making a claim in respect of the Fields. That this was the focus of the meeting is made clear both by Mr Lamb’s 7 August 2009 email to Celia Pavitt and the Applicant’s 9 August 2009 email to Mr Cameron.

o.       I accept Mr Lamb’s evidence that he discussed adverse possession with a view to an application being made by Admiral rather than by the Applicant. His recollection is consistent with the Applicant’s own email dated 9 August in which she states that following the conversation she had carried out some research which indicated that she may have a better claim to asserting title on the basis of adverse possession than Admiral.

p.       I find on the balance of probabilities that Admiral increased its asking price for the Fox and Hounds as a result of Mr Lamb’s inspection of the land and the meeting on 5 August. Within a week the price required by Admiral increased by £30,000 and Mr Cameron’s 12 August email, in which the increased price was requested, expressly refers to the inclusion in the sale price of “any rights we may or may not have in respect of the land to the rear.” I find that the increase in price following the 5 August 2009 meeting is consistent with and reflects Admiral’s prior understanding that the Fields did not form part of the demised premises and Admiral did not have an interest in the Fields.

q.       I find that the Applicant’s 2010 application for planning permission for alternative access to the Fields is consistent with and reflected her use of the Fields for her own benefit. Had the Applicant regarded the Fields as likely to revert to Admiral at the end of her tenancy it would be surprising for the Applicant to have incurred the costs and effort involved in making the application.

r.         The Applicant and Mr Jones give differing accounts of their conversation about the Applicant’s reasons for applying for planning permission. It is difficult to resolve this conflict of evidence but, in light of my findings of fact set out above, I do not accept Mr Jones’ evidence that the Applicant would have told him that the Fields were “nothing to do with her”. In the circumstances I also find that Mr Jones’ evidence concerning the Applicant’s stated reasons for applying for planning permission is not correct, most likely because of some form of misunderstanding between the Applicant and Mr Jones. Accordingly I do not accept the Respondent’s submission that the Applicant used a degree of subterfuge in making her 2010 planning permission application.

s.        I note Mr Lamb and Mr Wilson-Jones’ evidence that they understood the use of the Fields to be ancillary to that of the public house business. I accept that they had gained this impression but, on the basis of the findings I have made above, I find that this impression was not correct and in my view a more reliable indicator of the various landlord’s understanding of the status of the Fields can be gained from considering the terms of the tenancy agreements they entered into and from their conduct in determining the rent for the Fox and Hounds.

129.           In light of these findings of fact I conclude that the Applicant has rebutted the presumption of encroachment in respect of the Fields. I find on the evidence that neither the Applicant nor her various landlords intended her to occupy the Fields as part of her tenancy and that they conducted themselves so as to show that her encroachment on the Fields was for her own benefit rather than for the benefit of her respective landlord’s reversion.

130.           While there is limited evidence available of the position in 1999 at the start of the Applicant’s first tenancy, the evidence that is available is consistent with the presumption being rebutted. The user clause in the March 1999 tenancy at will is not consistent with the largest part of the demised premises being fields. Further, the Applicant’s evidence that she was unaware of the Fields at the time of the grant of the tenancy at will is also consistent with there being a mutual understanding between landlord and tenant that the Fields did not form part of the demise.

131.           Events following the grant of the tenancy at will in 1999 are consistent with and confirm that the Applicant and her landlords did not intend that the Fields should form part of the demised premises. The Applicant’s personal expenditure on improving the Fields together with her landlord’s disregard of the income from the Fields in determining the rent for the demised premises is clear conduct on behalf of both parties which indicates that the Applicant was occupying the Fields for the purposes of her own separate business and for her own sole benefit.

132.           The terms of the 2005 tenancy provide further evidence that the Respondent’s predecessors in title did not regard the Fields as forming part of the demised premises. The user provisions and the prohibition on parking caravans without consent both strongly indicate that the parties regarded the Fields as falling outside of the demised premises.

133.           I find that the plan attached to the 2009 tenancy, which does not include the Fields within the demised premises, is further evidence that the parties considered that the Fields were outside of the demise.

134.           I have carefully considered the submissions of both parties on the effect of what may be referred to as the Tomline principle: that the grant of a subsequent lease which excludes the encroached land rebuts the presumption of encroachment for the benefit of the landlord’s reversion . I agree with the Respondent’s submission that the Tomline principle is obiter the decision in Tomline. Each Lord Justice either held that there has been no encroachment and/or declined to decide whether the presumption of encroachment applied to copyhold land.

135.           Although obiter the decision, the judgments of each Lord Justice setting out the Tomline principle are authoritative statements of the law as it relates to leasehold property by members of the Court of Appeal. Tomline has been cited with approval in subsequent cases including King v Smith [1950] 1 All ER 553 and Mayor and Burgesses of the London Borough of Tower Hamlets v Barrett [2005] EWCA Civ 923. Further, the doctrine in Tomline is consistent with the statement in Smirk v Lyndale Developments [1975] 1 Ch 317 at 324 that the presumption of encroachment is rebutted by “any form or express or implied agreement”.

136.           The Respondent argues that the 2009 tenancy agreement does not use language which is sufficiently clear to show that the parties intended to exclude the Fields from the demise. I cannot accept this submission. By Clause 2.1 the demised premises are defined as the “Property” which is in turn defined by reference to the Land Registry title plan which clearly excludes the Fields.

