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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Jane Winifred Wheeler v (1) Sidhartha Patnaik (2) Suman Pattanaik (Miscellaneous cases : Miscellaneous) [2015] EWLandRA 2014_0519 (04 August 2015)
URL: http://www.bailii.org/ew/cases/EWLandRA/2015/2014_0519.html
Cite as: [2015] EWLandRA 2014_519, [2015] EWLandRA 2014_0519
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PROPERTY CHAMBER
FIRST-TIER TRIBUNAL
LAND REGISTRATION DIVISION
IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
LAND REGISTRATION ACT 2002
REF NO 2014/0519
B E T W E E N:
JANE WINIFRED WHEELER
Applicant
And
(1) SIDHARTHA PATNAIK
(2) SUMAN PATTANAIK
Respondents
Property address: Land on the south west side of Greenhill, Wootton Bassett
Title number: WT302571
Before: Judge McAllister
Alfred Place, London
16 July 2015
Representation: Mr Glastonbury of AB Legal Assist represented the Applicant; Mr Nigel Thomas of Counsel instructed by Wansbroughs appeared for the Respondents
DECISION
Introduction
1. The issue in this case is the ownership of a plot of land on the south west side of Greenhill, Wootton Bassett, forming part of title number WT302571 (‘the Land’). The Land and the remainder of the registered title were purchased by the Respondents on 19 April 2012. They became the registered proprietors on 18 May 2012.
2. As the decision makes reference to a number of registered titles, I will start by giving a brief summary and description of each:
a) Title Number WT246841: first registered in the name of Wayne Clark and Henry Clark on 1 March 2006. This land included number 27 Greenhill, where Henry Clark lived for most of his life. This title also included the Land.
b) Title Number WT302571: this title was created in 2012 out of WT246841. It includes part of the Land. The remainder of the Land (and other land) remained within WT246841, which was purchased by Mr Whiting in 2012.
c) Title Number WT100637: this comprises 28 Greenhill and land to the south, and was first registered on 8 March 1991. It is currently owned by Mr and Mrs Woodridge
d) Title Number WT137181: a small parcel of land formerly part of the land owned by Henry Clark first registered on 21 November 1994 and now registered in the names of Susan Litchford and Bernard Perks
e) Title Number WT98027: this land is known as Claypits, and was first registered on 29 November 1990. The registered proprietor is the Applicant, Mrs Wheeler. Claypits is to the south of the Land
f) Title Number WT 203802. This land lies to the east of WT302571. It was first registered in the name of Wayne Clark on 23 August 2001, and was purchased by the Respondents at the same time as they purchased WT302571.
3. By an application made to Land Registry on 13 December 2013 the Applicant, Mrs Wheeler, applied to be registered as owner of the Land based on a claim to adverse possession made under the ‘new’ provisions set out in Schedule 6 to the Land Registration Act 2002, namely that she had been in possession of the Land for 10 years prior to the date of the application. This was the second application made by her: as I understand it, the first application, made on 16 April 2012, and based on her claim to documentary title to the Land, was cancelled by Land Registry following an inspection by a Land Registry surveyor in July 2012. The current application has been allocated provisional title number WT316653.
4. It was clear from the statement of truth in support of her current application, however, however that Mrs Wheeler maintained her claim based on title to the Land (and other land) by virtue of a conveyance dated 25th September 1986 and made between Henry Clark as vendor and John Leslie Wheeler (Mrs Wheeler’s husband) and herself (‘the Conveyance’). In the further alternative, Mrs Wheeler claimed adverse possession under paragraph 18 of Schedule 12 to the Act. This provides that where a registered estate is held in trust for person by virtue of section 75(1) of the Land Registration Act 1925 immediately before the coming into force of the Act (13 October 2003) he is entitled to be registered as proprietor of the estate. These transitional provisions, in short, mean that where adverse possession is acquired under the Limitation Act 1980 the squatter is entitled to be registered without more, and without having to meet the more stringent conditions of Schedule 6.
5. Following orders from the Tribunal requesting that the Applicant set out her case more clearly, AB Legal Assist, by letter dated 14 January 2014, confirmed that the Applicant was claiming that she was entitled to rectify the register by reason of the Conveyance and that, in any event, she was relying on 17 years of exclusive possession prior to October 2003.
6. The Respondents’ solicitors set out their clients’ position in a document headed ‘Respondents’ Position on New Issues identified in the Order dated 17 December 2014’. They adopted a pragmatic approach to the way in which the Applicant put her case and sensibly did not require her to issue fresh applications to the Land Registry. The Respondents’ case was that the land conveyed by the Conveyance does not include the Land, and that they put the Applicant to proof as to whether she had occupied the Land since 1986 as alleged. It is also the Respondents’ case that she has not been in occupation since they purchased the Land in 2012.
7. As originally framed the current application by Mrs Wheeler included land now registered with title number WT246841 in the name of Martin Whiting. This land, on Mrs Wheeler’s case, also formed part of the land conveyed to her and her (deceased husband) by the Conveyance. The application for this land was not proceeded with because Mr Whiting brought proceedings for possession against her in the County Court. I was told that those proceedings were concluded in Mrs Wheeler’s favour. The judge, I am told, found that the land in this title had been conveyed to her by the Conveyance. I have not, however, seen his judgment in this matter.
8. I had the benefit of a site view on 15 July 2015. At the hearing I heard evidence from the Applicant and the First Respondent.
9. For the reasons set out below I find that the Land was conveyed to Mr and Mrs Wheeler by the Conveyance. In the alternative, I am satisfied that title to the Land was extinguished by adverse possession by September 1998.
Description of the Land and relevant evidence
10. The Land is approximately ‘house’ shaped, with the apex to the north. There is a fence along the north east boundary leading to a tin barn, part of which is within the Land, and the remainder of which forms part of title number WT302571. The land is open on its eastern boundary (past the barn) and on its southern boundary. It is bounded on the west in part by structure in the adjoining property which is now used as a woodstore and garage, and is otherwise unfenced. Mrs Wheeler’s evidence is that the woodstore/garage was built by the current owners of No 28 Greenhill (Mr and Mrs Woodridge). The title plan for this title (which bears the date 1995) shows this structure. It is not shown on a photograph taken in 1980. The Land is open to the south, leading to other property owned by Mrs Wheeler.
11. In addition to the tin/corrugated barn on the Land, there is also an old kiln on the Land. These two buildings are in a very poor state of repair. The barn is locked with a padlock. I did not inspect the inside, partly because the door is blocked by a heavy bowser. It is not possible to gain access to the kiln. The land itself is uneven, poorly maintained, and laid to rough grass.
12. Henry Clark owned land known as Hill Farm, which included No 27 Greenhill and the land in title WT302571 as well as what is now Mr and Mrs Woodridge’s property. Nos 27 and 28 Greenhill are on a spur off the main road which loops back to the main road, forming a circle.
13. On 25th September 1986 Mr Clark made a statutory declaration to the effect that he had lived at 27 Greenhill for the previous 74 years, and had been in possession of the land to be sold to Mr and Mrs Wheeler since 1952. The land shown on the plan attached to this declaration is the same as the land shown on the Conveyance Plan. The Conveyance Plan is of poor quality: it is based on an enlarged ordnance survey plan. It is not possible to determine the date of the OS plan. I have seen the original Conveyance and the Plan, but this does not assist in any way.
14. It is common ground that the land marked ‘pink’ on the Conveyance Plan is not the Land. This was accepted by Mr Glastonbury at the outset of the hearing. The concession seems to me to be correct. The land shown pink on the Conveyance Plan appears to be part of the land opposite Number 28 Greenhill, owned by Mr and Mrs Woodridge. They are registered with title number WT100637. This was first registered in March 1991.
15. The southern part of this land is subject to certain restrictive covenants contained in a conveyance dated 19 June 1980 between Mr Henry Clark and the predecessors in title to Mr and Mrs Woodridge, Mr and Mrs Stephens. In short, this land (the ‘pink’ land on the Conveyance Plan) had already been sold by Mr Clark at the time of the Conveyance.
16. The parcels clause of the Conveyance provides as follows: ‘The Vendor as beneficial owner hereby conveys unto the Purchasers ALL THAT piece or part of land situate at Greenhill in the Parish of Lydiard Millicent Swindon in the County of Wilts Together with the stables and other outbuildings erected thereon All which said piece of land is for the purpose of identification only delineated on the plan annexed hereto and thereon edged round with pink together with the Right of Way at all times and for all purposes over such part of the Vendors adjoining land which is delineated on the said plan annexed hereto and thereon edged round with blue as is necessary to obtain access to and egress from the property.’
17. Mrs Wheeler gave evidence as to the purchase of the Land. I fully accept her evidence on this and other points; she was an honest and reliable witness. She recalls visiting the Land prior to the purchase with her husband, Mr Clark, and Mr Clark’s solicitor. Mr Clark was a distant relation by marriage. In 1983 he had sold her 3 acres of land, but without any stables. In 1986, at the time of the sale, he agreed that he would extend the tin barn, so that she could stable her horses there.
18. On the occasion of the visit with her husband and solicitor it was clear what land was being purchased. This was the Land, and the other parcel which formed part of Mr Whiting’s title and was the subject of the court proceedings mentioned above. The kiln was in better condition; the stone barn was much as it is now. The tin barn was extended westwards shortly after the purchase. This (western) part of the tin barn is divided from the existing structure by a bulkhead. Mrs Wheeler had no explanation as to why the Conveyance Plan was incorrect. She relied on her solicitors. Access to the Land was to the east, from land belonging to Mr Clark (and on her case this was the right of way referred to in the Conveyance as ‘the blue land’). What is now the Woodridge’s property was, at that time, a brickers yard.
19. On the blue land on the Conveyance Plan is a stone barn, which was there in 1986. This is on that part of the land purchased by Mr Whiting. The existence of this structure means that the blue land on the Conveyance plan could not be used, or could not sensibly be used, as a right of way. The right of way, as shown on the Plan, is effectively blocked by the stone barn.
20. In 1989 Mrs Wheerler installed an electricity meter on the wall of the stone barn. There is, she says, an underground cable which provides lighting to the tin barn. I have seen bills sent to Mrs Wheeler’s home address in respect of ‘Greenhill, Stable Block, opp 27 Greenhill, Wooton Bassett, Swindon’, and confirmation from Southern Electric that the meter was installed on 7 December 1989 and that electricity is still being consumed (as at December 2014)
21. On 29 November 1990 Mr and Mrs Wheeler purchased adjoining land to the south of the Land known as ‘Clapypits’. Stables were built on this land shortly afterwards, and the horses were moved from the tin barn to the new stables. These stables were built without planning permission. Retrospective permission was sought in August 1993. By letter dated 19 August 1993 North Wiltshire District Council indicated that they were minded to grant consent, but expressed disquiet about a number of other matters and suggested that storage and security needs could be met by utilising the other buildings owned by Mrs Wheeler on Greenhill Lane. I accept that this is a reference to the tin barn (and possibly the kiln) on the Land. Claypits land was registered with title number WT98027 (North Wiltshire became an area of compulsory first registration on 1 April 1990).
22. The electricity supply referred to above feeds the tin barn, and, in addition, the stables in Claypits. The average cost of this electricity is £162 per quarter. Mrs Wheeler denied that she ceased using the Land once she had built the new stables on Claypits. Her evidence is that she still used the access from Greenhill through the Land to get to the stables (as well as using a separate track running east from the stables to the main part of Greenhill Road) The tin barn continued to be used to store hay, delivered by lorries driving over the Land. Again, I accept this evidence.
23. The tin barn was used to store an old car and various old bits of farm and welding equipment which had belonged to her husband. In short, it is Mrs Wheeler’s case that she has been in uninterrupted occupation of the Land from the date of the Conveyance until the current dispute. She rode her horses regularly over the Land.
24. On 12 April 2012 a neighbour, Mr Meredith, showed her a plan of land being offered for sale by auction by Strakers of Devizes. It became immediately apparent to her that the land to be sold included the Land. Mrs Wheeler’s solicitors wrote to the auctioneers on 13 April 2012 enclosing a copy of the Conveyance. On the same day an application was made to Land Registry to rectify title WT246841. In due course this title was divided into two titles: WT246841 and WT302571.
25. Further investigations revealed that the land comprised in title WT246841 was registered in the name of Henry Clarke and his grandson, Wayne Clark, on 1 March 2006. The address given for Henry Clark is not 27 Greenhill, but care of his solicitors, Masters and Morrison. Henry Clark died in November 2008. Mrs Wheeler’s evidence was that Henry Clark was suffering from dementia in his later years. This was not verified, but certainly, by March 2006, Mr Clarke was no longer living at home and was very elderly.
26. I did not hear evidence from Wayne Clark, and I will give little or no weight to the statement he apparently made on 15 December 2014 when he stated that he was aware that the Land had been sold by his grandfather to Mr and Mrs Wheeler in 1986 and that the Land should not have been registered, as part of a larger title, in his and his grandfather’s name in 2006. Mrs Wheeler had threatened him with criminal proceedings. I note, though, too, that the Respondents did not call Wayne Clark, or any other member of the Clark family who might have been able to throw light on what happened.
27. On 23 February 2009 the land then comprised in title WT24681 was sold to OFJ Group Holdings Ltd. Following the sale by OFJ in April 2012, as I have said above, this title was split into two titles. The northern part, including the stone barn, and number 27 Greenhill, retained title number WT24681, and was registered in the name of Martin Whiting. The southern part (excluding one central piece, now owned Sue Letchford and Paul Perks) was given title WT302571, and was registered in the name of the Respondents.
28. The auctioneers passed on the claim made by Lemon and Co to the Respondents. The sale of title WT3012571 was, in the event, by private treaty, and the replies to the inquires before contract referred to a claim made to the north western part of the plot to be sold (ie the Land). The reply stated that the vendors could not verify the claim. The letter from Lemon & Co was passed on the Respondents. It was also provided that the Respondents would indemnify the vendors against any further claim or action arising out of the letter of 13 April 2012.
29. In 2012, when the Respondents purchased the Land, horses were no longer stabled in the tin barn (and had not been, since new stables were built at Claypits). But the tin barn was not completely empty: there was hay, and other farm equipment. Mrs Wheeler stated, and I accept, that on occasion she fixed the tin roof, when parts of it blew off. The electricity, as I have said, continued to be supplied to the tin barn.
30. I have seen a letter dated 2 June 2015 from Strakers to Mr Whiting stating that, on inspection of the land by them prior to the sale, there were no obvious boundaries or fences to indicate that the land was owned by any other party. Strakers provided further details saying that, on inspection, the land was an untidy mess with many broken fences and buildings in poor condition, and overgrown shrubs. Two photographs were produced. These, however, do not show the Land, but another part of title WT302571. Mrs Wheeler’s evidence is that there was a fence in 1986 (where it is now: on the north eastern boundary: this was removed by Mr Whiting, and then restored).
31. Mr Patnaik visited the Land, and the remainder of the land comprised in WT302571, on two occasions before he purchased it. He said that there was no fencing; that the land looked abandoned, and that he was able to enter the tin barn, where he saw an old abandoned wreck of a car and some abandoned tools. Mrs Wheeler’s evidence on this point is that the locks had been broken. He purchased the land with a view to building a house there, and has spent the last two years clearing and tidying the land within his title (mainly on the north eastern side). Planning permission, has, however been refused at first instance and on appeal. It is clear that there has been some animosity between the parties since it became apparent that Mrs Wheeler was making a claim to the Land.
Analysis
32. The following issues arise:
(a) What land was conveyed to Mr and Mrs Wheeler by the Conveyance?
(b) If the land conveyed included the Land, should title WT302571 should be rectified so as to remove the Land from that title?
(c) If the Conveyance did not include the Land, can Mrs Wheeler establish title by adverse possession?
The Conveyance
33. In this case the Conveyance described the property to be sold verbally and by reference to a plan. The plan is for identification purposes only. In such a case, the verbal description will prevail in the case of inconsistency. But the verbal description by itself, in this case, is of limited use: ‘ALL that piece or parcel of land situate at Greenhill…..together with the stables and other outbuildings erected thereon..’
34. The Land (together with the land to the north, purchased by Mr Whiting) in 1986, contained two buildings: a stone barn, as it has been described, and a kiln. Mrs Wheeler’s evidence is that building now Mr and Mrs Woodridge’s southern parcel of land (shown on the 1995 OS plan) was not there in 1986. Neither the two buildings on the Land, nor the building on Mr Woodridge’s land, appear on the Conveyance Plan.
35. A number of different plans have been used in relation to the sale of adjoining land. In 1991 Mr Clark sold the piece of land now owned by Ms Letchford and Mr Perks. The plan used for this transfer is the same as the Conveyance Plan. Confusingly, a right of way is granted over the same area shown coloured blue on the Conveyance Plan (that is to say, the land on which the stone barn sits). However it is important to note that the land shown on the title plan of WT137181 is not the land shown on the plan attached to the 1991 transfer. It seems that there was no difficulty, on the occasion of that registration, in identifying the land actually conveyed.
36. As I have said, the plan attached to the title of 28 Greenhill (based on a 1995 OS plan) shows the tin barn, the stone barn, the kiln, and the woodstore/garage on 28 Greenhill’s title. It is obvious, therefore, that the Conveyance Plan was inaccurate, at least to the extent that it did not show any of the structures on the Land or the adjoining land.
37. The construction of conveyances of land differs from that of ordinary contracts. The reason for this is clear. As Megarry J said in Neilson v Poole (1968) 20 P&CR 909 ‘The prime function of a conveyance is to convey. As to any particular parcel of land, either the conveyance conveys it or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed……Yet modern conveyances all are all too often indefinite or contradictory in their parcels. In such circumstances to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to be me to require justification by some convincing ground of judicial policy: I have heard none.’
38. Mr and Mrs Wheeler plainly purchased a parcel of land. The question is which parcel. Where, as here, neither the plan nor the parcel clause are clear, the court will adopt an objective test: having regard to all the surrounding circumstances, including the topography, what would the reasonable person think he was buying? ( Alan Wibberley Buildings Ltd v Insley [1999] 1 WLR 894 and Strachey v Ramage [2008] 2 P&CR 154). Even where there is no uncertainty as to the meaning of the words used or the colouring on the plan, there often are serious problems of applying these to what is on the ground. It is important to emphasise that the issue is not the parties’ subjective belief which is relevant but what, against the relevant objective background, they would reasonably have expected to understand.
39. The relevant circumstances can include evidence of subsequent conduct, so long as this is probative. The relevant authorities were reviewed in detail in Liaquat Ali v Robert Lane [2007] 1 EGLR 71. Also relevant are Piper v Wakeford [2008] EWCA Civ 1378 and Pennock v Hodgson [2010] EWCA Civ 873.
40. In the present case the following factors seem to me to be relevant in determining the land sold by the Conveyance. Firstly, it is clear that Mr Clark was in the habit of selling small parcels of land from had once been his farm using a variety of unsatisfactory plans. It is relevant, it seems to me, to note that the small parcel of land registered with title number WT137181 is not the same as the land shown on the plan attached to 1991 conveyance of that land: the plan used on that occasion is the same as the Conveyance Plan. Secondly, the land now in title WT100637 (Mr and Mrs Woodridge’s property) was sold by Henry Clark to Mr and Mrs Stephens in 1980. It could not therefore be sold again to Mr and Mrs Wheeler in 1986. Thirdly, the verbal description of the land sold by the Conveyance is more consistent with the description of the Land, in that the Land contained stables and other buildings, whereas the adjoining land did not. Fourthly, it makes no sense to grant a right of way over a parcel of land obstructed by a stone barn.
41. Fifthly, it is admissible, in my judgment, to have regard to the subsequent conduct of the parties. Mr and Mrs Wheeler took up occupation of the Land. Mr Clark extended the tin barn, as he had promised to do. There was no suggestion at any stage by either Mr Clark, or the owners of WT100637 that a mistake had been made, and that Mr and Mrs Wheeler were occupying the wrong parcel of land. Mr Clark continued to live at No 27 Greenhill until he left to go into a home in, I believe, 2006. Finally, the fact that the Land was registered in his name and that of his grandson is not determinative: with the passing of time, and the confusion over the plans and the various plots sold, it is easy to see how the Land could have been mistakenly incorporated in title WT246841 on first registration.
42. For all these reasons, it seems to me clear that the land sold by the Conveyance was the Land. This, therefore, is a case of double conveyancing: the Land, included in title WT302571, and purchased by the Respondents, had already been conveyed.
Rectification of the Register
43. It is a fundamental principle of registered conveyancing that it is registration which vests the legal estate in the registered proprietor. Section 58(1) provides as follows: If, on the entry of a person in the register as a proprietor of a legal estate, the legal estate would not otherwise have vested in him, it shall be deemed to be vested in him by reason of the registration.’ Section 29(1) is also relevant. This provides that: ‘’If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration’.
44. But a registered title (even an absolute title) is not indefeasible. The register of title can be altered either to bring it up to date or to correct a mistake: see section 65 and Schedule 4 to the Act.
45. Schedule 4 provides that an alteration which involves the correction of a mistake and which prejudicially affects the title of a registered proprietor is a rectification. This definition of alteration provides a link with the circumstances in which an indemnity becomes payable from Land Registry funds under Schedule 8. Alterations which cause no loss do not rank as ‘rectification.’
46. There is no definition of mistake. It is clear from authorities that a mistake can include a case where land is transferred which had already been sold. This is so even if the registered proprietor, as in this case, purchased the land from a previous registered proprietor, and even in circumstances where the new registered owner did not know, and could not possibly have known, of the original mistake. This point was explored – in the end inconclusively – in the Barclays Bank v Guy litigation (reported at first instance at [2008] EWHC 893). The issue was whether, if, as Mr Guy alleged, the transfer purportedly made by him was a forgery, it was open to him to seek to cancel the charge entered into by the transferor. The issue arose again in Knights Construction (Ltd) v Roberto Mac Ltd [2011] 2 EGLR 124. There the issue was whether the applicant was entitled to have the register rectified against an innocent purchaser who had bought from a vendor in whom the registered title was vested at the time. It was held that the 2002 Act conferred such jurisdiction on the court and the registrar.
47. The point was put to rest in a decision in the Court of Appeal in Gold Harp Properties v Maclead and others [2014] EWCA 1084 in which Roberto Mac was followed (the decision in Gold Harp turned on the construction of paragraph 8 of Schedule 4, but as Underhill LJ stated at paragraph 97, the same considerations apply to paragraphs 2 and 5).
48. Paragraph 6(2) of Schedule 4 draws a distinction between a proprietor of a registered estate who is in possession of that estate, and a proprietor who is not. Greater protection is afforded to a proprietor in possession. In such a case no rectification of the register can be made without his consent unless (a) he has by fraud or lack of proper care caused or substantially contributed to the mistake or (b) in would for any other reason be unjust for the alteration not to be made
49. Section 131 defines a proprietor in possession. For present purposes the relevant definition is found in section 131 (1) which reads: ‘For the purposes of this Act, land is in the possession of the proprietor of a registered estate if it is physically in his possession…’. The provisions are intended to protect the physical possession of the registered proprietor: there is therefore no scope for the presumption (which applied under the Land Registration Act 1925: see Kingsalton Ltd v Thames Water Developments Ltd [2001] 1 P&CR 184) that the registered proprietor was to be treated as or deemed to be in possession unless it could be shown that he had been dispossessed.
50. Section 131(1) section applies to Schedule 4. The relevant date is the date of the application to Land Registry: 13 December 2013. The test to be applied is the same as the general law as to the meaning of possession: see Paton v Todd [2012] EWHC 1248. Applying that test, it seems to me that it cannot be said that the Respondents were in physical possession of the Land in December 2013. The Land was not enclosed. On Mr Pattanaik’s evidence, he did not take possession of the tin barn. The kiln was not accessible. The Land was at the very least clearly available for use by others, including Mrs Wheeler. It was open land, roughly laid out, and badly maintained. Such clearing as was done by the Respondents was on the north eastern part of other land they purchased (registered with title number WT203802, and not even within title number WT302571), that is to say, not on the Land. Again, on the Respondents’ evidence, they only became aware of Mrs Wheeler’s claim in January 2014, after the date of the application (although, of course, they had received a copy of the letter from Lemon & Co dated 12 April 2012).
51. If the Respondents were in possession, the question would become whether they had by lack of proper care caused or substantially contributed to the mistake, or whether it would for any other reason be unjust for the alteration not to be made.
52. It is correct that the Respondents were put on notice of a claim to ownership of the Land, and indeed that a copy of the Conveyance had been made available to Strakers. Against that, the Conveyance Plan, in so far as it was of any help, appeared to show land other than the Land. It is also the case that the Respondents were purchasing land which had been first registered in 2006, and then sold to OFJ Group Holdings Ltd in 2009. In these circumstances, it seems to me, on balance, that it would be difficult to find that the Respondents caused or substantially contributed to the mistake (assuming ‘mistake’ in this context means the registration of the Land in their name).
53. However, if I had to decide the point, I would decide that it would be unjust, in all the circumstances of the case, not to make the alteration sought by Mrs Wheeler. The Land had been purchased by her in 1986 and had been used by her. It seems to me that, although, as explained below, there is a presumption in favour of rectification where the registered proprietor is not in possession, the factors to be taken into account in applying the test under paragraph 6(2)(b) will, in practice, be almost always the same.
