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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Sexton (2) Sally Ann Sexton (3) Margaret Muir Kember v (1) Dennis Arthur Gill (2) Jean Lucy Gill (Miscellaneous cases : Miscellaneous) [2015] EWLandRA 2013_0472_0473 (23 November 2015)
URL: http://www.bailii.org/ew/cases/EWLandRA/2015/2013_0472_0473.html
Cite as: [2015] EWLandRA 2013_472_473, [2015] EWLandRA 2013_0472_0473
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REF/2013/0472/0473
PROPERTY CHAMBER LAND REGISTRATION
FIRST-TIER TRIBUNAL
LAND REGISTRATION ACT 2002
IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
BETWEEN
(1) ANDREW SEXTON AND SALLY ANN SEXTON
(2) MARGARET MUIR KEMBER
APPLICANTS
and
(1) DENNIS ARTHUR GILL
(2) JEAN LUCY GILL
RESPONDENTS
Property Address: Land adjoining 95 and 97 Highfields Road, Highfields
Caldecote, Cambridge CB23 7NX
Title Numbers: CB366874 and CB366876
Judge
__________________________________________________________________________________
D E C I S I O N
__________________________________________________________________________________
INTRODUCTION
1. This Decision arises out of arises out of a series of applications by the Applicants to be registered as proprietors of part of Title number CB353314 (“the Applications”), first registered in the Respondents’ names with a Possessory Title on 19th April 2010. The land in this title with which these references are concerned is a narrow strip of land (“the Strip”) some six feet in width that runs between Nos. 95 and 97 Highfields Road, originally forming a means of access from Highfields Road to the east and West Drive to the west. These two roads run more or less in parallel, approximately in a north-south alignment, and the Strip runs approximately east to west. In fact, the Strip runs more like south-east to north-west, and the two parallel roads lie along a south-west to north-east alignment. The First-named Applicants (“the Sextons”) are the registered proprietors of 95 Highfields Road under Title number CB172040. The second-named Applicant (“Mrs Kember”) is the registered proprietor of 97 Highfields Road under Title number CB293843. 95 Highfields Road lies immediately to the south of the Strip, and 97 Highfields Road immediately to the north.
2. On 6th October 2011 both sets of Applicants applied to the Land Registry in Form ADV1 to be registered with title to different parts of the Strip. The land claimed by the Sextons was given provisional title number CB375396, and that claimed by Mrs Kember CB375421. The Respondents objected to both applications. The disputes were referred to the Adjudicator to HM Land Registry on 9th July 2012. Due to a failure by the Applicants to comply with an “unless” order, on 12th October 2012 the Adjudicator ordered the Chief Land Registrar to cancel the original applications. On 28th December 2012 the Sextons made a further application in Form ADV1 (under Schedule 6), and on 3rd January 2013 Mrs Kember applied (under the transitional provisions) in Form AP1, subsequently converted to FR1. Again, the Respondents objected. The disputes were referred to the Adjudicator (as the Tribunal was then known) on 6th June 2013. Shortly after the references were made, the Respondents applied to strike out the Applicants’ cases on the basis of alleged abuse of process. This contention derived from the fact that the previous references had been struck out for non-compliance with the Tribunal’s orders. In the event, the application failed. Part of the reason for the refusal to strike out the Applicants was the fact that there were existing injunction proceedings between the same parties in the Cambridge County Court (“the County Court Claim”) relating to the Strip, and the County Court had stayed these proceedings pending resolution of the references before the Tribunal. Statements of Case were then served pursuant to the Tribunal’s order, and a further interlocutory issue arose. The Respondents took the point that the Applicants, as Defendants to the County Court Claim, were precluded by paragraph 1(3)(a) of Schedule 6 to the Land Registration Act 2002 (“the 2002 Act”) from making an application for adverse possession in relation to the Strip. This application succeeded to a certain extent. The Tribunal directed by order dated 20th December 2013 that the Sextons’ application should be treated as an application to close the Respondents’ title to the Strip, but not as an application to be registered themselves. Because Mrs Kember’s application was made under the transitional provisions, and not Schedule 6, she was not affected by this. Her application to be registered with title to part of the Strip continued, coupled with an application to close the Respondents’ title.
3. The Applicants did not claim to have been in adverse possession of the entirety of the Strip. However, they contended that they were in possession of a large part of the Strip at the time of the Respondents’ first registration, in April 2010, and accordingly the Respondents were not entitled to be registered with possessory title. They relied on section 9(5) of the 2002 Act which provides that the registrar may grant a possessory title to a person where the registrar is of the opinion that “…the person is in actual possession of the land, or in receipt of the rents and profits of the land, by virtue of the estate…” It was their case that the Respondents were neither in possession of the land at the material time, nor in receipt of the rents and profits, and accordingly they should not have been registered and the register should be altered in order to correct a mistake. The Applicants claimed to have been in possession at the date of registration, at least as to part of the Strip. For their part, the Respondents denied that the registration was made in error. They contended primarily that they had a paper title to the Strip and should therefore have been registered with an absolute or at least qualified title. They contended in the alternative that at the date of registration they were in receipt of the rents and profits of the Strip by virtue of a wayleave agreement, and thus entitled to a possessory title. It was not part of their case that they were at that time or ever had been in exclusive physical possession of the Strip. As a final long-stop, they argued that even if their initial registration was a mistake, the register should not be altered in view of exceptional circumstances present in this case within the meaning of paragraph 6(3) of Schedule 4 to the 2002 Act.
THE HEARING AND DECISION
4. I heard this case over two days at Cambridge County Court, and had the benefit of a site view in the presence of the parties or their representatives. The Applicants were represented by Mr Alisdair Wilson of Counsel, and the Respondents by Mr Andrew Gore, also of Counsel. On the Applicants’ side, I heard evidence from Mr Sexton, Mrs Kember, and Mrs Street, the owner of 45 West Drive. For the Respondents, evidence was given by Mrs Gill, her daughter Melanie King, her son-in-law Anthony Paul Langford, Jean Stevens and Carol Rawles. Witness statements of Richard and William Langford were also relied upon. All of this evidence related primarily to the issue of possession of the Strip. I gave a reasoned written Decision on 1st July 2014 (“the Decision”), which sets out in full the evidence which I heard, the parties’ arguments and my findings and conclusions. In summary, I reached the following conclusions:
(a) The Respondents had not been in possession of the Strip at the date of their application for first registration, contrary to the certificate given in the original FR1. They were neither in physical possession nor “constructively” in possession through the receipt of rents or profits. Indeed, the Respondents had never been in exclusive factual possession of the Strip.
(b) They could not demonstrate a paper title to the Strip.
(c) Consequently, their registration with a possessory title to the Strip was a mistake, and there was no other class of title with which they could be registered.
(d) By contrast, the Applicants had entered into adverse possession of defined and separate parts of the Strip in 1999, and remained in adverse possession until April 2013 when the Respondents evicted them. They were therefore in adverse possession at the date on which the Respondents had applied for first registration.
THE ORDER
5. In the light of the conclusions that I had reached, I made an order in the following terms:
1. The Chief Land Registrar shall give effect to the Applicants’ applications dated 28th December 2012 (“the Applications”) to the extent of removing from the Respondents’ title number CB353314 the strip of land edged red and lying on the east side of West Drive and on the west side of Highfields Road (“the Strip”).
2. Further consideration of the Applications to the extent that they relate to the registration of the Applicants as proprietors of all or part of the Strip is stayed until 1st October 2014.
3. The Applicants may apply to the Tribunal on notice to the Respondents to restore the matter for further consideration.
4. In the event that no such application is made to the Tribunal on or before 1st October 2014 the Tribunal will direct the Chief Land Registrar to cancel the Applications.
5. Further consideration of these references is reserved to Judge Owen Rhys.
The reasons for the form of Order – and, in particular, the stay in relation to the Applicants’ application to be registered with a possessory title to the Strip – were explained at some length in paragraphs 62 to 64 of the Decision, as follows:
“62. These findings do not inevitably lead to [the Applicants’] registration with possessory title. There are problems with these claims, in that the Applicants are barred from making an application under Schedule 6 of the 2002 Act by reason of paragraph 1(3)(a), so they could not obtain a title as matters now stand. However, as a result of my Decision, it has been determined that (a) the Respondents do not have a good title to the Strip and (b) they have never been in possession of the Strip. As a result, I shall direct the Chief Land Registrar to close the possessory title as regards the Strip. Once the title is closed, it would seem to follow that the Respondents’ trespass action should be struck out. At that point, the Applicants would no longer be barred under paragraph 1(3)(c), and they could make a new application. However, given that they have been out of possession since March 2013, it may not be open to them to do so, since they would probably not qualify under either of paragraph 1(1) or paragraph 1(2)(a) of Schedule 6. On that basis, their only possibility of being able to obtain a possessory title would be by reference to the current applications. Until the County Court claim has been struck out, however, those applications cannot be pursued. Once the proceedings are struck out, there would no bar to those applications proceeding. At that point, it might be possible to award a possessory title to the Applicants.
63. There is a further issue, namely the extent to which the Applicants would be obliged to satisfy the requirements of paragraph 5 of Schedule 6, in the event that they were able to pursue the current applications. The Respondents were only entitled to receive notice of the Applicants’ applications because they were the registered proprietors of the Strip. As such, they were in a position to serve a NAP counter-notice, invoking the requirements of paragraph 5. Once the Strip is removed from their possessory title, they have no status in relation to the Strip. If a new application were made, they would not receive notice of it. In the circumstances, it might be regarded as anomalous that the Applicants are obliged to satisfy the conditions, merely because the Respondents were wrongly registered as proprietors as at the date of application. The position of the true paper owner of the Strip would not be prejudiced, because registration with possessory title does not prejudice the interest of such a person – see section 11(7) of the 2002 Act. Alternatively, even if the NAP still applies, this might be a case where the second condition of paragraph 5 applies.
THE PROPOSED ORDER
64. At all events, given the complexity of the situation, and the technical difficulties that I have referred to, I shall give effect to the Applicants’ applications dated 28th December 2012, but only to the extent of closing the Respondents’ title as regards the Strip, by directing the Chief Land Registrar to remove the Strip from the Respondents’ title number CB353314. I shall stay these proceedings as regards the residue of the application, and give permission to apply to the Tribunal as regards the matters outstanding. The Applicants can then decide whether they wish to pursue the existing applications, having disposed of the County Court proceedings, or to make some other application. If the matter does come back to the Tribunal, I shall reserve the reference to myself, and at that point consideration may be given to whether the Respondents should be heard, and on what issues. For the purposes of this Decision, I shall therefore direct the Chief Land Registrar to give effect to the Applicants’ applications dated 28th December 2012, by removing the Strip from Title number CB353314. On the face of it, I do not see why costs should not follow the event, the essential dispute being whether or not the Respondents’ possessory title should be closed. I am minded to make an order that the Respondents should pay the Applicants’ costs, to be subject to a detailed assessment on the standard basis if not agreed. However, I will allow the Respondents the opportunity of making submissions on costs, to be filed and served no later than Wednesday 9th July 2014. The Applicants may respond within 7 days. I shall then consider the issue further.”
EVENTS SINCE THE DATE OF THE ORDER
6. On 15th July 2014, the Land Registry implemented the Order in the sense that the land defined as the Strip was removed from the Respondents’ possessory title CB353314. Currently, therefore, no-one has a registered title to the Strip. However, the remainder of the Applications remain in abeyance as far as Land Registry is concerned, in accordance with the express terms of the Order. The Respondents applied for permission to appeal the Decision and Order. Permission was initially refused on paper and at an oral hearing Judge Cousins sitting in the Upper Tribunal dismissed the application by order dated 10th June 2015. On 26th June 2015 the Applicants applied to Cambridge County Court to dismiss the County Court Claim. The position initially adopted by the Respondents in their solicitors’ letter to the Applicants dated 3rd July 2015, was that “your application is bound to fail and will be opposed.” The basis of this stance was said to be the doctrine of relativity of title. In particular: “However, it is not necessary in order to be successful in a claim based on allegations of trespass, that the claimant should have a registered title or indeed any type of indefeasible title. On the contrary, all that is required of a claimant is that s/he was in possession prior to the defendant in order to demonstrate title against the defendant (see for example Asher v Whitlock (1865) L.R.1 QB 1) in other words a claimant need only prove that he has a better relative title than the defendant……In the circumstances, please confirm that you will withdraw the misguided application to strike out our clients’ Particulars of Claim. If we do not hear from you to this effect then we will attend the hearing and oppose the application. In the event our clients are successful in that opposition, we will be seeking an order for costs..” However, on 17th July 2015 District Judge Capon made an order dismissing the County Court Claim. This order was made by consent notwithstanding the contents of the letter referred to above. The disposal of the County Court Claim disposed also of the objection based on para.1(3)(a) of Schedule 6 to the 2002 Act. Accordingly, by application dated 13th August 2015 (“the Further Application”) the Applicants applied to the Tribunal to lift the stay imposed by the Order, and for a further order to be made giving effect to the Applications by registering them with possessory title of defined parts of the Strip. The Further Application was supported by detailed written legal submissions, and a copy was served on the Respondents. The Applicants proposed that the issues should be resolved without a further oral hearing.
7. On 2nd September 2015 the Tribunal wrote to the Respondents’ solicitors, referring to the Further Application, and noting that a copy had been supplied to them. The letter concluded as follows: “If the Respondents wish to make any written submissions for consideration by the Tribunal, both as regards the suggested procedure and the substantive issues, they should lodge them with the Tribunal no later than 4 pm on Friday 18th September 2015, serving a copy on the Applicants. The Applicants may (if so advised) provide a written response seven days thereafter. The Judge will then consider the matter further.” In the event, the Respondents have not lodged any such submissions or otherwise chosen to participate in this process. In view of that fact, I must first consider whether I am able to deal with the Further Application without directing a hearing. Having regard to the terms of Rule 31(1) to (3) of the Tribunal Procedure (First tier Tribunal)(Property Chamber) Rules 2003, I consider that I can deal with this matter without a hearing, and I propose to do so. All necessary findings of fact have already been made, and a hearing will only add to the already considerable costs that have already been incurred.
8. The Applicants’ applications for possessory title, dating from December 2012, remain unresolved. When those applications were made, the Applicants were (as I have found) in adverse possession of the Strip, which formed part of Title CB353314. This was a possessory title, the Respondents having obtained first registration on the basis of a declaration of possession which was false. At the date of the Applications the County Court Claim was still on foot. At the present time (a) the Applicants are no longer in possession, (b) the Respondents’ possessory title to the Strip has been closed and (c) the County Court Claim has been struck out. What, if any, difference does this make to the way in which the Application should be dealt with?
THE APPLICANTS’ ARGUMENTS
9. The Applicants’ primary submission is as follows. They argue that because the registered title has been closed, the Tribunal should treat the Applications as applications for first registration of unregistered land. The Applicants would therefore have to establish that they had been in adverse possession for more than 12 years prior to the date of the application, to satisfy the provisions of the Limitation Act 1980. I have found that the Applicants were in adverse possession of the Strip between 1999 and April 2013 – a period exceeding 12 years. They argue that the closure of the title should be “retrospective” – that is, it is to be assumed that the possessory title never existed. On this basis, the title should be treated as being unregistered throughout the period of adverse possession, and the Applicants are therefore entitled to be registered. They cite the decision in Gold Harp Properties v MacLeod [2014] EWCA Civ 1084 as supporting the general proposition that rectification of the register can, where appropriate, have retrospective effect.
10. Alternatively, even if the closure of the title does not have retrospective effect, the Applicants are still entitled to be registered. There is no requirement under section 9(5) of the 2002 Act for a squatter to have remained in occupation for a period of 12 years prior to the application – merely that, at the date of the application, the squatter was “…the person is in actual possession of the land, or in receipt of the rents and profits of the land, by virtue of the estate…”. They cite Jourdan & Radley Gardner: Adverse Possession (2nd ed.) 21.30-37 in support. On the basis of the facts previously found, the Applicants argue that they qualify for a possessory title.
11. If the Applications are bound to be dealt with under Schedule 6, they submit that the requirements of para.5 of Schedule 6 should be ignored. The conditions were invoked by the service of a counter-notice in form NAP by the Respondents, at a time when the Respondents were the registered proprietors. They have of course ceased to be proprietors, since the title has been closed with regard to the Strip. The Applicants say that it would be anomalous if the para.5 conditions remain operative in these circumstances. Finally, if the para. 5 conditions have to be satisfied, they argue that they can meet the second condition, namely that “the applicant is for some other reason entitled to be registered as proprietor…” They allege that the reasons advanced in favour of registration on the “unregistered” basis provide such reasons.
THE ISSUES
12. Undoubtedly, the present situation is an unusual one and unlikely to be repeated very often. The current position is capable of two different analyses. First, it is a fact that the Strip is no longer part of a registered title. If a fresh application were to be made today for first registration, it would not be made under Schedule 6 in form ADV1, but by way of form FR1. If an applicant were able to show 12 years’ adverse possession, and that he or she remained in possession at the date of the application, a possessory title would be granted in accordance with section 9(5) of the 2002 Act. Such a title is, of course, without prejudice to the rights (if any) of a paper title owner. There are, however, two potential issues. First, the Applicants in this case were in adverse possession of the Strip for 13 years, but that possession ceased in 2013. They would therefore be unable to satisfy the requirement of continuing possession. Further, the effect of section 96(1) must be considered. This provides that “No period of limitation under section 15 of the Limitation Act 1980 (c. 58) (time limits in relation to recovery of land) shall run against any person in relation to an estate in land or rentcharge the title to which is registered.” A possible argument arises that once an estate in land has been registered, the provisions of the Limitation Act 1980 cease to apply altogether. If that is right, the Applicants’ adverse possession of the Strip after April 2010 would be disregarded for the purposes of calculating their period of possession. This issue is discussed in Jourdan & Radley Gardner on Adverse Possession (2nd ed.) at 21-38 and 21-39 and in a number of decisions in this Tribunal – for example Moore v Buxton (22 April 2009).
13. However, at the date when the Applications were made, because the Strip was comprised within a registered title it was necessary to apply under Schedule 6 of the 2002 Act. Although Mrs Kember did make an application in form FR1 under the transitional provisions, I have held that her period of adverse possession commenced in 1999 and it is therefore clear that she cannot have barred the title of the paper owner prior to 13th October 2003. Even though the Strip is now unregistered, they were qualified to apply to be registered in January 2013 subject only to the para. 1(3)(a) issue (now disposed of). Both sets of Applicant were, as I have found, in adverse possession at the date of the Applications and had been in adverse possession for more than 10 years at that date. If the Applications continue to be dealt with under Schedule 6 there arises the further issue, namely the extent to which the Applicants would be obliged to satisfy the requirements of paragraph 5 of Schedule 6. The Respondents were only entitled to receive notice of the Applicants’ applications because they were at that time the registered proprietors of the Strip. As such, they were in a position to serve a NAP counter-notice, invoking the requirements of paragraph 5. Once the Strip is removed from their possessory title, they have no status in relation to the Strip. If a new application were made, they would not receive notice of it. In the circumstances, it might be regarded as anomalous that the Applicants are obliged to satisfy the conditions, merely because the Respondents were wrongly registered as proprietors as at the date of application. The position of the true paper owner of the Strip would not be prejudiced, because registration with possessory title does not prejudice the interest of such a person – see section 11(7) of the 2002 Act. Alternatively, even if the NAP still applies, this might be a case where the second condition of paragraph 5 applies, as the Applicants argue in their submissions.
THE UNDERLYING PRINCIPLES
14. Before attempting to resolve these potentially conflicting analyses, it might be fruitful to return to first principles. The law of adverse possession is a branch of the law of limitation. Although the statutory scheme in relation to registered titles is now governed by Schedule 6 of the 2002 Act, rather than the Limitation Act 1980, the underlying rationale is exactly the same. Although the English law of adverse possession was attacked as a breach of Article 1 of the European Convention on Human Rights in Pye v United Kingdom [2007] ECHR 700, the Court held that it was a proportionate doctrine seeking to achieve a legitimate social and legal purpose. In considering the purpose of the law of limitation, the Court cited this passage from the earlier case of Stubbings v United Kingdom [1996] ECHR 44:. “It is noteworthy that limitation periods in personal injury cases are a common feature of the domestic legal systems of the Contracting States. They serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time.” (Stubbings and Others v. the United Kingdom, mentioned above, § 51). In relation to land, the Court noted additional reasons for supporting the principle, not least the desirability of ensuring that title to land is rendered more certain, by seeking to harmonise ownership and possession.
15. In the present case, the Applicants were in largely undisturbed exclusive possession of parts of the Strip for over 13 years. In Mrs Kember’s case, she had been using parts of the Strip for a long time prior to that time, albeit without taking “exclusive factual possession”. For many years prior to the Applicants’ entry into possession, the Strip had been disused and overgrown. The relevant findings of fact were as follows: “44.1 Clearly, in days gone by the Strip was used as a pedestrian cut through between West Drive and Highfields Road. Although Mrs Rawles said that she used to ride her moped along it, and recalled Mr Gill using a motorbike, no other witnesses mentioned vehicles and I think she is mistaken in her recollection. The physical limitations of the Strip, the fact that witnesses recall it being seriously overgrown at times, and the presence of dustbins and other items in the area between the two houses (Nos. 95 and 97) make it most unlikely that it would even be possible to ride such vehicles on the Strip. During the period that the Strip was used for an access it could not be said that anyone had exclusive factual possession of it. 44.2 However, the use of the Strip as a cut-through diminished over the years. West Drive was adopted as a highway and made up to highway standards some time in the 1980s, and prior to that time it was rough and unsurfaced. As Mrs Stevens put it, “it would have made sense for the houses on West Drive to have short cuts through to Highfields Road so as to avoid the need for a long walk around what was originally in part at least a relatively rough road which was not adopted and not made up to normal highway standards.” Although the Respondents’ witnesses sought to give the impression that the Strip was an important and necessary means of access, the fact that the owners of 45 West Drive, who had an express right of way over it, do not appear to have used it at all, suggests that it became largely redundant as an access from the time that West Drive was adopted and made up as a road.” The only dwellings that had a direct access to the Strip were Nos.97 and 95 Highfields Road, belonging to the Applicants, and 45 West Drive, whose current owner Mrs Street confirmed that it was never used by previous owners of No.45 for any purpose.
16. The Respondents have never had occasion to use the Strip, which can confer no practical benefit upon them as owners of 42 West Drive, but have vigorously asserted that they are the paper title owners of it. It was that erroneous belief which underpinned their original application to be registered, at a time when they were well aware that the Applicants were in possession. Indeed, the very purpose behind their registration was to allow them to bring proceedings against the Applicants. Mrs Gill gave evidence as to the advice received from her solicitors as follows: “dealing to the trespass to the Strip would be more straightforward if the land was registered at the Land Registry. I therefore instructed them to carry out a voluntary first registration of Bonair, the adjoining land and the Strip. I did not want to raise the issues of trespass formally with Mrs Kember and Mr and Mrs Sexton until this had been done…….. Having completed the registration of Bonair and the Strip Jeffery Mills wrote to the applicants in July 2009 requiring the obstructions to be removed. Despite those letters they were not removed. Jeffrey Mills wrote to them again in September 2010 re-stating the requirement to remove the obstructions but again nothing was done….” The Land Registry rejected the claim that they had a paper title to the Strip, but were prepared to register a possessory title on the basis of the FR1 application form completed by the Respondents. Panel 12 of the FR1 requires the applicant to give information regarding possession of the subject land. Section 12 of the FR1 contains a certificate to be completed by the applicant, giving details of “rights, interests and claims affecting the estate….. known to the applicant…”. The applicant must place an “x” in the appropriate box. The Land Registry Practice Guide explains the significance - "If squatters occupy any part of the property details must be given here, unless squatters interests have been disclosed on form DI under r.28(1) LRR 2003. We will not complete registration until the claims of squatters have been investigated.” The box which was ticked by or on behalf of the Respondents was in this form: “The applicant knows of no other such rights, interests and claims. Only the applicant is in actual possession of the property, or in receipt of the rents and profits from the property.” The other available box, not ticked by the Respondents, reads as follows: “The applicant knows only of the following additional such rights, interests and claims, including those of any person (other than the applicant) in actual possession of the property…” Accordingly, the Respondents only succeeded in being registered as proprietors of the Strip on the basis of a deliberate decision not to disclose to the Land Registry the adverse possession of the Applicants, in order to strengthen their hand in recovering possession from them. If the Respondents had been truthful, Land Registry practice was “… not [to] complete registration until the claims of squatters have been investigated.” It is inconceivable that the Respondents would have been registered with a possessory title if the true facts had been known by the Land Registry.
