PROPERTY CHAMBER

FIRST–TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

REF NO:2014/0193

 

BETWEEN

Morningside Residents Association Limited

Applicant

and

 

Mr Barry John Martin

Respondent

 

 

Property address: Land at Morningside, Barrington Road, Torquay TQ1 2QJ

 

Title number: DN304847

 

Before: Judge John Hewitt

Sitting at: Exeter Magistrates Court

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

 

KEYWORDS Adverse possession – paragraph 6 of Schedule 6 – nature and extent of overt acts relied on – acts by a body of lessees – implied consent for negotiations - period of adverse possession required to support the application

 

Cases referred to

 

Neilson v Poole [1969] P & CR 909

Tecbuild Limited v Chamberlain [1969] 20 P & CR 633

Powell v MacFarlane [1979] 38 P&CR 452

Colin Dawson Windows Limited v Kings Lynn, West Norfolk Borough Council [2005] EWCA Civ 9

Dickenson v Longhurst Homes Ref: 2007/1276

Ofulue and anor v Bossert [2009] UKHL 16

Baxter v Mannion [2011] EWCA Civ 120

Smart v Lambeth LBC [2013] EWCA Civ 1375

 

 

Decision

1. The Decision of the Tribunal is that:

 

1.1 The Chief Land Registrar shall give effect to the original application made on 5 August 2013 under paragraph 6(1) of Schedule 6 to the Land Registration Act 2002 (the Act) to be registered as proprietor of the title as if the respondent’s objections had not been made; and

 

1.2 Any application for costs shall be made in accordance with the directions set out in paragraph 136 below.

 

2. The reasons for the decisions made are set out below.

 

NB later reference to a number in square brackets ([  ]) is a reference to the page number of the trial bundle provided to me for use at the hearing.

 

The application

3. In 2011 the applicant made an application to Land Registry to be registered as proprietor of the subject land by dint of adverse possession. The respondent objected to the application and served Form NAP requesting it be dealt with under paragraph 5 of Schedule 6 to the Act. By letter dated 25 July 2011 [1] Land Registry rejected the application for the reasons therein set out.

 

4. On 5 August 2013 the applicant made a further application to Land Registry in Form ADV1 seeking to be registered as proprietor. The application was made pursuant to paragraph 6(1) of Schedule 6. The application was supported by a statement of truth in form ST1 [3] made by a Mr Michael Wall who is a director of the applicant.

 

5. By letter dated 27 August 2013 [15] Heald Solicitors wrote to Land Registry on behalf of the respondent objecting to the application.

 

6. Land Registry, in its administrative capacity, could not resolve the objection by agreement and on 26 February 2014 the Chief Land Registrar referred the application to the tribunal pursuant to section 73(7) of the Act.

 

7. Directions were duly given and the parties have filed and served statements of case and have given disclosure.

 

The subject property and the site visit

8. In Victorian times a substantial detached house or villa was built on a parcel of land and was probably originally constructed as a rather grand family home. It stood in quite extensive grounds. The house and those grounds became known as Morningside, Barrington Road, Torquay.

 

9. By the early 1970s at least the freehold of Morningside became vested in the Sweeting family and also by that time the house had been converted into a number of self-contained flats, some of which were occupied by members of the Sweeting family and three of which were occupied by statutory tenants.

 

10. The Sweeting family decided to rationalise its investment in Morningside. In 1991 adaptations were carried out to create nine self-contained flats. Evidently these were intended to be, and were, sold off on long leases. A sample of one of the long leases is at [33]. Mr Christian St.John Sweeting and Lawrence St.John Sweeting were defined as the lessor, which expression, by clause 7(1) was to include where the context so permits, their successors in title.

 

11. Part of the garden land at Morningside was considered to have the potential for development. In 1991 two transactions took place with a Mr David Walter Schroeder.

 

Pursuant to a conveyance of part dated 21 May 1991 the Sweetings procured the sale of part of the garden land of Morningside to Mr Schroeder. This garden land was duly registered at Land Registry on 4 October 1991 under title number DN304847. The title plan is at [26]. It will be noted that it comprises a ‘U’ shaped parcel of land plus two very much smaller parcels. One of those, the smaller, has been adapted and landscaped into the garden. The other, the larger, is a concreted area rather like a well which leads down to the basement of the main house, Morningside.

 

For ease of reference I shall adopt the expression used by the applicant’s representatives and refer to the land within title number DN304847 as the ‘adjacent property’.

 

At the time of the conveyance of part in May 1991 the boundary between the retained property, Morningside and the adjacent property was not marked out by any fencing or other physical features and that remains the position today.

 

At about the same time the conveyance of the adjacent property, the Sweeting family procured the grant to Mr Schroeder of a long lease of one of the flats in the main house, Morningside.

 

12. Mr Schroeder transferred the adjacent property to the respondent who, on, 23 December 1993, was registered at Land Registry as the proprietor [25].

 

13. The structure for the sale of the long leases at Morningside was that the Sweeting family acquired a company, Timechime Property Management Limited (Timechime 1). Timechime 1 was a party to the leases and referred to therein as ‘the Management Company’. By clause 5 of the lease [40] the Management Company covenanted to observe and perform the covenants set out in the sixth schedule to the lease [49]. In essence those covenants were to maintain, repair and renew the structure of the building, the entrance drive, paths, gardens and all other parts of the property enjoyed in common with others and the boundary walls and fences of the property. By clause 4(5) the lessor covenanted that in the event the Management Company shall fail to perform any of its obligations on the request in writing of the lessees the lessor would perform such obligations

 

14. The sample lease included the following definition:

 

“ …which said property consists of nine flats known as Flats 1A, 1B, 2, 3, 4, 5, 6, 7, and 8 Morningside aforesaid (hereinafter called ‘the Building’) and the gardens and ground thereof (all of which said premises are hereinafter referred to as ’the Property’) The Property is shown edged purple on the plan lettered ‘A’ annexed hereto”

 

A coloured copy of a lease plan is at [53A]. The adjacent property is not included within the expression ‘the Property’ as defined in the sample lease.

 

14. On the afternoon of Monday 20 April 2015 I had the inestimable benefit of a site visit to Morningside. Present were: Mr Wall and Mrs Lang, directors of the applicant and its solicitor, Mr Paul Taylor and Mr Dodge, the respondent’s counsel.

 

15. I was shown the outside of the main building, the gardens in the immediate vicinity of the curtilage of that building and the adjacent property through and around which we walked, including down a pathway to a pedestrian gate leading on to Ellesmere Road. My attention was drawn to a number of physical features including amongst others a summerhouse, a row of mature trees along the boundary with Ellesmere Road, a planter and laurel hedging, a bin store lawns and flower beds, external lighting and several paved/parking areas. I gained the view that in general terms the series of photographs at [151-154] show a fair reflection of and are illustrative of the gardens and grounds at Morningside.

 

The hearing

16. The hearing took up two full days on 21 and 22 April 2015. The applicant was represented by Mr Matthew Wales of counsel. The respondent was represented by Mr Peter Dodge also of counsel.

 

17. For the applicant oral evidence was given on oath by Mr Michael John Wall [8] and Mrs Frances Charlotte Lang [14] each of whom has a long lease of a flat within Morningside and both of whom are directors of the applicant. Both witnesses were cross examined.

 

18. For the respondent oral evidence was given on oath by Mr Alec Chamberlain [68]. Oral evidence was given by the respondent himself [18 and 69] and by Mr Christian Sweeting [74] via the medium of Skype. Both of them had good cause not to be present in person and Mr Wales did not object to the evidence of those witnesses being given in that manner. Mr Sweeting gave evidence on oath and the respondent affirmed. All three witnesses were cross-examined.

 

19. The respondent had also wished to call a Mr Stephen Robert Vincent [77] to give oral evidence. In the event Mr Vincent decided not to attend in person. On the morning of 22 April 2015 Mr Vincent sent in to the tribunal an email claiming that that planned and unplanned staff absences and pressure of work required him to be in his office in Torquay all day. He said he did not have access to a Skype facility but offered to swear an affidavit to the effect that his written witness statement was true. I indicated to counsel that I did not consider the reason why Mr Vincent was not present to be particularly meritorious and that his absence went to the weight I could give to his evidence. His witness statement was endorsed with a statement of truth and I indicated that I did not consider a sworn affidavit would add anything to the weight I could attach to the evidence. Mr Wales reserved his right to make submissions as to what  (if anything) I could glean from Mr Vincent’s evidence but he did not suggest that greater weight might be attached to it if it was presented in the form of a sworn affidavit. In these circumstances I requested that a message be sent back to Mr Vincent indicating that a sworn affidavit from him would not be required.

 

20. The respondent had also filed and served a witness statement of Mr Gerald Hugh Jones [72]. Mr Jones, an architectural adviser engaged by the respondent, is now retired and lives in West Yorkshire. At one time there was a suggestion he might give evidence via Skype. Both counsel were agreed that the gist Mr Jones’ evidence was at best peripheral and not particularly controversial. Other than on a minor detail Mr Wales did not wish to cross-examine Mr Jones. It was thus agreed he need not be called and that I could take his witness statement, which was endorsed with a statement of truth, as read.

 

Title and the Timechime companies

21. Before moving on it may be helpful to deal with title matters concerning Morningside and companies named Timechime.

 

22. It was not in dispute that the schedule of leases recorded on the freehold title of Morningside [31] shows that on 21 May 1991 long leases of the nine flats were granted and that these were granted by the Sweeting family. On 25 July 1996 a long lease of a basement or lower floor storeroom was granted by Timechime Property Management Limited to Newport Atlantic Limited, a company believed to be controlled by the Sweeting family. I infer the lessor was Timechime 2 (see para 24.2 below) because that was the Timechime company on the register at that time.

 

23. The evidence of Mr Sweeting was to the effect that although the leasehold structure  intended that Timechime was to act as a management company at the same time as the long leases were granted in 1991, the freehold title was conveyed to Timechime 1,  Thus on that day Timechime 1 took on two roles as regards the leasehold structure. First it had become the lessor and secondly it was the management company.

 

24. In the event Timechime 1 remained in the control of the Sweeting family and evidently shares in that company were not issued to the long lessees. Documents of record obtained from Companies Registration Office and provided by Mr Wales (and which were not challenged by Mr Dodge) record that:

 

24.1 A company of the name Timechime Property Management Limited (Company number 02567051) was dissolved on 20 October 1992 (it was assumed that this was Timechime 1 which granted the long leases in 1991);

 

24.2 A company of the name Timechime Property Management Limited (Company number 02918415) with a registered office at 7A Ilsham Road, Torquay TQ1 1JG (Timechime 2) was incorporated on 13 April 1994 and was dissolved on 2 January 1998.

 

24.3 A company of the name Akbah Investments Limited (Company number 03514656) was incorporated on 20 February 1998. On incorporation Mr Stephen Robert Vincent was appointed a director. Mr Christian Sweeting was appointed secretary on 19 February 1999.

 

The last filed annual return and members list were made up to 20 February 1999.

 

On 14 October 1999 the company changed its name to Timechime Property Management Limited (Timechime 3).

 

When the company was dissolved on 5 June 2001 its registered office was at 7A Ilsham Road, Torquay TQ1 2JG.

 

25. The applicant was incorporated on 26 November 2002 with the name Timechime Property Management Limited (Company number 4601569). On 14 March 2003 it changed its name to Morningside Residents Association Limited. It was not in dispute that this company was incorporated at the behest of Mr Wall and the then long lessees of the flats at Morningside and that all of those long lessees are shareholders, eight holding 1,000 shares each and one (the lessee of a particularly large flat) holding 2,000 shares. 

 

26. The evidence of Mr Sweeting was rather vague on the precise detail but he recalled that a company named Timecharm was dissolved at a time when it was in the stewardship of the Sweeting family but he thought at some point it had been restored to the register. The above records produced by Mr Wales do not appear to support that and it is not clear which of the ‘Timechime’ companies Mr Sweeting was referring to.

 

27. I find that in 1996 the freehold was vested in Timechime 2 and at that time Timechime 2 was controlled by the Sweeting family. I am supported in the above finding by the evidence of Mr Sweeting. Although he was not good on detail, he said that in 1996 the family was granted a long lease of a basement storeroom. The lease appears to have been granted on favourable terms; for a term of 999 years at a peppercorn, if demanded, and the lessee is not required to contribute to the service charge regime. It seems to me more likely than not that at the time of the grant the grantor was controlled by the Sweeting family – hence the favourable terms.

 

27. The evidence of Mr Wall was that when the applicant acquired the freehold title it occurred following correspondence with the Treasury Solicitor. It was not in dispute that the applicant acquired the freehold interest in Morningside in November 2004 and that it was registered at Land Registry as proprietor on 15 February 2005 [30]. 

 

28. Mr Wales was prepared to accept for the purposes of these proceedings that at some point the freehold title was vested in the Crown as bona vacantia as a consequence of one of the Timechime companies being dissolved and struck off the register.

 

He also accepted that as at 21 March 2001, the commencement of the ten year period of adverse possession required for the purposes of the claim made by the applicant pursuant to paragraph 1 of Schedule 6 to the Act, the freehold title may have vested in Timechime 3 but certainly as from 5 June 2001 when Timechime 3 was dissolved the freehold vested in the Crown as bona vacantia until the applicant was registered as the proprietor of the freehold in February 2005.

 

29. Insofar as it may be relevant I record that there was no evidence before me that the long lessees ever controlled any of the Timechime companies. I find that the long lessees did not take control of the freehold of Morningside until that interest was acquired by the applicant in November 2004. I find that prior to this date the freehold was either vested in one of the Timechime companies under the control of the Sweeting family or it vested in the Crown as bona vacantia.

 

The gist of the case for the applicant

30. The gist of the case for the applicant is that the long lessees and the residents/tenants of the flats at Morningside have together and collectively cultivated and tended the adjacent property and have incorporated it into the garden land of Morningside so that it has the look and feel of one large garden around the house.

 

31. Mr Wales submitted that it was a well-established presumption that a tenant possesses land on behalf of his landlord; and also that a single possession may be exercised on behalf of several persons jointly. Mr Wales drew attention to:

 

Land Registry Practice Guide 4, paras 2.1 and 11.2;

Dickenson v Longhurst Homes Ref: 2007/1276

Adverse Possession by Jordan and Radley Gardner 2^nd edition paras 7-126 and 20.01 onwards; and

Powell v MacFarlane [1979] 38 P&CR 452

 

32. Mr Wales submitted that the where the long lessees and/or the tenants of the flats have so acted together as a body of persons, they may rely upon and agglomerate the factual possession on behalf of their landlord (of the day) and that the applicant is a successor in title of those landlords for the purposes of paragraph 11 of Schedule 6 to the Act.

 

33. Mr Wales submitted that the evidence will show that the long lessees and tenants of the flats have cultivated and possessed the adjacent land since before 2001 and that such cultivation has included clearing and planting of flower beds, planting shrubs and a rose garden, reseeding and mowing of lawns, repairs and renewal of drive ways and pathways, installation of external lighting, pollarding of trees following the issue of a notice from the local authority, trimming of hedges, bushes and shrubs, regular and general tidying and seasonal work.

 

The evidence called by the applicant

34. First the applicant Mr Michael John Wall. Since 1984 Mr Wall has resided in a flat at 1A, Stanfield, Barrington Road, Torquay, which development abuts Morningside. He said that he had gained some broad knowledge of Morningside over the years. Mr late Mr Peter Sweeting had invited him in to give some advice on steel stanchions required for support in his flat which the main flat on the first floor. Mr Wall said that he was a structural engineer and that he had run a steel business between 1978 and 1992. Also Mr Wall was friendly with a couple who lived in a flat in Morningside and he used to visit them towards the end of the 1990s.

 

35. Mr Wall told me that his impression of the grounds at Morningside during the 1990’s was that they looked ok, the lawns were mowed and tidy, but there were not as many flowers as now. He said the grounds were not overgrown and to the eye the impression was that there was one large reasonably kept garden. Mr Wall said that it was not some time later that he learned the garden was in fact in two separate legal ownerships.

 

36. In cross-examination Mr Wall went through in some detail the more extensive grounds maintenance works carried out from about 2005 onwards and the considerable costs incurred which have been paid for by the long lessees through their service charges.

 

37. Mr Wall said that in 2001 he bought flat 7 for his daughter to live in. He renovated the flat between February and April and his daughter moved in during May 2001. At that time he cut the lawns in the grounds (and on the adjacent property) nearby to flat 7 so that there was an attractive outlook. Subsequently, in 2007, Mr wall sold flat 7 to his son, Matthew.

 

38. Mr Wall also said that he bought two flats in Morningside (numbers 4, and 6) from Bradford Property Trust in about 2005/6.

 

39. Mr Wall was taken to the witness statement of Mr Vincent [77]. Mr Wall said that Mr Vincent’s alleged conversation with Mr Chamberlain had never been mentioned to him, even though Mr Vincent knew that he, Mr Wall, was effectively running the development. Mr Wall said that he had never seen Mr Vincent at Morningside, and that throughout Mr Vincent had sublet his flat. Mr Wall considered it strange that Mr Vincent and Mr Chamberlain both of whom were rare visitors to Morningside should bump into one another. The more so because the front door of Mr Vincent’s flat was outside the main building fronting onto a car park area and in going to/from his flat it would be improbable that he would bump into Mr Chamberlain.

 

40. Mr Wall said that he did not consider Mr Vincent to be a reliable witness. Mr Vincent whilst never a director of the applicant, was however, treasurer of the Morningside Residents Association, between 2002 and 2005. The association provided services and collected service charges. When Mr Vincent sold his flat and stood down as treasurer there was an issue over his non-payment of service charges. He claimed the right to a contra or set off due to some repairs required to his flat arising from a small flat roof above his flat. It took some while to resolve that issue and he and Mr Vincent did not part on the best of terms. Mr Wall asserted that Mr Vincent’s written evidence was a total fabrication and he was certain the alleged conversation with Mr Chamberlain never took place.

 

41. Mr Wall said that it was not until the early 2000s, perhaps 2002/3 that he first learned that part of the garden land was in the respondent’s ownership. In the course of attempting to acquire the freehold of Morningside the solicitors told him there was something odd about freehold title and subsequent enquiries revealed the position of the registered titles.

 

42. Mr Wall said that from his involvement in 2001 the grounds had always been maintained by the long lessees/residents and from what he understood this had been the case for some years prior to that. He was not aware of the landlord/freeholder/management company carrying out any such works and seeking to recover costs through a service charge.

 

43. Mr Wall was asked about the written statement of Mrs MacGregor dated 27 July 2006 [22ba] in which she said that she lived in flat 2 and had enjoyed use of the grounds at Morningside for recreational purposes and“ … confirm that I have enjoyed a right of way on the plan annexed hereto. I have also enjoyed the use of the gardens and grounds hatched green for recreation and from time to time I have carried out gardening and general maintenance of the said grounds. I have enjoyed these rights freely and unencumbered since 1982/3 and still continue to enjoy these rights.” Mr Wall said that Mrs MacGregor was now deceased and prior to her retirement had been a local chemist. He said that he knew her and that she was a reliable lady.

 

44. Mr Wall was asked about the written statement of Miss Ann Baker dated 20 January  2006 [22bc] in which she said that she lived in flat 4 and had enjoyed use of the grounds at Morningside for recreational purposes and“ … confirm that I have enjoyed a right of way on the plan annexed hereto. I have also enjoyed the use of the gardens and grounds hatched green for recreation and from time to time I have carried out gardening and general maintenance of the said grounds. I have enjoyed these rights freely and unencumbered since 1947 and still continue to enjoy these rights.” Mr Wall said that Miss MacGregor was now deceased and prior to her retirement had been a teacher of elocution at a local girls’ school. He said that he knew her and that she was a reliable lady.

 

45. The same location plan was annexed to each of the above statements which shows that the grounds hatched green include the adjacent property. A sample is at [22bb].

 

46. Mr Wall said that the statements of Mrs MacGregor and Miss Baker were prepared at his instigation and that he prepared the location plan annexed to him. He said that at the time they were prepared he was aware that the applicant did not own the adjacent land and these two ladies had knowledge of the grounds and how they had been used over the years and he thought it was sensible to get something in writing from them.

 

47. Mr Wall said that over the years many of the residents had done a bit to keep the grounds in order. In addition to Miss Baker and Mrs MacGregor he said that when flat 8 was owned by a Miss Spittles she also did a bit. His understanding was that those who wanted to be involved were involved and each did their bit. 

 

48. Mr Wall was asked about the current long lessees who are named at [65] and he said that:

Mr Fowey is resident and he has used the adjacent property for recreation to kick a ball about;

Mr Fry is not resident, he lives in Spain;

Mrs Lang is a resident and has carried out extensive work to the grounds including the adjacent property;

Mr Scothern is not a resident, he lives in Falmouth;

Mr & Mrs Pruden are residents and they go out into the gardens and do bits and pieces;

Miss Woods is a resident but he did not know if she had carried out any gardening; and

Mr Matthew Wall, his son, is not a resident, he lives in Australia.

 

49. With regard to the building on the adjacent property, Mr Wall said that is was known as the summerhouse. He accepted that the applicant has not painted it but he said they have changed the locks and replaced the hinges to make it more secure because it has been used for many years to store gardening tools and implements, garden furniture and similar items. The door is kept locked and the residents and the gardener have keys to it.

 

50. Mr Wall was cross-examined closely on the incident in June 2013 following the respondent circulating his letter dated 12 June 2013 [102] setting out his views on the future of the adjacent property and an intention to fence it in. Mr Wall said that he and the long lessees and hence the applicant, took great exception to the proposals and made their feelings plain, including Mr Wall telling the respondent’s contractor that any fencing erected would be immediately removed. 

 

51. It was not in dispute that on 2 July 2013 the respondent’s contractors entered onto the adjacent land erected some fence posts. On that day the applicant’s solicitors wrote to the respondent’s solicitors [99] requiring that the posts be removed and stating that if they were not the applicant would procure their removal. An injunction was threatened and undertakings sought. In the event Mr Wall did remove the posts and the respondent did not take any formal steps to reinstate them or to erect fencing.

 

52. There followed email traffic [92-98] in which the respondent put forward certain proposals to try to gain the lessees approval of a proposed planning application. In the event that was not forthcoming, partly it would seem because the respondent was not able to explain how he proposed to overcome the local planning authority’s policy against infill development in conservation areas. Mr Wall denied that this email traffic amounted to negotiations and denied that at any time had he agreed that the respondent should have access to the adjacent property or be entitled to the development of any of it.  In particular it may be noted that in an email dated 11 July 2013 Mr Wall included the following: “Finally if you instruct your builder to commence the fencing which is deemed illegal, then that fencing will be removed as before by our own workforce and an injunction will immediately be put in place, this, without any further discussion.”

 

 53. Next, Mr Wales called Mrs Frances Lang to give evidence. Mrs Lang produced her letter at [14] and said that it was true. By way of clarification she explained that she was considering buying of one the flats in Morningside and on her first viewing in May 2003 the grass on the lawns was fairly high and in her view unkempt. There was also a derelict caravan on the adjacent property. Mrs Lang said she was a keen gardener, had standards and noticed these things. In July 2003 she had a second viewing and on this occasion she noticed that the lawns had been cut and she thought that the caravan had been removed by then also. Mrs Lang said that she moved in in December 2003 and certainly by this time the caravan had been removed.

 

54. In cross-examination Mrs Lang said that when she moved in she was working full time, then went part-time and finally retired in 2011. Mrs Lang accepted that her partner, Mr Moxhey, who does not live with her, was, until three years ago in full time work as a shoe repairer but was a very keen gardener and did gardening work on a part-time basis. He still does gardening work on that basis and he looks after the garden and grounds at Morningside and he has been paid for all the work that he has done. I gained the strong impression that Mrs Lang and Mr Moxhey have worked together on a number of projects in and around the grounds.

 

 

55. Mrs Lang said that she first became aware that the adjacent land was not owned by the applicant in about 2007/8.

 

The gist of the case for the respondent

56. The gist of the respondent’s case is that at no time has he been dispossessed of the adjacent property and that throughout he has had the intention to obtain planning consent to carry out a development on the property. Given the size and location of the adjacent property it was always his view that development with the approval and agreement of the long lessees at Morningside would have a much greater prospect of success in achieving a planning consent.

 

57. First Mr Dodge called Mr Alec John Chamberlain. His witness statement is at [68]. In essence all it says it that the matters set out in the respondent’s witness statement dated 6 June 2014 [18] as refer to or concern him, Mr Chamberlain, are true. References to Mr Chamberlain in the respondent’s witness statement are set out in paragraphs 12- 15.

 

58. In cross-examination Mr Chamberlain said that he was a friend of the respondent’s; they both had properties in Portugal. Before moving to Ireland, where he now lives Mr Chamberlain used to live in Torrington, Devon. He said that in or about 1996 he and the respondent came to an informal understanding that when he was in England he would pop down to Torquay and take a look at the property and report any problems. He said he never made any formal written reports. He would report in person if he was due to return to Portugal shortly, otherwise he would report by telephone.  There was never any firm regularity about the proposed visits, just a vague understanding of a couple of times a year, perhaps twice a year, at a time of Mr Chamberlain’s choosing when it was convenient to him.

 

59. Mr Chamberlain said that in the early days the visits tended to be for a little longer than a few minutes and they tended to get shorter as time went on. He said he recalled one occasion he made a visit in February, his wife had accompanied him. It was very cold. He left his car engine running whilst he had a quick look around and was probably there for only 10 minutes or so.

 

60. Mr Chamberlain said that when he visited, it was always via Barrington Road. Back in 1996 the land was in an awful mess, unkempt and not a managed garden as it is today. Mr Chamberlain said that he considered his main task to clear up any glass, broken bottles or other rubbish that might be a safety hazard. He thought his job was to make it safe. He said he usually had his tool kit with him in the car and in the early days he cut a few trees back. Up to the late 1990s if there were branches overhanging the pathways he would cut them back and put them to one side on the floor.

 

61. Mr Chamberlain was quite adamant that he was not a gardener. He said it was obvious to him that from about 2004 onwards the adjacent property and the Morningside gardens began to be improved. He said that he had not carried out any maintenance work since 2005/6 and he presumed the residents had a contractor in to carry out the work. He said that he had a recollection of speaking with two residents, Lyn & Gwyn who asked him about gardening and he said he told them that if there was anything to talk about they should speak with the respondent.

 

62. Mr Chamberlain said that he was aware there was a shed or summerhouse in the grounds. He said it was old and rickety, and he never checked the door or tried to open it as he did not consider it his business to go nosing about. Mr Chamberlain said that he was aware of a gate leading on Ellesmere Road and that at some point the old gate was replaced and locked.

 

63. Mr Chamberlain accepted that there was no physical boundary between the gardens of Morningside and the adjacent property and that anyone looking at the two pieces of land would naturally think they were just one large garden.

 

64. Next, evidence was given by Mr Christian Sweeting via Skype. I have already recorded Mr Sweeting’s evidence about the history of the title and the corporate set up with the Timechime companies.

 

65. Mr Sweeting also agreed that in the absence of any physical boundary feature anyone visiting Morningside would conclude that the adjacent property was part of the garden.

 

66. Mr Sweeting explained that before the long leases were granted in 1991 one of the then elderly residents, a Mr MacGrego,r used to do the gardening and he continued to do so after that. He was paid something for his work but no one ever thought to obtain contributions from the long lessees through a service charge or to ask Mr Schroeder for a contribution. Mr Sweeting said he was not aware of the respondent ever having any maintenance on the adjacent land carried out. he accepted that if no maintenance had been carried out for a long time the land would have become very overgrown.

 

67. Next evidence was given by the respondent, also via Skype. The respondent confirmed that his witness statements at [18 and 69] were true.

 

68. The respondent said that he now lives in Portugal and that he last visited the adjacent property in 1996 which was when he was last in the United Kingdom. The respondent imagined that any demarcation between the gardens of Morningside and the adjacent property were the same now as they were in 1993 when he bought the land.

 

69. The respondent explained that he was a chartered surveyor with experience in the development of property and that he and Mr Sweeting had been in a business relationship for a number of years but that came to an end in 1996. At one time there was a suggestion that he and the Sweetings might jointly do something with Morningside and the adjacent land but that was not going to happen after 1996 and so the respondent decided to go it alone. He made a planning application in 1996 but it was refused. The property is in a conservation area and historically the local planning authority disliked infill schemes. However, he thought the policy might change over time. The respondent said that he was aware Mr Sweeting was well connected locally, had contacts and influence and he kept in touch with him. The respondent said that he was aware the Sweeting family ceased to have any interest in Morningside in about 2002.

 

70. The respondent confirmed that he did not engage Mr Chamberlain to do any gardening work, but just to check nothing was dangerous. His brief was to visit about twice per year as he saw fit and to report anything untoward. The respondent’s attention was drawn to his solicitors’ letter dated 21 June 2013 [100] which was very specific as to when the alleged visits were undertaken. He denied the letter was exaggerated to improve his case and assumed the solicitors had misunderstood his instructions or explanations.

 

71. The respondent said that he was aware there was a gate from the adjacent property leading onto Ellesmere Road and that the gate was locked and that he did not have a key to it. The respondent said he was not aware the gate was replaced in 2003; he did not think Mr Chamberlain would have been aware of that because he would have used the main Barrington Road entrance.

 

72. The respondent also said that Mr Chamberlain had not told him that external lighting had been installed in 2003 or that extensive planting had been undertaken. He said that Mr Chamberlain did tell him that someone was mowing the lawns. The respondent said that he was not aware of any substantial improvements to the garden having been carried out. He said that a well cultivated garden would not have bothered him. It was always his plan that whatever development might be carried out would involve improved landscaping in a manner sympathetic to Morningside and its gardens and in a manner that would benefit the residents of Morningside. There would be linkage of the two sites and he did not see cultivation of his land a bar to his proposals.

 

73. The respondent said that he was not aware of any notice issued by the local authority requiring the trees on the adjacent property alongside Ellesmere Road to be lopped and he was not aware that in 2003 these had been lopped by and at the cost of the long  association.

 

74. The respondent said that he was made aware of the applicant’s 2011 application and that it had been rejected, that he had two years in which to bring possession proceedings and that he did not issue possession proceedings within that period.

 

75. The respondent said that he had tried to negotiate a settlement to resolve things with the long lessees. He was of the view that agreement of the residents to his plans would carry some weight and help him achieve a planning consent. Conversely any objection to his proposals by the residents might scupper his plans. Thus he was keen to try and work with the residents. In hindsight the respondent believes that he was strung along by Mr Wall.

 

76. The respondent said that he was clear from the applicant’s solicitors’ letter dated 2 July 2013 [99] what was being asserted by the applicant but he did not accept that the assertion was correct. The respondent said that he had to withdraw his builders because if he had not done so there would have been a fracas. Mr Wall had already removed the posts and what fencing had been erected and he had also replaced the lock on the Ellesmere Road gate.

 

77. He said there ensued correspondence on a without prejudice basis because both parties wanted to have a discussion without prejudice to their respective legal positions. The respondent accepted that at this time the applicant was occupying the land and that it was not doing so with his permission.

 

78. Finally, Mr Dodge relied on the evidence of Mr Jones, the architect [72]. This was not controversial and was to be taken as read. In essence he says that:

 

78.1 He submitted a planning application on behalf of the respondent in 1996, but it was refused;

 

78.2 In 2000/1 he received instructions from the respondent to prepare outline   development proposals, and that he did so;

 

78.3 In 2006 he was asked to draft yet more proposals, and that he did so;

 

78.4 In 2010 the respondent told him the proposals had been uut on hold due to the global banking crisis and collapse in the property market; and

 

78.5 In October 2013 he had been involved in drafting revised sketch plans for the respondent copies of which were sent to Mr Wall in September 2014.

 

Findings of fact

79. On the oral and written evidence presented to me I am able to make the findings of fact set out below.

 

80. In 1991 the flats within Morningside were sold off on long leases and the adjacent property was sold off to Mr Schroeder with the consequence that the financial interest of the Sweeting family in what was originally Morningside with its extensive grounds and gardens was considerably reduced. The Sweeting family retained an interest in one of the flats, 1A which was sold to Mr Vincent in July 2002. Whilst a basement storeroom was retained by the family for a while it does not appear to have been used by them. My distinct impression is that overtime the Sweeting family’s emotional interest in the Morningside and its upkeep waned. Mr Sweeting’s late father had been involved with the property since the early’ 1970s but following his death and the subsequent disposal of much of the property the family interested waned. Mr Christain Sweeting and his brother had less interest in it.

 

81. Over the period 1991 to June 2001 the freehold interest was vested mostly in one of the Timechime companies and on one or more occasions in the Crown as bona vacantia pending a Timechime company being restored to the register. Over this period which ever Timechime company was the landlord of the day it did not provide any services and raise service charges as provided for in the long leases. Mr Sweeting said, and I accept, that a Mr MacGregor who was an elderly resident was paid by the family to continue to do some gardening around the house for a while. The fact that the Sweeting family did not provide services, raise any service charges and allowed Timecharm companies to be dissolved and struck off the register leads me to infer that their interest in Morningside and its upkeep had fallen to a very low level.

 

82. The evidence of Mr Wall, which I accept, was that towards the end of the 1990’s he had friends who lived in a flat in Morningside and that he visited them there occasionally. His recollection was that the grounds around the house were mowed and tidy, although not as extensively planted with flowers as they are today. At that time he was not aware that the adjacent property was in a different legal ownership. His impression was of one large garden, reasonably tidy and not overgrown.

 

83. The evidence of the respondent, Mr Martin, which I accept on this point, was that he had not visited the adjacent property since 1996 and thus he had not himself carried out any gardening work on it. Whilst I accept that Mr Martin asked Mr Chamberlain to keep an eye on the property from time to time he did not request Mr Chamberlain to do any maintenance or gardening work.

 

84. The evidence of Mr Chamberlain, which I also accept on this point, was that in 1996 on his first visit the ‘land was in an awful mess’. The main purposes of Mr Chamberlain’s visits were to check on any safety issues. He did not carry out any gardening work. He did not carry out any maintenance work, what he did was limited to the occasional cutting back of an overhanging branch. I find that Mr Chamberlain did not use or occupy the land nor did he exercise any significant control over the land for or on behalf of the respondent.

 

85. There was no evidence from the respondent as to how the adjacent property was transformed from the ‘awful mess’ Mr Chamberlain saw in 1996 to the mowed and reasonably tidy state that Mr Wall recollects seeing on his visits in the late 1990s and the improvements which Mr Chamberlain also noted, and which he presumed were carried out by contractors organised by the residents. I infer that this transformation came about because the residents at Morningside were collectively and on an informal basis tending the grounds to some extent. I am reinforced in this conclusion by the written evidence of Miss Baker and Mrs MacGregor both of whom were said by Mr Wall to be reliable persons and both of whom speak about carrying out gardening and general maintenance of the grounds in the years prior to the late 1990’s. This evidence is contained in documents headed ‘Declaration’ and have the appearance of being rather formal in nature. They were signed on separate occasions in 2006, long before these proceedings were contemplated. The evidence of Mr Wall, which again I accept, was that these two elderly ladies had historical knowledge of Morningside and he thought it sensible to get something in writing from them. Given the formal look of the documents I infer that both ladies will have taken them seriously and considered them carefully before signing them.

 

86. I thus find that from 1996 onwards the only gardening and maintenance work carried on or to the adjacent property was carried out by the residents of the flats at Morningside, or some of them. I am reinforced in this conclusion by the evidence of Mr Wall on this point. At [77] Mr Vincent says that he was treasurer of the Morningside Residents Association from July 2002 to May 2005. I infer that Mr Vincent took over from the previous treasurer. It appears that this association ran Morningside and carried out services including grounds maintenance and collected funds from the residents to enable it to do so. I infer that prior to the applicant acquiring the freehold interest in Morningside in November 2004 the association funded any purchases of any of the usual gardening item of expenses such as plants, garden tools and implements, herbicides, pesticides and fertilisers required. I infer that those residents who took an interest in the gardens and grounds organised the expenditure between themselves because they would be the persons keenest to purchase what might be required.

 

87. I find that the lawns and gardens of Morningside and the grounds comprising the adjacent property continued to be mown, tended and cut back as required at a basic level until the early 2000s. 

 

88. I find that between February and April 2001 Mr Wall renovated flat 7 and in the course of doing so he cut the lawns on the adjacent property close to flat 7 during this period.

 

89. Mrs Lang moved into her flat in December 2003. I accept Mrs Lang’s’ evidence. Mrs Lang plainly took a keen interest in the gardens and grounds of Morningside. It is plain that Mr Wall and Mrs Lang between them have been the driving force in the gradual improvement and development of the gardens and grounds into the quite stunning grounds we see today. Since the applicant acquired the freehold interest in Morningside in November 2004 a substantial amount of work has been carried out to the grounds and gardens including on the adjacent property which has been funded through the service charge. In addition payments to such as Mr Kass and Mr Moxhey and other contractors those residents at Morningside with an interest in the gardens and grounds have continued to ‘do a bit’ as and when it has suited them to do so.  

 

  90. There was not much in the oral evidence of the respondent, Mr Martin, material to what I have to decide, that was controversial. Mr Martin, Mr Sweeting and Mr Vincent were all prominent in the local business community doing deals, business and property transactions with one another. I infer that they kept an eye on what was going on locally to see there was the scope for profit to be made. I accept Mr Martin’s evidence that when he purchased the adjacent land it was with a view to developing it to his advantage. This evidence is supported by the evidence of Mr Jones, which was not challenged, that over the period from about 1996 to 2010 he prepared a couple of sets of plans or sketch proposals for the prospective development of the adjacent land, and on one made occasion made he made an application to the local planning authority for planning permission. The respondent has not used the land since he purchased it in 1993. He has not visited the land since 1996. He has never exercised any significant control over the land. Apart from some very minor lopping of branches by Mr Chamberlain once or twice in the late 1990s, he has not procured any maintenance of the land.   

 

91. It was not in dispute that in June 2013 the respondent sent his contractors onto the adjacent property with a view to erecting some fencing but before they could do so  they were seen off by Mr Wall and his neighbours in short order. The applicant was not dispossessed of the land. The contractors did not return and at no time has the respondent issued legal proceedings to recover possession and/or to restrain the applicant from preventing fencing works being carried out.   

 

92. In case it should matter I ought to make findings about the written evidence of Mr Vincent. His witness statement is at [77]. I have already explained that I did not find Mr Vincent’s non-attendance at the hearing meritorious. Mr Vincent and Mr Wall did not part on good terms. In his statement Mr Vincent says that he met Mr Chamberlain when Mr Chamberlain was on one of his occasional visits to Morningside. Mr Chamberlain did not mention that meeting in his witness statement. There was no evidence from the respondent, Mr Martin, that he had requested Mr Chamberlain to carry out a survey on his behalf. Mr Vincent, Mr Martin and Mr Sweeting were all well known to one another. Mr Martin was in direct contact with Mr Sweeting in any event. Mr Vincent’s account of this alleged chance meeting lacks credibility. In these circumstances I am not prepared to give weight to this part of Mr Vincent’s evidence which is not in any way corroborated. That said I should make it clear that I do not regard the fact that in February 2005 Mr Martin had in his mind the future development of the adjacent property to have any significance on the issues of adverse possession which I have to determine.

 

The first application

93. Before discussing the rival evidence and submissions concerning the application presently referred to this tribunal I make some observations about the first application.

 

94. In paragraph 3 I made reference to an application having been made in 2011 pursuant to paragraph 1 of Schedule 6 to the Act. In form NAP [140] the respondent:

 

94.1 Required the registrar to deal with that application under Schedule 6 paragraph 5; and

 

94.2 Objected to the registration on the grounds stated in panel 6. Those grounds are set out at [141]. In summary those grounds make reference to visits by Mr Chamberlain, assert that the applicant could not have been in adverse possession on the land in the mistaken belief that it was the owner of it and assert the applicant has not been in possession and raised the suspicion that individual lessees had been accessing and using the land. 

 

 95. By letter dated 25 July 2011 to the applicant’s solicitors Land Registry stated that the (first) application had been rejected because:

 

“… a counter notice has been given …on behalf of Barry John Martin. This required that the application be dealt with under paragraph 5 of Schedule 6 … and you did not indicate in your application that you were relying on any of the conditions in that paragraph.

 

You indicated in your application that you were relying on the third condition in that paragraph, but all four requirements of that condition have to be met, and your client cannot satisfy the third (reasonable belief for at least 10 years) and indeed that has been effectively deleted from panel 12 of Form ST1.

 

If you client remains in adverse possession of the land they may make a further application to be registered as proprietor in two years from the date on which this application was rejected. The date of rejection of this application is shown   below.

 

…

 

DATE OF REJECTION: 25 JULY 2011”

 

96. The material paragraphs of Schedule 6 to the Act are:

 

1

(1) Subject to paragraph 16, 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.

 

(2) Subject to paragraph 16, a person may also apply to the registrar to be registered as the proprietor of a registered estate in land if—

(a) he has in the period of six months ending on the date of the application ceased to be in adverse possession of the estate because of eviction by the registered proprietor, or a person claiming under the registered proprietor,

(b) on the day before his eviction he was entitled to make an application under sub-paragraph (1), and

(c) the eviction was not pursuant to a judgment for possession.

 

(3) However, a person may not make an application under this paragraph if—

(a) he is a defendant in proceedings which involve asserting a right to possession of the land, or

(b) judgment for possession of the land has been given against him in the last two years.

 

(4) For the purposes of sub-paragraph (1), the estate need not have been registered throughout the period of adverse possession.

