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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Hammer v Blue Suede Ltd (Miscellaneous cases : Miscellaneous) [2016] EWLandRA 2015_0357 (20 May 2016)
URL: http://www.bailii.org/ew/cases/EWLandRA/2016/2015_0357.html
Cite as: [2016] EWLandRA 2015_0357, [2016] EWLandRA 2015_357
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REF/2015/0357
PROPERTY CHAMBER, LAND REGISTRATION DIVISION
FIRST-TIER TRIBUNAL
IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
BETWEEN
GRAHAM WILLIAM HAMMER
APPLICANT
and
BLUE SUEDE LIMITED
RESPONDENT
Property Address: Land at Derby Street/Church Street, Preston
Title Number: LAN160128
Before: Judge Michell
Sitting at: Preston Magistrates Court
On: 22nd and 23rd March 2016
Applicant Representation: Mr Ian Foster, counsel, instructed by Napthens solicitors
Respondent Representation: Mr Benjamin Faulkner, counsel, instructed by Harrison Drury solicitors
___________________________________________________________________________
DECISION
___________________________________________________________________________
ALTERATION OF REGISTER –ALTERATION OF TITLE PLAN – GENERAL BOUNDARY- WHETHER TITLE PLAN TO BE ALTERED TO SHOW GENERAL BOUNDARY MORE ACCURATELY-WHETHER CAR-PARKING SPACE FORMING PART OF LAND WITHIN APPLICANT’S TITLE
Cases referred to
Powell v McFarlane (1977) 38 P&CR 452
Prudential Assurance Co. Ltd. v. Waterloo Real Estate Inc. [1999] 2 EGLR 85
JA Pye (Oxford) Ltd v. Graham [2002] UKHL 30
Derbyshire County Council v. Fallon [2007] 3 EGLR 49
Drake v Fripp [2012] 1 P&CR 69
1. Mr Hammer has applied to HM Land Registry to alter the register by altering the title plans to title numbers LA133933 and LA846126 to show as included within the general boundary of LA133933 an area of land used as car parking spaces and to exclude the same from LA846126. LA133933 is the title to land called 49-50 Church Street, Preston but comprising 48, 49 and 50 Church Street. LA846126 is the title to land described as being 17, 18, 19 and 20 Derby Street, 46, 47 and 47a Church Street and land and buildings at the back of 14 to 19 Derby Street. Blue Suede Limited is the registered proprietor of LA846126. It has objected to the application. The matter was referred to the Tribunal for determination.
2. I visited the site accompanied by the parties and their representatives on the afternoon before the first day of the hearing and again at the conclusion of the hearing. Derby Street runs approximately northwards off Church Street. The land in issue lies to the north of Church Street and east of Derby Street. 46 Church Street is on the east side of the junction of Church Street and Derby Street and 47 to 50 run eastwards from 46. 47 to 50 Church Street is a parade of shops. 46 was formerly an hotel called The York Hotel. The land in dispute forms part of an area of yard called York Yard, which is at the rear of the buildings on Church Street. York Yard is accessed from Derby Street. The gate into York Yard lies immediately to the north of the run of buildings comprising 46 Church Street and 20 and 19 Derby Street. The land in dispute adjoins the rear walls of 48, 49 and 50 Church Street. York Yard is subject to a right of way for the benefit of 48, 49 and 50 Church Street to and from Derby Street. A long narrow building stands in York Yard along its eastern side. It was built in the late twentieth century partly on the site of an earlier building, which was destroyed by fire. However, it was not built on exactly the same footprint and so cannot easily be used as a point of reference when looking at conveyance plans.
3. Title Number LA133933 was first registered on 13th December 1967. Title Number LA846126 was first registered on 26th July 1999. The Ordnance Survey plan on which the filed plans for both titles is drawn shows three attached buildings running along Derby Street from the junction with Church Street: running northwards they are marked as being 46 Church Street, 20 Derby Street and 19 Derby Street. The northern boundary of LA133933 on the filed plan for that title is drawn in the same place (save for a small area at the western end) as the southern boundary of LA846126 is drawn on the filed plan for that title. The boundary is shown on both filed plans as being along a line which is a continuation of the line shown as the division between 20 Derby Street and 19 Derby Street. The only difference is that on the filed plan for LA133933 the western and northern boundaries are not shown as meeting at 90 degrees. A small rectangle of land in this corner is shown as not being included within the title. That rectangle of land was occupied by a small building housing a water closet.
4. Mr Hammer claims that there is an area of land to which he can show a pre-registration paper title but which lies outside the line drawn on the filed plan as the general boundary of title LA133933. The area is an area lying to the north of the line shown as the northern boundary and extending as far as a straightline continuation of the line shown on the plan as the northern wall of 19 Derby Street. There was some discussion at the start of the hearing as to the westerly extent of the land claimed by Mr Hammer. Mr Hammer’s case at the hearing was that his land extended on the west side to a line drawn north from the southwest corner of the site of the water closet building.
5. Counsel for Blue Suede Ltd submitted that the location of the boundary between Mr Hammer’s land and the land now owned by Blue Suede Ltd was determined in proceedings in the High Court during the 1970s. Mr Peter Maddock, who manages the land on behalf of Blue Suede Ltd. and is the son of the former owner, John Henry Maddock, gave evidence that there were two cases concerning the yard in the 1970s. He said that the first case concerned rights to park in the yard and he thought the result of the case was what he referred to as a “judgment of Solomon”. In his witness statement, he said that the result was that the court declared that the land immediately behind 48-50 Church Street “belonged to” Mr Hammer’s father and that the land behind 47-47a Church Street “belonged to” his father. In a letter he wrote to Mr Hammer dated 9th May 2007, Mr Peter Maddock said that there was a court case 30 years before regarding the right of way of Nos 48, 49 and 50 and that the judgment of the court gave the owner of 48,49 and 50 the right of way across the yard from the entrance in Derby Street to park outside the rear of 48, 49 and 50. The letter and witness statement taken together would suggest that Mr Maddock thought there was land behind 48 to 50 Church Street forming part of 48 to 50 Church Street on which it was possible to park, that the court had declared that his land was part of 48 to 50 Church Street and that there was a right of way over York Yard to get access to and egress from this land. However, in cross-examination, Mr Maddock said that the first case was about “parking rights”, suggesting that the land behind 48 to 50 did not form part of those properties but was subject to an easement of parking in favour of the owners for the time being of 48 to 50 Church Street. Mr Peter Maddock said that the second case concerned ownership of a water closet and damage to his father’s car.
6. The only document produced in evidence relating to a case concerning the yard was a copy of an order made in the Chancery Division of the High Court by the Vice-Chancellor of the County Palatine, His Honour Judge Blackett-Ord on 25th October 1978. The parties to the proceedings in which the order was made were John Henry Maddock as plaintiff and William Albert Hammer and John Clarence Hammer as defendants. The Order contains a declaration that John Henry Maddock was entitled to be registered as proprietor of the water closet shown marked on the plan annexed to the writ and directed that the register of title number LA133933 be rectified by registering John Maddock as proprietor of the water closet in place of the Hammers. It is important to note that title to York Yard was not registered at the date of this order. There is no evidence that John Maddock was registered as owner of the water closet following the making of the order but the title plan to LA133933 (48 to 50 Church Street) was altered to show the general boundary as not including the area occupied by the water closet.
7. Counsel for Blue Suede Ltd. submitted that the ownership of the land in issue in the current proceedings must have been considered in the proceedings in the High Court and that either the court determined that there was no need to alter the register to include that land in the title to the Hammer’s land or the Hammers were aware that the land was outside the boundary shown on their title plan and chose not to make a claim to it in those proceedings. In the absence of a copy of the judgment of the Vice-Chancellor in the proceedings or of the pleadings or of any other document to show what was and was not in issue in those proceedings, I cannot conclude that the land in issue in these proceedings was in issue in the proceedings concluded by the order made in 1978 or that those proceedings prevent Mr Hammer from advancing the case that he does in the proceedings before me.
8. It is necessary for me to determine whether Mr Hammer can show a pre-registration title to the disputed land. If he cannot then he cannot show either that the disputed land is within his registered title or that the title should be altered to include that land. A detailed consideration of the pre-registration conveyancing documents is necessary.
9. Both the land owned by the Applicant and the land owned by the Respondent was conveyed to Richard Bibby by a conveyance dated 29th January 1857. The land conveyed was described as follows
“All that plot of land situate on the north side of and fronting to Church Street in Preston aforesaid parts of the west and North sides thereof forming parts of certain streets called Derby Street and Lord’s Walk containing in the whole (including in such part as form part of the said streets) 2400 ¾ superficial square yards or thereabouts) together with all that messuage or dwellinghouse then used as an Inn or Public House and Stable Brewhouse and other buildings in the occupation of the said Richard Bibby and Also all those 4 several shops and dwellinghouses erected and built on the said plot of land and fronting to Church Street and in or late in the possession of Messrs Blackburn Thomas Cork Roger Grimshaw and John Clarkson.”
10. By an Indenture dated 3rd July 1897 Richard Bibby conveyed to John Hayhurst and Thomas Houghton part of the land now registered under title number LA1846126. The land conveyed was described in the parcels clause of the deed as being a plot of land containing 837 superficial square yards with the hotel and other buildings known as the “York Hotel” erected thereon. The land conveyed was further described as follows
“All that plot piece or parcel of land situate on the north side of Church Street and on the east side of Derby Street … and containing in the whole eight hundred and thirty seven superficial square yards of land or thereabouts Together with all that messuage or dwellinghouse now used as an Inn Public House or Hotel and Stable Brewhouse and other buildings now known as the York Hotel and Brewery in the occupation of James Edward Bonney as tenant All which said premises are more particularly delineated and described on the map or plan drawn hereon and surrounded by a red line”
The conveyance reserved a right of way over the yard
“to and from the shops and premises numbered 47, 48, 49 and 50 Church Street … to and from Derby Street”.
Following the words of reservation of the right of way there then appear in the Indenture the following words imposing a restrictive covenant on the land conveyed,
“no wall to be built between the said yard and the said shops and premises numbered 47, 48, 49 and 50 Church Street but the said yard to remain open as at present so as not to obstruct the exercise of such right of way in as free and convenient a manner as at present enjoyed”
11. The plan drawn on the Indenture shows the land conveyed as including a run of buildings comprising 46 Church Street and what is now 20 Derby Street and 19 Derby Street. This runs north up from Church Street along Derby Street. At the north end, attached to the kitchen of the public house, in the position of what is now 19 Derby Street, is a building described on the plan as“BREW HOUSE”. The entrance into the yard is shown as being immediately to the north of the brew house. The eastern boundary is shown as running in a line parallel to but a short distance from the east wall of the brew house until a point to the east of the north-east corner of the brew house, where the boundary turns approximately 90 degrees to run east to the north of 47, 48, 49 and 50 Church Street. The red line where it shows the east boundary of the land conveyed parallel with the wall of the brew house follows a solid line on the underlying plan. When the red line shows the southern boundary of the yard to the east of the brew house, it runs along a pecked line. To the south of the pecked line there is a solid line, which is a continuation of the line drawn to show the wall between the brew house and the adjoining kitchen to the south.. That line is in the position of the dividing wall between what is now known as 20 Derby Street and 19 Derby Street. The pecked line and the solid line to the south of it are joined at their east end by a sold line. On the area demarked by the pecked line to the north and the solid lines on the other three sides, is written the words “yards of Nos. 47, 48, 49 and 50 Church Street”. The solid line and pecked line meet at the point where is drawn the south west corner of a building, the building being described on the plan as “stables with vaults – stables under”.
12. Following the conveyance made by the Indenture of 3rd July 1897, Richard Bibby remained the owner of 47, 48, 49 and 50 Church Street, including the area shown on the plan to that deed and marked “yards of No.s 47, 48, 49 and 50 Church Street”.
13. By an Indenture dated 28th August 1897 Richard Bibby conveyed to his daughters, Jane and Alice Bibby,
“All those three (formerly four) messuages or dwellinghouses and shops with the outbuildings thereto belonging and the land forming the site thereof and appurtenant thereto situate and being on the north side of Church Street … and bounded on the northerly and westerly sides thereof by the hereditaments conveyed” [ to Hayhurst and Houghton by the Indenture dated 3rd July 1897] “which respective messuages or dwellinghouses and shops are numbered respectively 47 48 49 and 50 in Church Street … Together with a right of way at all times and for all tenantly purposes …over and along and across the yard of the York Hotel … Together also with the pantry and passage (formerly part of the kitchen) on the westerly side of the said messuage or dwellinghouses and shop numbered 47 Church Street and the cellar and land beneath the said passage and the space above the said passage and beneath the floor of the staircase which extends over the said passage as the same pantry passage and cellar are occupied as part of the last mentioned messuage or dwellinghouse and shop by the said T Stevenson But excepting out of the conveyance the staircase over the such pantry and passage and the buildings over such staircase and the cellar and land under such pantry as the same are occupied by the tenant or occupier of the said hotel”.
No copy of this Indenture was in evidence but a copy of an abstract made in April 1920 and marked as inspected by a solicitor was in evidence. I accept the abstract as reliable evidence of the contents of the abstracted Indenture. The important words in the passage set out above are “bounded on the northerly … side thereof by the hereditaments conveyed” by the Indenture of 3rd July 1897. Those words indicate that the northern boundary of the land conveyed was the southern boundary of the land conveyed by the Indenture of 3rd July 1897. The land described on the plan to the Indenture of 3rd July 1897 as “yards of Nos. 47, 48, 49 and 50 Church Street” were conveyed by the deed of 28th August 1897 to Jane and Alice Bibby.
14. Jane Bibby died prior to 30th April 1920 and was survived by her sister, Alice. By a conveyance dated 30th April 1920 Alice Bibby conveyed 47 Church Street to Henry Hall. The property conveyed was described in the parcels clause as “all that messuage or dwellinghouse and shop numbered 47 Church Street … now in the occupation of the purchaser”. It was conveyed together with the benefit of a right of way
“over and along and across the yard of the York Hotel adjoining the hereditaments hereby conveyed to and from the said messuage or dwellinghouse and shop and to and from Derby Street”.
The habendum in the deed provided that the purchaser was to hold the land conveyed “with the appurtenances” to the use of the purchaser.
15. Henry Hall conveyed 47 Church Street to John Holderness by a conveyance dated 4th June 1921. John Holderness conveyed 47 Church Street to Richard Marsden and Son Ltd by a conveyance dated 6th June 1924. Richard Marsden and Son Ltd. conveyed 47 Church Street to Marsden (Wholesale) Ltd by a conveyance dated 19th April 1924.
16. By a conveyance dated 18th November 1920 Alice Bibby conveyed to Anne Lamb “All that messuage or dwellinghouse and shop numbered 50 Church Street …now in the occupation of the purchaser Together with the land forming the site thereof and appurtenant thereto”. Number 50 was conveyed
“Together with a right of way …over and along and across the yard of the York Hotel to and from the said messuage or dwellinghouse and shop to and from Derby Street”.