137.           The Respondent also argues that its conduct subsequent to the 2009 tenancy agreement should be taken as demonstrating that it continued to view the encroachment on the Fields as inuring to its benefit. On my findings of fact this submission cannot be supported. The available evidence in respect of the abortive sale of the Fox and Hounds in 2009 demonstrates that until August 2009 Admiral did not regard the encroachment as forming part of the demised premises or inuring for its benefit. This is consistent with the terms of the 2009 tenancy agreement it had recently entered into and with the available evidence since the start of the Applicant’s first tenancy.

138.           In closing submissions the Applicant sought to rely on King v Smith [1950] 1 All ER 533 as an additional ground for holding that the presumption of encroachment had been rebutted. The Respondent objected as set out above. Given my findings set out above the Applicant does not need to rely on King v Smith to establish that she has rebutted the presumption of encroachment. For completeness I have considered King v Smith and in my view it does not assist the Applicant. On the facts of King v Smith the offer for sale of the encroached land and the former tenant’s willingness to purchase it were held not to rebut the presumption of encroachment.

Estoppel

139.           The Respondent argues that the terms of her 2005 and 2009 tenancy agreement estop the Applicant from pursing the Application. The Respondent relies on clause 6.3 of the 2005 tenancy agreement and clause 2.2 of the 2009 tenancy agreement.

140.           The Respondent’s argument based on the provisions of the 2005 tenancy agreement cannot, in my view, succeed. The 2005 tenancy agreement was determined in 2009. Any statements within it which can be properly regarded as representations of fact cannot be considered to be continuing representations of fact after the tenancy came to an end.

141.           Even if the Respondent could rely on the terms of the 2005 tenancy, the wording of clause 6.3 applies to both the “Premises” and the “Tenant”. The Premises are defined by the 2005 Agreement as the Fox and Hounds. As the Respondent’s case is that the Applicant’s encroachment was for the benefit of the Fox and Hounds, clause 6.3 is, on this interpretation, an agreement that neither the Applicant nor the Fox and Hounds could have any right over “Other Property”. The meaning of the expression “rights over” property is discussed further below.

142.           Subject to any developments in the forfeiture proceedings, the 2009 tenancy agreement subsists and by clause 1.3(a) the Respondent, as the party currently entitled to the reversion, is within the definition of Landlord set out therein. It is none the less my view that the Applicant is not estopped from pursuing the Application by reason of clause 2.2 of the 2009 tenancy agreement.

143.           It is necessary to consider, as a matter of interpretation, what the function of clause 2 is in the 2009 tenancy agreement and what is meant by the statement that the Applicant “is not entitled to any rights over Neighbouring Premises”. In my view Clause 2 sets out the property that is to be included in the demise. Clause 2.1 sets out what property is included in the demise and additionally sets out what rights in respect of that and other property are reserved or granted. Clause 2.2 sets out what the demise does not include. Rights over Neighbouring Premises are not included in the demise.

144.           That clause 2.2 is addressed to what rights are included in the demise is made clear by the reference to the exclusion of section 62 of the Law of Property Act 1925, which otherwise operates to imply words into a conveyance. In the circumstances clause 2.2 is properly interpreted as a statement of what rights are included within the demise and is not a representation by the tenant as to her conduct in respect of Neighbouring Premises.

145.           If the analysis above is not correct, there remains the issue of what is meant by the words “rights over Neighbouring Premises”. The Application is based on the Applicant’s assertion that she has acquired title to the Fields. This raises the question of whether the acquisition of title can be considered to be a right over land. Looking at the context in which the word “rights” is used in clause 2, the rights which it grants (which are set out in schedule 1 to the 2009 tenancy agreement) are rights in respect of the use of property, such as easements. In the context of clause 2 of the 2009 tenancy agreement I find that the words “rights over” is used to refer to rights in respect of property rather than to the title to property itself.

146.           To establish a claim based on estoppel the Respondent would need to be able to establish that it has relied on the representation alleged to its detriment. While the Respondent has identified its decision to take a transfer of the freehold as its reliance on clause 2.2 it cannot make out a relevant detriment. I have found above that the Respondent consistently conducted itself in a manner which demonstrated that it regarded the Applicant’s encroachment as being for the Applicant’s benefit. This was not least in its exclusion of the Fields from the demise plan in the 2009 tenancy agreement itself. In the circumstances the Application is consistent with the mutual understanding of the parties and the Respondent has not therefore suffered any detriment as a result of the Application.

 

ORDER/DIRECTIONS/COSTS

147.           In light of my findings and conclusions I have prepared an order directing the Chief Land Registrar to give effect to the Applicant’s amended Application to be registered as proprietor of the land shown edged red on the Land Registry illustrative plan dated 14 November 2011.

 

148.           I circulated a draft version of this Decision on 15 November and requested suggested typographical errors. I am grateful to the representatives for forwarding these.

 

149.           When the draft decision was circulated I gave directions for the service of costs submissions and submissions in response. To date I have only received costs submissions from the Respondent and it appears that these submissions may not been served on the Applicant contrary to the requirements of the direction. I have not received any costs submissions from the Applicant. I have therefore included in the order a further direction for the expedited filing and serving of costs submissions. If any party does not intend to make submissions in relation to costs they should inform the Adjudicator’s office that this is the case so that further delay is avoided.

Dated this 7 day of January 2013

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY