PROPERTY CHAMBER

FIRST –TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

REF/2013/0833

 

BETWEEN

 

Alan Perry McLeod

Applicant

and

 

(1)  Christopher Brown

(2)  Julie Carol Jones

Respondents

 

Property Address: Land on the West Side of 589 Wells Road, Knowle, Bristol BS14 9BA

Title Number: BL131621

 

 

Judge Colin Green

 

At: Bristol Magistrates Court

On: 26^th June, 2013

 

 

 

DECISION

 

 

Introduction

1.                        This reference arises in the following circumstances. By a Transfer dated 17^th December 1993, Mr. McLeod, the Applicant, transferred to Christopher Brown, the First Respondent, and his then wife: Julie Carol Brown, the Second Respondent:

“the land shown edged red on the plan annexed hereto and known as 589 Wells Road Knowle Bristol (hereinafter called “the Property”) being part of the land comprised in the title above mentioned TOGETHER WITH the rights and easements set out in the first schedule hereto and RESERVING for the benefit of the land in this title retained by the Transferor (“the Garden”) the rights and easements set out in the Second Schedule hereto”

2.                        Although my copy of the plan is not in colour, it would seem that the whole of the land comprised in title BL1731 was outlined in red on the plan, but as the parcels clause makes clear – and was not disputed by Mr. McLeod and Mr. Brown – part of that title was to be retained by Mr. McLeod, being a parcel of land at the western end of the plot, defined as “the Garden”.

3.                        Clause 3 a) of the Transfer provided:

“The boundary between the Property and the garden shall consist of the chain link fence in place at the date hereof marked with a “T” on the plan annexed hereto. The said fence shall henceforth be repaired and maintained by the Transferee.”

The plan has a line marked with a “T”, within the red edging, and the Land Registry interpreted that line as the division between what was being transferred and the Garden retained by Mr. McLeod. Mr. and Mrs. Brown were registered under the new title: AV235397 and Mr. McLeod remained the registered proprietor under BL1731 in respect of the Garden. The filed plans to both titles reflected the T mark line on the Transfer plan, which was shown roughly in line with some adjoining tennis courts to the south.

4.                        Other relevant provisions in the Transfer are as follows. The First Schedule (rights and easements granted) provided:

“The right to enter onto the garden for the purpose of repairing or maintaining the chainlink fence referred to in clause 3(a) SUBJECT TO the person exercising the right doing as little damage as possible and making good any such damage done as soon as reasonably possible thereafter.”

The Second Schedule (exceptions and reservations) provided:

“the right to enter upon the property for the purpose of tending the privet hedge on the garden adjoining the chain link boundary fence”

By clause 2, Mr. and Mrs. Brown entered into the restrictive covenants set out in the Third Schedule, which provided, in respect of the land hatched blue on the plan:

“1. Not to use the land hatched blue for any purpose other than as a private garden ancillary to the use of 589 Wells Road Knowle Bristol as a private dwelling house which for the avoidance of any doubt shall include any aviary or other construction duly approved pursuant to clause 3 below.

2. ...

3 Not to construct erect or permit the erection of any building on or over the said land except a portable removable garden shed, greenhouse or aviary previously approved by the Transferor (such consent not to be unreasonably with held) and in any event not to make any such construction or erection within two feet of the aforesaid chain link boundary fence.”

The land hatched blue is an area of land immediately to the east of the T mark line.

5.                        The issues that have arisen are as the result of Mr. McLeod’s contention that the T mark line on the Transfer plan was not in the correct position on that plan, and that it should have been further to the east, where the hedge and chain link boundary fence were actually located. As a result, the land shown on the filed plan to Mr. and Mrs. Brown’s title is larger than it should have been, and the land shown on his filed plan shows a much smaller area of retained land.

