England and Wales Land Registry Adjudicator

 

PROPERTY CHAMBER

FIRST-TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

 

IN the matter of a reference from hm land registry

 

LAND REGISTRATION ACT 2002

 

REF no 2014/0941

 

BETWEEN

JEREMY GRIFFIN

 

Applicant

and

 

 

CROWN MILL (1993) MANAGEMENT LIMITED

Respondent

 

 

Property Address: 22 Crown Mill, Vernon Street, Lincoln LN5

Title Number: LL104230

 

Before: Judge McAllister

Lincoln County Court

19 November 2015

 

Representation: Jonathan Price of Counsel instructed by Chattertons McKinnells appeared for the Applicant; Edward Webb of Counsel instructed by Adie Pepperdine Ltd appeared for the Respondent.

 

 

DECISION

 

Introduction

1. The Applicant, Mr Griffin, is the long leasehold owner of a flat known as 22 Crown Mill, Vernon Street, Lincoln ('the Property'). The Property occupies the fourth to eight floors of a converted mill and windmill ('Crown Mill'); the windmill said to be the second tallest in England, built in 1820. In total there are, I believe, 25 flats (one is a house) in Crown Mill. The fifth to eight floors of the Property are circular and reached by a spiral staircase.

 

2. The lease is dated 20 December 1993 and is for a term of 999 years from 1 January 1990 at a peppercorn rent ('the Lease'). The parties were the then freeholders, Foxby Court Management, the Respondent ('Crown Mill Management') (the management company) and Mr Griffin. Mr Griffin is a director and shareholder in Crown Mill Management. Mr Griffin was registered as proprietor on 4 March 1994. The addition of the eight floor was completed by 1995.

 

3. On 25 April 1995 Mr Griffin and the Crown Mill Management (who acquired the freehold on 30 January 1995) entered into a Deed of Variation ('the 1995 Deed'). The purpose of the 1995 Deed was to include, within the leasehold title, a room (shown on the plan attached to the Lease as a cleaning cupboard) which, as the Deed stated, had been omitted from the parcels clause of the Lease by mistake. The room was used as office/study but has for some time been used by Mr Griffin as an additional bedroom ('the Additional Bedroom').

 

4. The present dispute concerns a small area, measuring some 3 metres square, which connects the Additional Bedroom to the Property. By an application in Form AP1 dated 27 May 2014 Mr Griffin applied to alter the title of the Property by including this area (which has been referred to as the 'Bedroom Extension') within the title to the Property. The application was supported by a statutory declaration dated 12 May 2014.

 

5. In essence, Mr Griffin claimed to have acquired title by adverse possession to the Bedroom Extension based on 10 years possession. It is common ground that, if successful, the Bedroom Extension will form part of his leasehold title. Crown Management objected by letter dated 25 September 2014 on the grounds that Mr Griffin did not take possession of the Bedroom Extension until sometime between December 2006 and March 2007.

 

6. The matter was referred to the Tribunal on 16 December 2014. I had the benefit of a site visit on 18 November 2015. For the reasons set out below, I will order the Chief Land Registrar to give effect to Mr Griffin's application.

 

Preliminary matters

 

7. Before turning to the substance of the dispute, there are two matters I need to deal with. The first relates to the scope of the dispute between the parties. In his statutory declaration dated 12 May 2014, Mr Griffin identified three areas in dispute: a balcony circling the fourth floor, the observatory room (that is, the additional eight floor) and the Bedroom Extension. I was told by Counsel for Crown Management that there is no dispute, now, in relation to these other areas: it is accepted that these form part of the Property.

 

8. The second issue raises a procedural issue. The claim is made under the new regime relating to adverse possession, namely Schedule 6 to the Land Registration Act 2002 ('the Act'). Paragraph 1(1) provides as follows: '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.' Paragraph 2 requires the registrar to give notice of the application to the proprietor of the estate to which the application relates. Paragraph 3 enables the person to whom notice has been given to require that the application be dealt with under paragraph 5. This in turn requires the applicant to satisfy one of three conditions. Paragraph 4 states that if an application under paragraph 1 is not required to be dealt with, the applicant is entitled to be entered as the new proprietor of the estate (provided, of course, that he can prove that he was in adverse possession for 10 years prior to the date of the application).

 

9. Finally, paragraph 15 states that rules may make provision about the procedure to be followed pursuant to an application under Schedule 6. Rule 188 of the Land Registration Rules 2003 ('the Rules') provides that an application under paragraph 1 of Schedule 6 to the Act must be in form ADV1 and accompanied by a statutory declaration which in turn complies with various requirements. The notice in response by the person affected by the application must be in form NAP (Rule 190).

 

10. There is a purpose to these requirements. The appropriate notices allow the applicant (the squatter) and the respondent (the person with the paper title or a sufficient interest in the land) to make it clear to each other how their respective cases are put. In Form ADV1 the applicant is required to state which of the three conditions referred to above he intends to rely on, and form NAP allows the paper title owner to state whether or not he requires the applicant to satisfy one of those conditions.

 

11. This did not happen in the present case. Mr Griffin applied under a general form to change the register. Land Registry did not pick up this point, and the matter was referred to the Tribunal without comment. In consequence, Crown Management, did not in terms require him to satisfy one of the three conditions in paragraph 5 of Schedule 6. This led to the situation where Counsel for Mr Griffin and Counsel for Crown Management both submitted, at the outset of the hearing, that I should strike out the other's case: Mr Griffin for not having used the correct form at the outset, and Crown Management for failing to require Mr Griffin to satisfy one of the three conditions. This is consistent with the decision in Hopkins v Beacon [2011] EWHC 2899 (Ch).

 

12. After discussion and with the consent of Counsel, I dealt with both applications on the basis that each side was fully aware, of the other side's arguments: Mr Griffin relies on paragraphs 1(1) and 5(4) of Schedule 6 to the Act; Crown Management deny that he has been in adverse possession for the requisite time, or that he fulfils the terms of paragraph 5(4). The paragraph 5(4) point was raised in Mr Griffin's Statement of Case; Crown Management's Statement of Case denies that Mr Griffin can rely on this provision. In the circumstances, and in view of the fact that neither side is prejudiced by dealing with this matter as if both parties had served the correct forms, I will deal with the case as if both sides had used those forms.

 

13. Paragraph 5(4) provides as follows:

The third condition is that-

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

(b)     the exact line of the boundary between the two has not been determined under rules under section 90,

(c)     for at least 10 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.

14. The point in dispute between the parties (leaving aside the issue of whether Mr Griffin can establish adverse possession for ten years) is whether Mr Griffin reasonably believed that the Bedroom Extension belonged to him for at least ten years of the period of adverse possession ending on 27 May 2014.

 

15. Before turning to the evidence in this matter, I should also add that it was at one time suggested on Mr Griffin's behalf that, in the alternative, he was entitled to alter the terms of the Lease on the grounds that it was the common continuing intention of the parties that the Bedroom Extension should have been included in the demise. This point was not, however, pursued.

 

Background and evidence

 

16. The redevelopment of Crown Mill began in 1993, when Foxby Court Development purchased it from a company which had gone into administration. The company was the vehicle for a Victor Tapp, who knew Mr Griffin. Mr Griffin was one of the first leaseholders. When he first took possession of the Property it was a shell. He is an electrician by trade and was involved in the renovation works, either carrying them out himself or overseeing the work of others.

 

17. The lay out of the Property is unusual. The main access to the fourth floor is from a door from the communal parts, leading to a kitchen, and from there to a central area used as a dining room. The circular tower (the windmill) of the Property, which gets narrower towards the top, is reached from the central area. To the left of the central area (if one is facing the tower) is another part of the accommodation, now used as a bedroom and bathroom. From here, through the Bedroom Extension, is the Additional Bedroom. There is no other access to the Additional Bedroom. A door leads from the Bedroom Extension back onto the common parts, and to secondary stairs leading down to the ground floor. The Bedroom Extension is in reality no more than a corridor, linking two parts of the Property, and leading to the secondary staircase. It is certainly not capable of being described (as it has been at times) as yet another bedroom.

 

18. The door leading to the staircase is a fire door. There is an issue, which I shall return to below, as to whether it has ever been possible to open this door from the outside. Mr Griffin's case is that it has not ever been possible to do so, and that the fire door was for the occupiers of the Property alone. There is no doubt that it is not, now, possible to enter the Bedroom Extension through the fire door from the outside.

 

19. It is Mr Griffin's case that he took occupation of the Additional Bedroom, and the Bedroom Extension, in the autumn of 1993, with the consent of the developers. Work to create the eight floor began at about the same time or a little later. The Lease prohibits structural alterations or additions to the Property without the consent in writing of the lessor. The works continued until 1995, when Mr Griffin took up occupation of the Property. The Building Regulation Certificate of Completion is dated 15 March 1995. During the works to renovate the Property, the secondary staircase and the fire door were used as a convenient means of access to the Property (this staircase, unlike the main one, is not carpeted).

 

20. The City of Lincoln Council wrote a letter to Mr Griffin on 20 September 2013 in which they stated that the lobby separating the bedroom from the secondary staircase (ie the Bedroom Extension) forms part of the Property. The letter continues: 'The lobby provides access to this secondary staircase for means of escape purposes only was required at the time of the Building Regulation approval because of the internal configuration of the flat. It is evident form the approved plan that the secondary means of escape was solely for the residents of Flat 22 to use in the event of an emergency and no time was it ever considered to be a communal area of the building'.

It is clear from correspondence in 1991 between the County Fire Brigade and the developer's surveyor that the Fire Brigade were insisting on a secondary means of escape from fire. That secondary means of escape is through the Bedroom Extension.

 

21. I heard evidence from Mr Tasker, the City of Lincoln Council Building Control Leader. He was one of the officers who oversaw the redevelopment of Crown Mill between 1990 and 1995. Mr Tasker confirmed, that so far as the Council was concerned, the Bedroom Extension (or 'lobby' as he described it) was never intended to be a communal space for the residents of Crown Mill, but was always part of the Property. This area serves as a defence against smoke entering the common staircase should there be a fire in the Property. The additional floor within the circular tower of the Property made this necessary. The March 1995 Building Regulation Certificate would not have been issued unless the fire door had been fitted with an easily openable device (the panic bar): he would have checked the bar before issuing the certificate.

 

22. The plan ('the Plan') attached to the Lease, by reference to which the Property is demised, is, as is often the case in developments, the development plan, which provides a wealth of detail as to the structure of the building, cables, fire alarms etc. The Plan shows the door to the cleaning cupboard (as it then was) opening inwards from the communal area, the fire door opening inwards into a small space (now the Bedroom Extension), and a door from there opening into the Bedroom Extension from the main part of the Property. The fire door has always, in fact, opened outwards. Mr Griffin's evidence is that a door knob or handle was on the outside of the fire door until 1997, but the door was locked and could only be opened by using the panic bar (as it has been described) which was on the inside. This was a Yale push bar device, identical to all the ones used on various fire doors throughout the building. If it had been possible to open the fire door from the outside, the Property would have been vulnerable to intruders, since the door between the main part of the Property and the Bedroom Extension was simply an internal door without a lock.

 

23. Mr Griffin's evidence, and that of his former partner, Ellen Chenery, relating to the conversion and use of the Additional Bedroom and Bedroom Extension is as follows. As I have said, the Additional Bedroom was first used as a study, then as a bedroom. It was re-wired in 1995, and a velux put in. The Bedroom Extension was first used as a drying area, then as a small study.

 

24. In about 2001/2002 and in order to incorporate the Additional Bedroom into the Property, Mr Griffin closed off the door to that room from the common parts, and removed the partition wall between the Additional Bedroom and the Bedroom Extension. In 2003 his ex partner came to live with him, and his stepdaughter, Emily, then 4, used the Additional Bedroom, and did so for some two and a half years. This was clearly sensible, as it meant that she was sleeping close to the main bedroom: the other bedroom was in the tower and only accessible via a steep spiral staircase. The room was repainted when Emily moved in. Ms Chenery stated that she would never have allowed Emily to sleep in the Additional Bedroom if the fire door could have been opened from the outside. In 2007 Mr Griffin and Ms Chenery's son Louis was born. The Additional Bedroom became his bedroom.

 

25. Mr Griffin's evidence is that he always believed that both the Additional Bedroom and the Bedroom Extension were intended to be part of the demised premises, and had been omitted in error. The error was put right in relation to the Additional Bedroom by the 1995 Deed: it is his case that a further mistake was made on that occasion by omitting the Bedroom Extension.

 

26. Crown Management dispute the evidence relating to the fire door: it is their case that the earliest date on which the outside handle was removed was after 6 September 2006 and before 8 March 2007. These dates are given with such precision because they are taken from the fire servicing certificate prepared by Honeywell. These forms were at relevant times compiled by the engineer, Nicholas Ward. Mr Ward did not give evidence before me: I was told he was no longer willing to attend the hearing.

 

27. The servicing certificate dated 8 March 2007 notes ' Flat on 4 ^th floor has been extended and possibly now contains one of the communal smoke detectors, no access to the flat to check, if this is true device needs removing and relocating.' Mr Griffin's evidence is that this is simply wrong. There is no smoke detector in the Bedroom Extension. Smoke detectors are marked DS on the Plan, and there is one in the Additional Bedroom, but not in the Bedroom Extension, though this has a fire alarm. The Plan in any event, according to Mr Griffin is not entirely accurate; for instance there is a bell in the dining area which is not shown on the Plan. As I have said above, the Plan also shows the fire door opening inwards: in fact it has always opened outwards. Moreover, as Mr Griffin pointed out, the certificates from March 2006 to March 2008 are curious in that the number of detectors/sensors is variously given as 25, 30, 40, 45, 50 and 75. The number has remained the same throughout the years: so far as Mr Griffin is aware there are and have always been 45 smoke detectors. The certificates also indicate that there were no false alarms in this period: it is common ground that there were a number of such alarms. Mr Griffin repeated that Mr Ward had never been in the Bedroom Extension: he could only think that Mr Ward had confused the third and fourth floors.

 

28. I heard evidence from Mr Strickson, who has been responsible for cleaning the communal areas of Crown Mill for about 20 years. He worked there 5 days a week for the first 12 years of his employment, and since than has been there at least once a week. In all the time he has worked there he has never had access to the Bedroom Extension, and the fire door has always been shut: it cannot be opened, he said, from the outside. His instructions were to clean the communal parts, and the Bedroom Extension was not part of the communal area.

 

29. I have also seen correspondence from Hodgson Elkington, who are Crown Management's managing agents, and correspondence between the parties' solicitors. It is clear from this that there have been a number of issues between Mr Griffin and the other members of Crown Mill management relating, variously, to the cost of repairing the tower, alleged subletting, and inconsiderate parking. It is interesting to note that in a letter dated 5 December 2013 from the managing agents, the writer states that ' it was quite clear that the section of landing on the 4 ^th floor of the property was omitted from Mr Griffin's original title'. The suggestion is then made that that this should be conveyed to him, on the basis that he make a donation towards the costs of repairing the tower.

 

30. On behalf of Crown Management I heard evidence from Mark Abdul, and Joanna Shaw, both directors of the company. Mr Abdul has been a director since 1999. In his witness statement he referred to an incident which occurred in 2007 when the fire alarm in the building had been activated. After the residents had been evacuated he checked the fire alarm panel to see which detector had been activated. This was, he says, in the Bedroom Extension. When he reached the fourth floor he found that the door was locked. This was the first time he had been unable to gain access to the Bedroom Extension. In the course of his oral evidence he gave, for the first time, detailed evidence of what he says he saw when he entered the Bedroom Extension on previous occasions: he had never seen a bedroom, and there was always a wall on the right hand side as he went in (the partition wall which Mr Griffin said he demolished in 2001/2002). There was another door, he said, to Mr Griffin's flat.

 

31. Ms Shaw has only lived in the building since 2006, and, with no disrespect to her, I found her evidence of little assistance on the issue I have to decide. For the avoidance of doubt, I give no weight to the witness whose statements I have seen but who did not attend (Mr Hicks, a former employee of the managing agents, Mr Ward and Mr Tapp).

 

Conclusions on the evidence

 

32. I accept the evidence given by Mr Griffin in relation to the use and incorporation of the Additional Bedroom into the Property, and as to his use of the Bedroom Extension. I also accept the evidence that the fire door was not intended to be, nor was, opened from the outside. I say this for the following reasons.

 

33. First, it is accepted that the Additional Bedroom should have formed part of the demise. Once this is accepted, it makes sense that some means of incorporating this room into the Property should be found: the obvious way was by linking the Bedroom to the Property through the Bedroom Extension. There was no other way. Crown Management do not, in fact, dispute that this occurred: the issue, so far as they are concerned, is whether this occurred in 2006/7 or earlier, as Mr Griffin claims.