 

2

(1) The registrar must give notice of an application under paragraph 1 to—

(a) the proprietor of the estate to which the application relates,

(b) the proprietor of any registered charge on the estate,

(c) where the estate is leasehold, the proprietor of any superior registered estate,

(d) any person who is registered in accordance with rules as a person to be notified under this paragraph, and

(e) such other persons as rules may provide.

 

(2) Notice under this paragraph shall include notice of the effect of paragraph 4.

 

3

(1) A person given notice under paragraph 2 may require that the application to which the notice relates be dealt with under paragraph 5.

(2) The right under this paragraph is exercisable by notice to the registrar given before the end of such period as rules may provide.

 

4

If an application under paragraph 1 is not required to be dealt with under paragraph 5, the applicant is   entitled to be entered in the register as the new proprietor of the estate.

 

5

(1) If an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the following   conditions is met.

(2) The first condition is that—

(a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and

(b) the circumstances are such that the applicant ought to be registered as the proprietor.

 

(3) The second condition is that the applicant is for some other reason entitled to be registered as the proprietor of the estate.

 

(4) 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.

 

(5) In relation to an application under paragraph 1(2), this paragraph has effect as if the reference in sub-paragraph (4)(c) to the date of the application were to the day before the date of the applicant's eviction.

 

6

(1) Where a person's application under paragraph 1 is rejected, he may make a further application to be registered as the proprietor of the estate if he is in adverse possession of the estate from the date of the application until the last day of the period of two years beginning with the date of its rejection.

 

(1A) Sub-paragraph (1) is subject to paragraph 16,

 

(2) However, a person may not make an application under this paragraph if—

(a) he is a defendant in proceedings which involve asserting a right to possession of the land,

(b) judgment for possession of the land has been given against him in the last two years, or

(c) he has been evicted from the land pursuant to a judgment for possession.

 

 

Annotation General Notes Library

Paragraph 6

Introduction

The Government’s Explanatory Notes (see General Note: Explanatory Notes) say:

“Paragraph 6 provides that if the applicant’s application for registration is refused but the applicant remains in adverse possession for a further two years, he or she is entitled (subject to the three exceptions in paragraph 6(2) and the two restrictions in paragraph 8) to apply once again to be registered. The two year period is to enable the registered proprietor or registered chargee to take reasonable steps either to evict the squatter (or at least to start proceedings to do so) or to regularise the squatter’s possession by negotiating a bilateral agreement under which he or she can stay as the proprietor’s tenant or licensee.

 

“Transitional arrangements will be needed to cover the case of certain squatters who mistakenly believed themselves to be the owner of the land under paragraph 5(4). The provisions of the Act involve a move from a position where there is (generally) a 12 year limitation period to where there is no limitation period as such, but where it is possible for a squatter to be registered as proprietor after 10 years’ adverse possession. In most cases, the fact that the squatter might acquire title after only 10 years rather than 12 does not matter. The registered proprietor can stop the squatter from acquiring title by objecting to his or her application for registration.

 

“Where a squatter is entitled to be registered because he or she reasonably but mistakenly believed themselves to be the owner of the land under paragraph 5(4), they might find that they were entitled to be registered as proprietor of the land on this basis on the day that the legislation is brought into force, even though they have only been in adverse possession for 10 years and, the day before, the registered proprietor could have successfully initiated possession proceedings against them.

 

“This case will be dealt with by timed implementation. The provisions of the Act are to be brought into force by order. It is therefore proposed to bring paragraph 5(4) into force one year after the rest of Schedule 6. This means that registered proprietors will have one year from the coming into force of the rest of the Act to take proceedings against any squatter who might fall within paragraph 5(4) or otherwise regularise his or her position so that he or she is no longer in adverse possession.”

 

97. At this point it is convenient to set out an extract from the report of the Law Commission which was laid before Parliament and which led to the enactment of the Act

 

 

Law Commission Report 271

 

Land Registration Bill and Commentary

 

Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965

 

Ordered by The House of Commons to be printed 9 July 2001

 

Adverse Possession

 

An outline of the new scheme in the Bill

 

2.74 The essence of the new scheme in the Bill is that it gives a registered proprietor one chance, but only one chance, to terminate a squatter’s adverse possession. In summary, a squatter will be able to apply to be registered as proprietor after 10 years’ adverse possession. The registered proprietor and certain other persons (such as a chargee) who are interested in the property will be notified of the application. If any of them object, the squatter’s application will be rejected, unless he or she can establish one of the very limited exceptional grounds which will entitle him or her to be registered anyway. Of these exceptional grounds, the only significant one is where a neighbour can prove that he or she was in adverse possession of the land in question for ten years and believed on reasonable grounds for that period that he or she owned it. This exception is intended to meet the case where the physical and legal boundaries do not coincide. Even if the squatter’s application is rejected, that is not necessarily the end of the matter. If the squatter remains in adverse possession for a further two years, he or she will be entitled to apply once more to be registered, and this time the registered proprietor will not be able to object. If the proprietor has been notified of the squatter’s adverse possession and has been given the opportunity to terminate it within two years we consider that the squatter should obtain the land. It should be noted that our scheme places the onus on the squatter to take the initiative. If he or she wants to acquire the land, he or she must apply to be registered. This is because the registered proprietor’s title will never be barred by mere lapse of time. One point should be stressed about the provisions of the Bill on adverse possession. They are very carefully constructed to ensure that there is consistency between the way in which applications for registration are treated and what happens when the registered proprietor takes proceedings for possession against the squatter. The   scheme stands or falls as an entity.

 

The law, submissions and discussion

98. There was no dispute between Mr Wales and Mr Dodge as to the key elements of adverse possession. Both agreed that these are conveniently summarised in the Land Registry: Practice guide 4: adverse possession of registered land. 

 

99. Mr Wales raised a point about the interaction of paragraphs 1 and 6 of Schedule 6 to the Act to which I shall revert shortly.

 

100. Mr Wales submitted that the events prior to 2001 merely set the scene. His principle submission was that as at the key date of 21 March 2001:

 

100.1 Timechime 3 was in the process of being dissolved upon which the freehold interest would vest in the Crown bona vacantia;

 

100.2 Effective control of Morningside and its grounds was in the hands of the then nine long lessees acting collectively and sharing the costs through Morningside Residents Association;

 

100.3 At this time the Sweeting family may have had a leasehold interest in one of the flats but was in the process of disposing of it and had ceased providing any services as landlord and had never collected any service charges.

 

100.4 Mr Wall had acquired the leasehold interest in one of the flats.

 

101. Mr Wales observed that the adjacent property had never been and never had the appearance of being a vacant plot. On the contrary ever since the sale of part in 1993 that parcel of land always retained the appearance of being part of the garden of Morningside; the adjacent plot was bounded on three sides mostly by mature walls and there was no physical boundary where the two parcels abutted. The only direct highway access to the adjacent property was via a pedestrian gate along the Ellesmere Road boundary and that gate was kept locked with the only the residents having keys to it; the respondent never had a key to it. That gate and lock was also replaced by the applicant when it was forced by the respondent’s contractors. Similarly the summerhouse or shed was also kept locked by the residents and the respondent never had a key to it.

 

102. Mr Wales submitted that it was self-evident the grounds had been maintained since 1993. If untended since 1993 they would have become overgrown and impenetrable and the respondent had accepted that he had never maintained the grounds himself or procured anyone else to maintain them on his behalf.

 

103. Following Mr Wall acquiring a flat in 2001 he was an invigorating person who galvanised the then residents into improving the grounds and amenities of Morningside ably supported by Mrs Lang after she acquired her flat in December 2003.

 

104. At all material times some of the residents have been sub-tenants of the long leaseholders and Mr Wales submitted that all of the long leaseholders either directly or through their tenants as a group and collectively have possessed the land and treated it as their own, doing the normal things an owner of such land would.

 

105. Mr Wales submitted that at no time have the long lessees been dispossessed. The respondent never took any direct action or steps himself. Mr Chamberlain did not displace possession; he only did a little looking about and the occasional lopping of some branches and a little litter picking – not much at all and he never took control of the subject land. I agree.

 

106. Mr Wales drew attention to the decision in Powell v Macfarlane [1977] 38 p & CR 452 and submitted that on an objective basis the legion overt acts carried out by the residents before and after March 2001 were sufficient to establish the claim to adverse possession. He said that fact the two parcels of land were in separate ownership was not known to the residents until after 2003 but when the position became clear everyone just carried on as before, with those keen on gardening was doing their bit and treating the whole of the grounds as part of their own common garden.