6.                        Mr. McLeod’s application to the Land Registry (received on 1^st March 2013) was not for the rectification of the plan to the 1993 Transfer, however – pursuant to s. 108(2) of the Land Registration Act 2002 – but rather, an application for registration as a person who had been in adverse possession of the disputed land, pursuant to the provisions of Schedule 6 to the 2002 Act, paragraph 1(1) of which provides:

“A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.”

7.                        In paragraph 13 of his statutory declaration in support of the application, made on 26^th February 2013, Mr. McLeod stated that if any person given notice of the application gave notice that they required it to be dealt with under paragraph 5 of Schedule 6, he would rely on the boundary condition set out in paragraph 5(4). This provides as follows:

“The third condition is that—

(a) the land to which the application relates is adjacent to land belonging to the applicant,

(b) the exact line of the boundary between the two has not been determined under rules under section 60,

(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and

(d) the estate to which the application relates was registered more than one year prior to the date of the application.”

 

8.                        The declaration was supported by a plan prepared by David James & Partners which showed the retained land up to the position of the chain link fence contended for by Mr. McLeod, edged red. The Land Registry have also produced a plan which shows the land claimed from Mr. and Mrs. Brown’s title edged red (Mr. Brown had a copy on which it is shaded blue) (“the Disputed Land”).

9.                        Notice of the application was given to Mr. and Mrs. Brown at 589 Wells Road. By a form NAP dated 24^th April 2013, Mr. Brown objected to the application and required that it be dealt with under paragraph 5 to Schedule 6. No objection was made by Mrs. Brown. She and Mr. Brown were divorced about ten years ago and she has since remarried. Mrs. Jones – as she now is – has remained a joint registered proprietor as she retains a beneficial interest that is to be realised in the near future as the result of provisions made on the divorce. Accordingly, she was joined as a Second Respondent by paragraph 3.1 of the order dated 14^th January 2014 so that she would be bound by the final order made, but she has taken no part in the proceedings. She spoke with the Land Registration Division on the telephone on 23^rd June and said that she was unsure if she could attend the hearing, but was happy for it to proceed in her absence. According to Mr. Brown, Mrs. Jones told him the same in a telephone conversation on the evening prior to the hearing.  

10.                        In the light of the above, the issues I have to decide are as follows:

        10.1.                        was Mr. McLeod in adverse possession of the Disputed Land for the period of at least ten years ending on 1^st March 2014?;

        10.2.                        if so, did he believe that the Disputed Land belonged to him, and was that belief reasonable? The other conditions – at paragraphs (a), (b) and (d) of paragraph 5(4) – are clearly satisfied.

11.                        I had the benefit of a site view on the afternoon before the hearing. Mr. McLeod and Mr. Brown did not have legal representation, and I am grateful for the way in which they assisted me in understanding their respective cases, both at the site view and during the hearing.

Adverse Possession

12.                        I heard testimony from Mr. McLeod and Mr. Brown. Mr. McLeod had relied on a statutory declaration made by Arthur Alexander in support of his application, but he was unable to attend the hearing as he was on holiday. Given that I was unable to hear any testimony from Mr. Alexander, and that his evidence could not be subjected to questions from either Mr. Brown or myself, I have decided to give no weight to his evidence and my findings do not take account of his declaration.

13.                        Two different accounts of what has occurred were presented by Mr. McLeod and Mr. Brown. According to Mr. McLeod, the boundary agreed between he and Mr. Brown during the negotiations for the sale in 1993 was the chain link fence that stood to the east of the hedge, immediately in front of it. The hedge had been in position for a number of years and separated the top end of the garden, nearest to the house, from land that had been allowed to become overgrown. A path led down a more or less central position in the garden (which remains) to a metal gate in the hedge. The chain link fence was constructed because dogs could gain access to the garden through the hedge.

14.                        Mr. McLeod wished to retain the overgrown land, to the west of the fence, to use as a garden as he was purchasing a flat nearby, and access to the retained land can be obtained via a track that runs from the main road, adjoining 587 Wells Road, behind such land (a right of way is registered on the Property Register to Mr. McLeod’s title). Once the purchase took place, he turned the retained land into the garden area that can be seen in various photographs. Comparing photographs taken in the mid-1990s with photographs taken in 2010 and subsequently show the following changes. The hedge was of some height but has been cut back in both height and width. A shed was positioned in the north eastern corner of the plot, adjoining the hedge, which subsequently was moved towards the western end of the plot. In 2010 the wire mesh fence was extended upwards and reinforced with wooden struts, due to Mr. Brown having put 589 on the market for sale. Mr. McLeod wished to reinforce the boundary structure between the two properties. Mr. McLeod also replaced the fence panels on the southern side of the land, to the point of the wire mesh fence.

15.                        As is clear from the terms of the restrictive covenant, Mr. Brown was keen to build an aviary on the land he was purchasing, and prior to completion he submitted a plan to Mr. McLeod for approval. This shows the rear of the proposed aviary located two feet from the hedge.

16.                        Mr. McLeod wrote to Mr. Brown by a letter dated 14^th July 2010 stating that he had decided to sell his land, but was giving Mr. Brown first refusal. Mr. McLeod explained that this was because at the time of purchase Mr. Brown had asked that he be given first refusal if he should want to sell the land, to which Mr. McLeod had agreed. They met, and Mr. Brown expressed an interest in purchasing the land, but the matter was taken no further. Eventually, in 2012 Mr. McLeod began negotiations with a Mr. Coward and his family, who were proposing to develop adjoining land into a number of houses. During those negotiations, one of Mr. Coward’s sons, who is a surveyor, realised that the land which Mr. McLeod was proposing to sell – up to the wire mesh fence adjoining the hedge – was not the extent of the land of which he was registered according to the filed plan. He notified either Mr. McLeod or his solicitor of this (Mr. McLeod cannot remember which) and by a letter dated 18^th July 2012 Mr. McLeod’s solicitor wrote to him enclosing a copy of the 1993 Transfer, and expressing the view that it he did not think it was possible that the Land Registry had misinterpreted the Transfer, but suggesting other alternatives in order to remedy matters. 

17.                        Mr. Brown’s version of events differs from Mr. McLeod‘s in the following respects. He accepts that the hedge has remained in the same position since 1993, albeit that it has been trimmed back, but he cannot remember if there was a wire mesh fence in front of it at the time he purchased. He says that when he viewed the property the land at the rear was not overgrown, and that Mr. McLeod had said that he wished to grow vegetables on the land he was retaining, not use it as a garden. In my view, nothing turns on those points. More significantly however, Mr. Brown says that the wire mesh fence which they agreed would form the boundary was some distance to the west of the hedge, approximately two panels back from the line of the current fence, so that it would have been a distance behind the shed in the north western corner. This would place the wire mesh fence at roughly the position of the T mark line shown on the Transfer plan.

18.                        Mr. Brown also says that notwithstanding this agreed boundary, Mr. McLeod asked him if he could use the additional land from the line of the fence just described up to the hedge, and he agreed. Therefore, Mr. Brown is contending that the Disputed Land was to be included in the sale, but that nevertheless, he gave Mr. McLeod permission to use it at the time of the sale.

19.                        For the following reasons I prefer Mr. McLeod’s version of events and find that the chain link fence that was to mark the boundary was in the position contended for by Mr. McLeod, being the position of the current fence adjoining the hedge.

        19.1.                        It is clear from the terms of the Second Schedule to the Transfer that the privet hedge was within “the garden” – defined as the land being retained – and that it adjoined the chain link fence that formed the boundary between the land being sold (the Property) and the land retained (the Garden). This is consistent with what Mr. McLeod has said was the position on the ground at that time, and has remained the position, but is quite inconsistent with Mr. Brown’s account. According to him, the boundary fence was some distance to the west of the hedge, not adjoining it, so that the hedge would not have formed part of the Garden but of his Property, and there would be no point in reserving a right to tend a hedge all of which was located well within Mr. and Mrs. Brown’s property, and which would have belonged to them.

        19.2.                        Mr. McLeod’s evidence was that the chain link fence adjoined the hedge, and remains in position, although increased in height in recent years, whereas Mr. Brown could not remember if there was a fence in that position at the time of purchase. The photographs from the mid-1990s show metal posts in that location, between which there appears to be wire mesh, albeit not very clearly.

        19.3.                        I do not consider that it was coincidence that the plan submitted for approval by Mr. Brown showed a distance of two feet between the rear of his proposed aviary and the hedge, as this is the minimum distance provided for in paragraph 3 of the Third Schedule between any construction or erection and “the aforesaid chain link boundary fence”. The aviary has been demolished in the last five months, but it’s footings remain and it is clear from them, and the 1990s photographs, that the rear of the aviary was probably rather more than two feet from the hedge, presumably in order to allow sufficient space to access the rear of the aviary for maintenance and repair. This does not prevent inferences being drawn from the initial plan, however.

        19.4.                        There is no apparent reason why a fence would have been erected in the position alleged by Mr. Brown, which would not have served any useful purpose and represents a somewhat arbitrary boundary between the land to be sold and that retained. On the other hand, the wire mesh fence that Mr. McLeod says was in position in front of the hedge prevented dogs getting under the hedge and would seem a rather more obvious location for splitting ownership.

        19.5.                        It would be somewhat odd for Mr. McLeod to have agreed a boundary division in respect of land which he was to retain and work on, and then ask for permission to use an additional area of land – the Disputed Land – for exactly the same purpose. Further, one would have expected one or both parties to have mentioned this further agreement to their solicitors, and for it to have been drawn up in an agreement for the use of the additional land, either in the Transfer or by a separate document. The absence of any written record of the alleged arrangement suggests that there was no such agreement.

        19.6.                        There is of course, the plan to the Transfer which, like the Transfer itself, was signed by all parties. In my view however, it is the only documentary evidence that suggests that the wire mesh fence was in a different position than immediately adjacent to the hedge, and I consider that the matters mentioned above – including the terms of the Transfer itself – outweigh the Transfer plan: the T mark line shows the wire mesh fence in the wrong position.

20.                        Accordingly, I find that the wire mesh fence – the agreed boundary – was in the positon of the fence that is currently adjacent to the hedge, which is the eastern boundary of the Disputed Land, and that Mr. McLeod was in possession of the whole of the Disputed Land, as well as the land within his title, from the date of the Transfer until 1^st March 2013.

21.                        Such possession cannot have been adverse if he was in possession with Mr. McLeod’s consent, but in the light of the above, I do not accept that any permission was either sought or given. Since the wire mesh fence was not in the position Mr. Brown said it was, Mr. McLeod would not have needed to ask for permission to use the Disputed Land, which fell entirely within the land he was to retain and which in error, was included in the Transfer plan as within the land to be transferred to Mr. and Mrs. Brown.

22.                        Therefore, Mr. Brown has been in adverse possession of the Disputed Land for well in excess of the ten years ending on the date of his application.

Reasonable Belief

23.                        I should make it clear how I have construed the provisions of paragraph 5(4)(c), quoted above. I have taken the view that the period of at least ten years during which the reasonable belief is required is not necessarily the same as the period of at least ten years ending on the date of the application for which adverse possession must be established. One must first determine the period of adverse possession, which must be a minimum of ten years ending on that date. However, although the belief must have been had during the period of adverse possession, and must have been held for at least ten years, it does not have to be established as continuing up to the date of the application. If that were the case few, if any, applications under Schedule 6 in which the third condition was in issue could ever succeed. By the time the application is made, and for a period beforehand, the applicant knows that the title to the land in question is registered in the name of another person, hence the application. Once they have such knowledge, necessarily: the applicant cannot believe that he or she owns the land, or such a belief cannot be reasonable. I consider that such a consequence was not intended, and it is possible to fairly construe paragraph 5(4)(c) to avoid such a result. The words “ending on the date of the application” qualify the period of adverse possession, and do not apply to the period of at least ten years during which the reasonable belief as to ownership is required. In practice, this means that an applicant under Schedule 6, where the third condition is in issue, will have to show more than ten years adverse possession ending with the date of the application so as to establish a period of at least ten years within that period during which they (or a predecessor) held the belief. 