54. But as I find that the Respondents were not in possession of the Land in December 2013 (or indeed at any time since then) the question is then a more limited one. Once it is found that a mistake has been made, paragraph 6(3) of Schedule 4 provides that the alteration must be made unless there are exceptional circumstances which justify its not doing so. The scope of this provision was considered in Paton v Todd.
55. The first question to be asked is whether there are exceptional circumstances in this case. If the answer is yes, the second question is whether these exceptional circumstances justify not making the alteration.
56. I do not consider that there are any exceptional circumstances in this case which justify not altering the register so as to register Mrs Wheeler as the owner of the Land. The Land forms part of title WT302571: the Respondents will remain registered with the remainder of the title. Their plans to develop the land within the title have not been successful: the inspector refused planning permission on appeal.
57. It may be (and this is not a matter for me, but for Land Registry) that they will be entitled to an indemnity for the loss of the Land under Schedule 8. If this is the case, the valuation of the Land will be made based on the value immediately before the rectification of the register (by contrast, if the title is not rectified, and Mrs Wheeler seeks an indemnity, the Land will be valued at the time when the mistake which caused the loss was made, that is to say when the Land was first registered in 2006).
58. The Applicant, as the owner to whom the Land had previously been conveyed has not abandoned the Land, but still makes some use of it (and continues to use it in the way she has done for many years). The tin barn is locked, and contains various items belonging to her. The electricity supply to the tin barn continues. There is, in short, nothing exceptional (in the sense of unusual, special or out of the ordinary) in this case to justify a departure from the presumption that the register should be rectified.
Adverse Possession
59. This is not, on a proper analysis, a claim under Schedule 6. Mrs Wheeler’s case is that she took up occupation of the Land in September 1986 and continued to use it exclusively. If she has a claim, therefore, it would be based on the Limitation Act, and the then owner’s title would have been barred in 1998. Such a claim only arises if I am wrong on my construction of the land sold by the Conveyance.
60. The test for adverse possession is well known. The squatter must show two elements: first a sufficient degree of physical custody and control (factual possession) and an intention to exercise such custody and control on his or her behalf and for his or her benefit.
61. The question of what constitutes factual possession depends, crucially, on the nature of the land and the manner in which land of that nature is commonly used or enjoyed. The squatter must, in essence, deal with the land in the way an occupying owner would be expected to deal with it, and no-one else has done so (see Powell v MacFarlane 38 P&CR 452).
62. In this case, I have no hesitation in finding that, if I am wrong on the construction of the Conveyance, Mr and Mrs Wheeler, and then Mrs Wheeler alone, were in possession of the Land with the necessary intention to possess. The Land was used initially to stable horses. When this use ceased, the tin barn continued to be used for the storage of farming equipment and for the storage of hay. Electricity was supplied to the tin barn from 1986 onwards. The Land itself was used to ride the horses. Although the Land was not fenced on every side, it was defined clearly by a fence on the eastern side, the kiln (and building on the adjoining land) on the western side, and by the land known as Claypits to the south. There is no evidence, and no suggestion that, anyone else ever made any use of the Land.
63. The nature of the Land is such that it could not easily be put to any other agricultural (or any) use. It is a rough piece of land on which there are two structures. From the time of the purchase of Claypits it was used in conjunction with that land.
64. The necessary intention to possess is clearly manifested by the belief that Mr and Mrs Wheeler had that they had purchased the Land in 1986, and by Mrs Wheeler’s conduct when it became apparent that the Land had been sold to the Respondents. In addition, as I have found, Mrs Wheeler treated the Land as her own from 1986 onwards.
Conclusion
65. In the light of my findings I will order the Chief Land Registrar to give effect to the application dated 13 December 2013 by rectifying title number WT302571 by removing the Land therefrom and registering it in the name of the Applicant under title number WT316653.
Costs
66. In principle, the Applicant, as the successful party is entitled to her costs. A schedule of costs is to be filed and served with the Tribunal and the Respondents by 18 August 2015. The jurisdiction of this Tribunal is limited to costs incurred since the matter was referred by Land Registry, that is to say since 15 July 2014. The Respondents may raise such objections or make such representations as they deem appropriate within 14 days of receipt of the schedule.
BY ORDER OF THE TRIBUNAL
DATED THIS 4TH DAY OF AUGUST 2015