 

107. Mr Dodge, in his rival submissions, urged me to conclude that activity on one part of the land is not possession of the whole of the land. Mr Dodge also submitted that dispossession was not to be presumed by non-use or apparent abandonment and he cited Tecbuild Limited v Chamberlain [1969] 20 P & CR 633 in support. I accept that submission and find that the squatter has to make out its own positive case that it has obtained title by dint of adverse possession.

 

108. Mr Dodge submitted that to constitute possession, control must be exercised by a person in his own right. He accepted the general principle that where a tenant takes possession of land adjoining or near the demised premises, and holds the land for the limitation period, it is to be treated as part of the demised premises, which, at the end of the term must be delivered up to the landlord. Mr Dodge submitted that here the subject land was in the vicinity of a numerous demised premises, that is numerous flats with different tenants doing different things over various parts of the adjacent property. I reject those submissions. Parts of the grounds of Morningside are common parts for the purposes of the leases. The lessees (and hence any sub-tenants) have rights over those common parts. I see no reason in principle which precludes those lessees acting collectively from taking possession of adjacent land and effectively enlarging those common parts for the benefit of the landlord.

 

109. Mr Dodge drew attention to Neilson v Poole [1969] P & CR 909 to support his submission that mere acts of cultivation would not suffice. He submitted that Neilson concerned a house with a garden which had been divided and that there were no physical boundary features. I did not find this authority to be of assistance. The case concerned the proper construction of a conveyance of part and oral agreements as where the legal boundary lay. The legal boundary ran across garden land laid to lawn. In giving his judgment Megarry J said at 921:

 

“The principal acts relied upon here are those of mowing the grass. The plaintiff believed in cutting the grass shorter than the defendant, and so, it was said, one could usually see the line between the two properties. If, indeed, a thin line of grass had consistently been left unmown, that might indeed have indicated a boundary. But it is not suggested that this was done here. Accordingly, it seems to me inevitable that each owner, in mowing his lawn, must have overlapped onto his neighbour's land, even though only by a small amount. Unless in mowing each had attained an astonishing degree of mathematical and geographical precision, there must have been a small area of overlap; and over this area (not necessarily precisely to the same extent on each occasion) each party in turn exercised from time to time the degree of control requisite for mowing.

 

I refuse to infer from acts such as these, done by persons who knew that the precise line of the boundary was not agreed, the mental and physical qualities that are requisite to establish a sufficient possession of the land in dispute. When there is a defined boundary of land, acts on one part of that land may show a sufficient possession up to the boundary. Where there is some physical division, acts done up to the line of that division may show possession up to that line: see the West Bank case at pp. 679, 680, But where there is neither defined boundary nor physical division, I consider that nothing short of exceptionally cogent and precise evidence can establish a sufficient possession, or adverse possession, up to some alleged dividing line. For the purpose of the alternative claim based on adverse possession or possession I must consider the matter on the footing that no boundary which shows that the defendant has encroached on the plaintiff's land has been established by the conveyance or the boundary agreement. If (as I hold to be the case) there is such a boundary, there is no need for the plaintiff to rely upon adverse possession or possession as a separate head: the land is his. But on the footing that there is no such boundary, in my judgment there is no evidence of possession or adverse possession of the relevant land sufficiently cogent to carry the plaintiff to victory, and I would accordingly reject his claim if it rested on that ground alone. However, my decision on the conveyance and on the boundary agreement means that this decision on adverse possession and possession makes no difference to the results of the case. I would only add that, in my judgment, the acts of the plaintiff and the defendant in this border area are insufficient to entitle either to claim to be in possession to the exclusion of the other up to any material line of division.”

 

 

110. In contrast there are numerous authorities cited in Adverse Possession; by Jourdan and Radley-Gardner 2^nd edition, starting at paragraph 13-30 including, of course, Powell to the effect that cultivating land for crops or as a garden can and often does amount to possession. In the subject case the long lessees went further and laid out paths and walkways, secured the pedestrian gate, locked the summerhouse and installed external lighting.

 

111. I prefer the submissions of Mr Wales and I am satisfied on the evidence before me that prior to 21 March 2001 the long lessees firstly through the Morningside Residents Association and latterly through the applicant have been in adverse possession of the adjacent land.

 

112. Mr Dodge submitted that applicant was dispossessed or is deemed or presumed to have been dispossessed in June 2013 when the respondent sent in his contractors and that thereafter there were negotiations between the parties. In support of that proposition Mr Dodge relied upon several authorities:

 

Colin Dawson Windows Limited v Kings Lynn, West Norfolk Borough Council [2005] EWCA Civ 9, the headnote to which reads: “The essence of BP Properties v Buckler [1988] 55 P & CR 337 was that it was natural to draw an inference of permission where a person was in possession pending negotiations for the grant of an interest in that land.”

 

Smart v Lambeth LBC [2013] EWCA Civ 1375, where in paragraph 36 a similar view was expressed.

 

113. Colin Dawson was fact sensitive. The Court of Appeal stated the facts were that the squatter (Dawsons) searched out the person who they believed to be the paper owner and wrote to her stating they wished to buy the land and asking her to put her solicitors in touch with them. At some point Dawsons moved onto the land. Dawsons submitted a plan and valuation of the land and made a subject to contract offer of £2,500 which was accepted. For various reasons the transaction did not complete. Ultimately Dawsons claimed possession by dint of adverse possession. Rix LJ observed in paragraph 39 that authorities showed “… it is natural to draw an inference of permission where a person is in possession pending negotiations for the grant of an interest in that land, a proposition with which I would respectfully agree. In the present case the implication of the correspondence was that Dawsons could remain on Mrs Howard’s property only if negotiations proceeded for its sale to them. He went on to say: “…in my judgment a reasonable person in the position of either Dawsons or Mrs Howard would conclude that Dawsons were being permitted to remain on the land pending the completion of the negotiations.”

 

114. I am far from satisfied that the email exchange amounted to negotiations for the grant of an interest in the land. In essence the respondent suggested that the applicant should cooperate with an application for planning consent, and if granted the profits from that should be shared 50:50 and that if planning could not be achieved he would be willing to sell the land to the applicant at a price to be agreed. The responses from Mr Wall were luke warm and he made it plain it was not his decision alone as there other shareholders to consult. In the email exchange he attempted to obtain:

 

114.1 Further detail of the proposed development, which the shareholders would need to understand in order to consider how it would affect them and what the implications for them might be;

 

114.2 How Mr Martin proposed to overcome the policy of the planning authority against infill development in conservation areas; and

 

114.3 What price Mr Martin had in mind if planning consent was not forthcoming.

 

In the event Mr Martin did not provide any of that information. In evidence Mr Wall said that he was endeavouring to clarify with Mr Martin was his proposal was so that he could discuss it with his colleagues. He said that at no time did he indicate that the applicant was willing to negotiate to enter into a joint venture to develop the adjacent property or to purchase it or an interest in it.

 

115. Mr Dodge sought to establish that this email exchange amounted to negotiations from which it was to be inferred that the respondent gave permission to the applicant to remain on the land pending the outcome of those negotiations.  The first difficulty with that was that in cross-examination the respondent was clear that at the time of the exchange there was a stand-off, the applicant was already occupying the land and was not doing so with his permission. I infer from this that the respondent did not give consent for the applicant to remain on the land and he was not to be taken as allowing the applicant to remain in occupation with his consent. By the same token Mr Wall was adamant the applicant was entitled to be in occupation and at no time did he or the applicant seek the respondent’s consent to remain in occupation.

 

116. I am satisfied that at no time did Mr Wall make an offer to enter into a joint development of the adjacent property or to purchase it, nor did he hint that such an offer might be made. I am also satisfied that a reasonable person in the position of either Mr Wall or Mr Martin would not conclude that the applicant was being permitted to remain on the land pending the completion of the negotiations to enter into a joint development of the land or the purchase by the applicant of an interest in the land.

 

117. There was a related issue about the admissibility of this email exchange because both parties said that the exchange was without prejudice to their respective legal positions. Mr Wales cited passages (including paragraph 85) from Ofulue and anor v Bossert [2009] UKHL 16 in support of his submissions. Mr Dodge argued that the email exchange was admissible to the extent it went to the fact that there were negotiations on foot in the Colin Dawson sense.

 

118. The findings I have made above are sufficient to dispose of the reference before me. I find that the applicant has established its case. I have therefore directed that the Chief Land Registrar should give effect to the original application dated 5 August 2013 under paragraph 6(1) of Schedule 6 to the Act as if the objection of the respondent had not been made. However, in case it should be held that I was in error in coming to the conclusion that the adverse possession established by the applicant pre-dated 21 March 2001 there is one further argument raised by Mr Wales I should address and I do so below.