17. The present situation is, therefore, entirely a product of the Respondents’ decision to mislead the Land Registry. If the title to the Strip had not been registered in April 2010, as the result of the induced error, the Applicants would unquestionably have enjoyed 12 years’ adverse possession prior to their eviction in 2013. The paper owner’s title would have been barred and under section 17 of the Limitation Act 1980 the Applicants would have obtained an indefeasible title. It would be undesirable, in my view, and contrary to justice, if the purposes of the law relating to adverse possession were to be frustrated by the effect of this deliberately wrongful act. Having said that, of course the Applications must be dealt with in accordance with the law.
THE INSTANT APPLICATIONS
18. Against that background, I shall now turn to the two possible ways of treating the applications – as one relating to unregistered land, or registered land. Although of course the Applications were made the Sextons’ case in ADV1 alone, I do not see that this should preclude the Tribunal from treating it as having been made in the form appropriate to an unregistered title. For the reasons I have explained, the Applicants had enjoyed more than 12 years’ adverse possession by the date of their respective applications. Of that period, however, more than two years were enjoyed whilst the Strip was (unknown to them) registered with a possessory title. Whether or not that period may be taken into account depends upon the meaning of section 96(1) of the 2002 Act, namely: “No period of limitation under section 15 of the Limitation Act 1980 (c. 58) (time limits in relation to recovery of land) shall run against any person in relation to an estate in land or rentcharge the title to which is registered.” This is a somewhat opaque formulation, which has never, as far as I am aware, received judicial consideration outside this Tribunal. Section 15(1) of the Limitation Act 1980 provides that: “No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” In the circumstances of this case, the position appears to be as follows. Three separate titles coexisted at the date of first registration. First, the Respondents were neither the paper title owners, nor were they in possession of the Strip. Their title was conferred solely through the fact of registration and the effect of section 58(1) of the 2002 Act. This title, as section 11(7) of the 2002 Act makes clear, does not take priority over the paper title. Secondly, the Applicants had a distinct legal title based on their physical possession of the land in accordance with the decision in Asher v Whitlock (1865) LR 1 QB 1. Such a title is good against the whole world other than the paper title owner. It is this title which matures into a possessory title upon registration – see para. 9(1) of Schedule 6 to the 2002 Act. Thirdly, the (unknown) paper title owner had the fee simple absolute, which would have entitled him to bring an action to recover the Strip from the Applicants, and, once the Respondents had become registered, from them also. Notwithstanding the Respondents’ registration, the Applicants remained in adverse possession of the land, with the same quality of title – i.e a title based on possession. Although the procedure for claiming a title changed under the 2002 Act, the underlying legal basis remained the same, as para.9 (1) demonstrates.
19. It seems to me that the effect of registration was as follows. As far as the Respondents were concerned, they had obtained a freehold possessory title, albeit that they were not in possession. From that moment on, time did not run against them under the Limitation Act 1980. A squatter, alleging adverse possession, would be obliged to advance the claim against the Respondents under Schedule 6. That is indeed what the Applicants did. However, for as long as the Applicants remained in possession, they were also adversely possessing the land against the unregistered paper title owner. His or her estate was not registered, but is protected by the fact that the possessory title is subject to any “estate, right or interest adverse to, or in derogation of, the proprietor’s title subsisting at the time of registration or then capable of arising.” – see section 11(7) of the 2002 Act. If such an “estate …. adverse to, or in derogation of, the proprietor’s title” remains enforceable even though its proprietor is not registered, it must follow that the estate exists outside the scheme of registration. On this basis, whilst the Limitation Act 1980 ceased to apply to the Applicants’ adverse possession as against the registered proprietors – the Respondents – it had not ceased to apply to their adverse possession as against the unregistered paper title owner. On this analysis, it can be seen that the registration and subsequent “de-registration” of the Respondents does not affect in any way the Applicants’ ability to bar the title of the paper title owner under the Limitation Act 1980. This being so, there is no reason in my view why the Applicants should not be entitled to be registered with a possessory title. In reaching this conclusion, I have revisited some earlier decisions of this Tribunal but am comforted to find myself agreeing with the learned editors of Jourdan & Radley-Gardner at 23-39. I would stress, however, that the present factual situation is not likely to be repeated very often.
20. If this analysis is incorrect – and I must therefore treat this as an application under Schedule 6 relating to registered land – my conclusion is the same. Since the County Court Claim has now been struck out, I need not concern myself with para. 1(3)(a) of Schedule 6. Under para.1, 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. I have found that the Applicants had been in adverse possession of the Strip for more than 10 years as at the date of the application. They therefore qualified at that date, which is the material date for the purposes of the Applications. It may be that, for the reasons that I have given, the NAP counter-notice served by the Respondents should be ignored, and the Applications dealt without reference to para.5 of Schedule 6. That is no doubt an interesting point which gives rise to some difficulty on the facts of this case. However, I do not think that I need to resolve it. I shall assume for the purposes of this Decision that the Applicants are bound to satisfy one or more of the para. 5 conditions. Clearly, they cannot satisfy the first or third conditions, and do not claim to do so. However, in my judgment they are able to satisfy the second condition, namely that “the applicant is for some other reason entitled to be registered as the proprietor of the estate.” I am not aware of any judicial authority as to the meaning of the words “…some other reason…” – words which could hardly be plainer or more unlimited in their scope. The condition must be designed to provide the registrar, or the court, with a residual discretion to allow registration with possessory title even in circumstances where the squatter is unable to satisfy the other, more specific, conditions of para.5. In my judgment, the Applicants are entitled to take advantage of this condition. The following factors are compelling:
(a) The Applicants were never given an opportunity of asserting their interest in the land at the date of first registration due to the deliberate decision of the Respondent to mislead the Land Registry;
(b) Had the Applicants been given the opportunity of asserting their interest, the Land Registry would not in my view have registered the Respondents with a title, since they were neither in possession nor the paper title owners;
(c) In any event, the Applicants remained in adverse possession of the Strip notwithstanding the fact of registration;
(d) Prior to the issue of possession proceedings in 2013 the Applicants had acquired a title under section 17 of the Limitation Act 1980;
(e) It would be in accordance with the underlying principles of the law of adverse possession to register the Applicants as proprietors.
21. Accordingly, if the land is to be treated as registered land, because it was registered as at the date of the initial Schedule 6 application, I consider that the Chief Land Registrar should give effect to the Applications. Of course, if the para.5 conditions are not engaged, it follows that the Applicants should also be registered. On any footing, however, whether the Applications are treated as made in relation to an unregistered or a registered title, the Applicants are now entitled to be registered with a possessory title. I therefore lift the stay which was imposed in July 2014, and direct the Chief Land Registrar to give effect to the Applications. As I understand it, the Sextons’ application relates to the land provisionally registered under title number CB375396, and Mrs Kember’s application relates to the land provisionally registered under CB375421. These are identical to the areas identified on the plans attached to the Further Application as Exhibit 1 and Exhibit 2 respectively. As will have been apparent from the reasoning that I have explained, my decision does not depend in any way on treating the closure of the Respondents’ title as having retrospective effect, as the Applicants have argued.
Dated this 23rd day of November 2015
BY ORDER OF THE TRIBUNAL