24.                        In the present case I accept that Mr. McLeod believed that he owned the Disputed Land, as it was part of the land that it had been agreed he would retain. The only reason he might not believe this would be because the Transfer plan showed the boundary in a different position. Mr. Brown contended that it made no sense for Mr. McLeod -- who was a meticulous record keeper – to have remained silent about the mistake for twenty years or so. In my view, this is correct, but there is a perfectly good explanation: Mr. McLeod was silent because he was unaware that the Transfer plan was mistaken until this was raised by Mr. Coward’s son in 2012. I am satisfied that if Mr. McLeod had realised that the plan was mistaken, he would have said something in 1993. Neither he nor anyone else realised the error at that time. Therefore, Mr. McLeod believed that he owned the land from the date of the Transfer up to some point in 2012, a period well in excess of ten years, during the whole of which he was in adverse possession.

25.                        As to whether that belief was reasonable, I consider that the proper standard to apply is not that of a lawyer or surveyor, but a lay person. Again, the agreement reached and the terms of the Transfer all provided grounds for Mr. McLeod’s belief. The only thing that suggested otherwise was the Transfer plan, but without specialist knowledge, it is perfectly understandable that Mr. McLeod did not realise it was mistaken. Nor did anyone else involved in the transaction, and it was only spotted when a surveyor -- Mr. Coward’s son – looked into matters some years later. Accordingly, I consider that Mr. McLeod’s belief was reasonable.

Conclusion

26.                        In the light of the above findings, Mr. McLeod has satisfied the relevant statutory provisions, and therefore I must direct the Chief Land Registrar to give effect to his application as if Mr. Brown’s objection had not been made.

Costs

27.                        At present, I can see no reason why I should not order that Mr. Brown pay Mr. McLeod’s costs, as Mr. McLeod has been the successful party.  Although Mr. McLeod acted by solicitors in making the application to the Land Registry, so far as I can tell, he has not incurred any legal costs since the date of the reference to the Land Registration Division: 1^st October 2013, and has acted as a litigant in person throughout. On that footing, he would be entitled to recover  sums in respect of any work done, and any expenses and losses incurred in respect of these proceedings since that date, see: s. 1(1) of the  Litigants in Person (Costs and Expenses) Act 1975. Accordingly, I direct that by 5.00 pm on 3^rd October Mr. McLeod send to the Land Registration Division at 12 Alfred Place written (preferably typed) details of the time he has spent on the proceedings since 3^rd October 2013 and any expenses he has incurred, such as the cost of the newspaper advertisement that he was directed to make for service on Mrs. Jones. Given that Mr. McLeod retired some time ago, it is unlikely that he has incurred any losses in working on the proceedings. If I should be mistaken, and he has incurred solicitors’ costs since that date, they should be included together with copies of the bill(s) from the solicitors. Mr. McLeod should also send copies of such details and any additional documents on which he relies to Mr. Brown at 589 Wells Road by 3^rd October.

28.                        Mr. Brown will then have the opportunity to provide written submissions in response, presenting any reasons he wishes to rely on as to why he should not pay Mr. McLeod’s costs, and any issues he has with the details provided by Mr. McLeod. He should send such submissions to the Land Registration Division at 10 Alfred Place by 5.00 pm on 17^th October and also a copy to Mr. McLeod at 7 Allanmead Road, Bristol BS14 9AS by the same date. I will then deal with a final determination on the issue of costs and the amount to be paid should I remain of the view that Mr. Brown should make payment.

 

 

 

Dated this Thursday 25 of September 2014

 

 

 

 

 

By Order Of The Tribunal