 

34. Secondly, I accept the evidence of Mr Griffin and his ex partner as to date when the partition wall came down. The evidence relating to the use of the Additional Bedroom by Mr Griffin's step daughter is both believable and understandable: this bedroom was the obvious room for her to use. The evidence putting this at a later date was given by Mr Abdul. I have no doubt that he was doing his best to recall events which took place some considerable time ago, but I do not accept that his recollection as to gaining access to the Bedroom Extension before 2007 is accurate. There is no particular reason why he should have remembered those events, nor why he should be clear as the date when, on his evidence, he was not able to gain access to the Bedroom Extension.

 

35. Thirdly, and in any event, it seems to me clear, from the evidence of the Council and Mr Strickland, that the Bedroom Extension was never part of the communal area. It is significant, if not in itself conclusive, that the fire authority insisted on a secondary means of escape, with a panic bar, and that this was the Bedroom Extension. So far as the Council was concerned this area was not a common space. Moreover, it is difficult to see why it would have been a common space or what purpose such a space would have served. The smoke detector was not in that area, although an alarm bell was. The Building Regulation certificate would not have been granted unless this means of escape had been created. Again, as Ms Chenery stated, and I accept, she would not have allowed her daughter to sleep in a room which could be entered from the common parts.

 

36. I do not place any weight on the form filled in by Mr Ward: he did not attend to be cross examined, and there so many inconsistencies in the various reports that it is hard to give any credence to the comments relating to access to the fourth floor. The evidence of Mr Strickland, who knows the building intimately, is far more persuasive. I found him to be an honest and careful witness.

 

Schedule 6 to the 2002 Act

 

37. As set out above, Mr Griffin relies on paragraph 5(4) of Schedule 6. This, in turn, requires that four conditions be passed. There is no issue as to three: the Bedroom Extension is adjacent to the Property, there has been no determined boundary under section 60 of the Act, and the Property has been registered for a number of years. The issue is whether Mr Griffin's belief that the Bedroom Extension belonged to him is reasonable.

 

38. This point has been considered in a number of cases, in this jurisdiction, and, in Zarb v Parry [2011] EWCA Civ 1306, in the Court of Appeal. I was referred in particular to a decision of Deputy Adjudicator Rhys (as he then was) in Lory v Harpserve Limited (Ref 2008/1530). Mr Rhys held that the use of the word 'reasonable' requires the court or tribunal to look at the matter objectively. The test is not a subjective one. This seems to be me to be plainly right.

 

39. There is some doubt as to whether the belief must persist up to the date of the application. In Zarb v Parry it was assumed that this is the case. A contrary view is expressed in a decision of Mr Mark sitting as a Deputy Adjudicator in Davies v John Wood Property plc (Ref 2008/0528). This is also the view of the Law Commission in their report, Land Registration for the Twenty First Century: a Conveyancing Revolution.

 

40. In any event, even if the belief needs to be reasonably held up to the date of application, I am satisfied that Mr Griffin held this belief. I accept that he always considered the Bedroom Extension to be part of the Property, not least, as I have said, because of the need for a secure fire lobby which could provide a means of escape (not ingress) in the event of fire. The fact that the 1995 Deed was entered into seems to me to strengthen, rather than weaken, this belief. The then freeholder clearly intended the Additional Bedroom to be part of the Property: it makes little sense to include a room as part of the demise which could only be accessed from the common parts, when it could easily be incorporated into the Property. As I have said, the layout of the Property is complex, and the work to create a habitable space protracted and far from straightforward. The conversion of the building as a whole was also complex. The question whether the Bedroom Extension was part of the Property was no doubt one very small element in the overall picture.

 

41. Crown Mill raised the issue of whether he had been using the Bedroom Extension before 2007: the question of whether or not Mr Griffin's belief was reasonably held only came into play after he issued his application. Indeed, the correspondence from the managing agents assumes that the common parts of the building did not include the Bedroom Extension. In short, Mr Griffin was not challenged as to his belief until after the date of the application, and, as I have said, his belief that the Bedroom Extension was his was a reasonable one to hold.

 

 

 

 

Costs

 

42. As the successful party, Mr Griffin is, in principle, entitled to his costs. A schedule in Form N260 or the like is to be filed and served by 11 January 2016. Crown Mill may then respond by 26 January.

 

BY ORDER OF THE TRIBUNAL

 

 

Dated this 22 ^nd day of December 2015