 

The period of adverse possession to be established on a paragraph 6 application

119. In paragraph 96 above I have set out the material paragraphs of Schedule 6 to the Act. Mr Wales submitted that where, as here, an application is made under paragraph 6 all the applicant has to do is establish is that he: “is in adverse possession of the estate from the date of the application until the last day of the period of two years beginning with the date of its rejection.” Mr Wales said the period of adverse possession the applicant has to establish is thus 25 July 2011 (date of rejection) to 5 August 2013 (date of application). The applicant is not, he submitted, required to establish ten years of adverse possession prior to the paragraph 1 of Schedule 6 apploication.

 

120. Mr Wales relied upon the clear and literal meaning of the words of paragraph 6. Mr Wales said that he was not aware of any authority on the proper construction of paragraph 6. In those circumstances he considered it his professional duty to take the point on behalf of his client.

 

121. Mr Dodge accepted that the point was fairly put by Mr Wales.

 

122. My attention was drawn to Baxter v Mannion [2011] EWCA Civ 120. This case concerned an application made under paragraph 1 of schedule 6 by a squatter who claimed to have been in adverse possession for the requisite period of 10 years. The   application was correctly served but the registered proprietor failed to serve a counter- notice in time. Accordingly the application was successful and the applicant was registered as proprietor under paragraph 4. The former proprietor subsequently applied for rectification of the register to restore himself as proprietor. A deputy Adjudicator to HM Land Registry held that the squatter had not in fact been in adverse possession of the subject field for the requisite 10 year period, and that in those circumstances there had been a ‘mistake’ which, by paragraph 5 of Schedule 4 to the Act gave her jurisdiction to order rectification of the register.

 

123. On appeal Henderson J held that although an applicant would automatically be registered under paragraph 4 of Schedule 6 if no counter-notice were served, if the   former owner later proved on the balance of probabilities that any statutory condition which was a prerequisite for registration had not been satisfied the occupier’s registration would constitute a mistake under paragraph 5(a) of Schedule 4 which the registrar had jurisdiction to correct.   

 

124. Thus on appeal the Court of Appeal was not considering paragraph 6 at all but a separate issue and so the authority is not directly on point. In giving the lead judgment Jacob LJ did make a helpful observation about paragraph 1 of Schedule 6 in these terms:

“24. I start with the language of the Act. Paragraph 1(1) of Schedule 6 says: ‘A   person may apply to the registrar to be registered … if he has been in adverse possession of the estate.’ That surely indicates that a person who has not in fact been in adverse possession is simply not entitled to apply. Parliament cannot have intended that such a person could get registered title. A registration obtained by a person not entitled to apply would be mistaken. So, putting the register back in the condition it was prior to the application would be correction of a mistake within the meaning of paragraphs 1 and 5(a) of Schedule 4.”

 

125. To my mind that passage gives guidance that a prerequisite to a valid application   under   paragraph 1 of Schedule 6 is that the squatter must been in adverse possession   for the required 10 years. If he has not his application is not valid and if his invalid application has resulted in a registration that registration can be overturned by correcting a mistake.

 

126. In the subject case the respondent did lodge a counter-notice in time. A copy is at [140]. In addition to requiring the application to be dealt with under paragraph 5 of Schedule 6, the respondent set out several grounds of objection on the merits, including that he had not been dispossessed and that the applicant had itself possessed the land. By letter dated 25 July 2011 Land Registry rejected the application for the reasons set out in paragraph 95 above. In essence that was because the application form had not stated plainly for the previous 10 years the applicant reasonably believed   that the land to which the application relates belonged to him.

 

127. I infer that the application was rejected because the applicant had failed tick all of the correct boxes in panel 12 of the statement of truth in form ST1 in support of the   application. So far as I am aware there was no investigation by Land Registry as to whether or not the applicant had been in adverse possession for the requisite 10 years and no investigation into the merits or otherwise of the respondents objections and assertion that the applicant had not made out its case of 10 years adverse possession. Thus the rejection was not made on the footing of any enquiry into whether or not 10 years of adverse possession had been made out. The rejection was an administrative act based on the applicant’s failure to complete fully panel 12 of the form ST1.

 

128. Mr Wales relies solely on the literal interpretation of the words used. If he is right about that odd results could easily arise. For example an applicant could make an   unmeritorious application under paragraph 1 without having been in adverse possession for 10 years, procure Land Registry to reject the application, be in adverse   possession for just over two years from the date of the rejection and then make a   successful application under paragraph 6. Thus a squatter will have the opportunity to obtain registration having been in adverse possession for a relatively short period, perhaps just over two years. Even if the squatter were to assert adverse possession for that 10 year period the registered proprietor would never get the opportunity to challenge that assertion and to have his challenge determined on the merits. In my judgment such a perverse outcome cannot have been what parliament intended.

 

129. What is said in paragraph 6 is that where a paragraph 1 application is rejected an applicant may make a further application if he has been in adverse possession for two years beginning with the date of the rejection. I find that paragraphs 1 and 6 of Schedule 6 have to be read and interpreted together and in context. A prerequisite for a   valid application under paragraph 1 is that the applicant must show 10 years adverse possession. A prerequisite of an application under paragraph 6 is that the applicant has made an application under paragraph 1, it was rejected and that he has been in adverse possession for the period of two years beginning with the date of rejection. In my judgment reference in paragraph 6 to an application under paragraph 1 must be a   reference to a valid application under paragraph 1. That is to say, an application under   which the applicant can show 10 years adverse possession prior to the making of the application.

 

130. I am reinforced in my conclusions by several sources. First the report of the Law Commission in which the new regime drafted for Parliament is explained and in which in paragraph 2.74 it says clearly that a squatter will be able to make an application after 10 year’s adverse possession. The proprietor has the right to object. If that right is exercised the application must be rejected unless one of the very limited and exceptional grounds can be made out. Then, in relation to a paragraph 6 application: “…If the squatter remains in occupation for a further two years, he or she will be entitled to apply once more to be registered, and this time the registered proprietor will not be able to object”.  That plainly predicates that the squatter has to be in adverse possession for 10 years under the paragraph 1 application and then a further two years under the paragraph 6 application.

 

131. Section 9 of Land Registry: Practice guide 4 states that if a squatter’s application was rejected, “… they will be able to reapply to be registered as proprietor, provided they remain in occupation for a further two years from the date the date of rejection of the previous application.” Again I find that predicates the squatter has to be in adverse   possession for 10 years under the paragraph 1 application and has to remain in adverse possession for a further two years.

 

132. Similar wording is found in Adverse Possession: by Jourdan and Radley-Gardener 2^nd edition paragraph 22-97 which discusses the effect of a paragraph 6 application and where the authors say: “ … if a squatter makes an initial application under Sch 6, para 1 which is rejected, and he remains in adverse possession for a further two years …”.

 

133. For these reasons I hold that properly construed an applicant under a paragraph 6   application must first have made a valid application under paragraph 1 and be able to show adverse possession of the land for the 10 years preceding the making of that application.

 

134. In the subject case the paragraph 1 application was made on 21 March 2011 and so the applicant must show that it can rely upon adverse possession from that date onwards.

 

Costs

135. In this jurisdiction, as with the civil courts, costs follow the event save in exceptional circumstances. I am therefore minded to make a costs order in favour of the applicant. I will, however, give careful consideration to any application for costs that may be made.

 

136. If the parties are unable to reach agreement on costs, any application for costs shall be made in accordance with the following directions:

 

136.1 Any application for costs shall be made in writing by 5pm Friday 31 July 2015. The application shall be accompanied by a schedule of the costs and expenses incurred/claimed supported by invoices/fee-notes where appropriate. A breakdown shall be given of the work carried by solicitors and the charge-out rate and grade of the fee-earner(s). A copy of the application and supporting schedule shall be sent to the opposite party at the same time as it sent to the tribunal.

 

136.2 The recipient of an application for costs shall by 5pm Friday 21 August 2015 file with the tribunal and serve on the applicant for costs representations on the application and on the amount of the costs claimed and any points of objection he or she wishes to take.

 

136.3 The applicant for costs shall by 5pm Friday 4 September 2015 file with the tribunal and serve on the opposite party representations in reply, if so advised.

 

137. In the absence of any objections I propose to make a determination on any application for costs, and if appropriate, to assess any costs ordered to be paid, without a hearing and on the basis of the written representations filed and served pursuant to the directions set out in paragraph 136 above.

 

 

Dated this Wednesday 24 June 2015

 

 

 

 

By order of the Tribunal