17. Anne Lamb conveyed 50 Church Street
“together with the land upon which the same is erected and built and belonging and appurtenant thereto”
and together with the right of way over the yard of the York Hotel to Alfred Johnson by a conveyance dated 10th June 1922.
18. Alice Bibby and John Dallas were appointed trustees of land including 48 and 49 Church Street on 29th April 1926. By a conveyance dated 30th April 1925 Alice Bibby and John Dallas conveyed to Alfred Johnson
“All those two messuages or dwellinghouses and shops now occupied as one messuage or dwellinghouse and shop situate and numbered 48 and 49 Church Street … and now or lately in the occupation of Jacksons Stores Limited Together with the land forming the site thereof and belonging or appurtenant thereto”.
The land was conveyed together with the benefit of a right of way
“over and along and across the yard of the York Hotel … to and from the said messuages or dwellinghouses and shops to and from Derby Street”.
19. By a conveyance dated 30th October 1950 Alfred Johnson conveyed
“all those three messuages or dwellinghouses and shops situate and Numbered 48, 49 and 50 in Church Street Together with the land forming the site thereof and belonging and appurtenant thereto”
to Albert Emery. The land was conveyed together with the right of way
“over along and across the yard of the premises formerly known as the York Hotel …to and from Derby Street “.
By conveyance dated 4th October 1967 Albert Emery’s widow, Margaret Emery as his personal representative, conveyed “all those shops situate and numbered 48, 49 and 50 in Church Street together with the land forming the site thereof and belonging and appurtenant thereto” to William Albert Hammer and John Clarence Hammer and together with the right of way over the yard.
20. The conveyance of 30th October 1967 occasioned first registration of the land conveyed, the land being registered under title number LA133933. There was no evidence before me as to what plans or documents were sent to HM Land Registry at the time of the application for first registration. There was also no evidence as to whether HM Land Registry surveyed the land at that time. Land Registry drew the northern boundary line as being along a line which is a continuation eastwards of the line marking the wall between 20 and 19 Derby Street.
21. By a conveyance dated 12th May 1899 John Hayhurst and Thomas Houghton conveyed to The New Preston and Fylde Brewery Company Ltd.
“All that plot piece or parcel of land situate on the north side of Church Street and on the east side of Derby Street … and containing in the whole eight hundred and thirty seven superficial square yards of land or thereabouts Together with all that messuage or dwellinghouse now used as an Inn Public House or Hotel and Stable Brewhouse and other buildings now known as the York Hotel and Brewery in the occupation of James Edward Bonney as tenant All which said presmies are more particularly delineated and described on the map or plan drawn hereon and surrounded by a red line”
The conveyance reserved a right of way over the yard
“to and from the shops and premises numbered 47, 48, 49 and 50 Church Street … to and from Derby Street”
and after the words of reservation there were the following words imposing the restrictive covenant that had been imposed in the conveyance to them by the Indenture of 3rd July 1897,
“no wall to be built between the said yard and the said shops and premises numbered 47, 48, 49 and 50 Church Street but the said yard to renmain open as … so as not to obstruct the exercise of such right of way in as free and convenient a manner as at present enjoyed”
22. The conveyance plan to the 1899 conveyance is drawn on the same underlying plan as the plan drawn on the Indenture of 3rd July 1897. The plan shows the land conveyed as including the area comprising 46 Church Street with the kitchen and brew house in the position as marked on the plan to the 1897 Indenture. The eastern boundary of the land conveyed is shown as running in a line parallel to but a short distance from the east wall of the brew house until a point to the east of the north east corner of the Brew House, where the boundary turns approximately 90 degrees to run east to the north of 47, 48, 49 and 50 Church Street. The red line where it shows the east boundary of the land conveyed parallel with the wall of the brew house follows a pecked line on the underlying plan. When the red line shows the southern boundary of the yard to the east of the brew house, it runs along a pecked line. To the south of the pecked line there is a solid line, which is a continuation of the line drawn to show the wall between the kitchen and the brew house. The pecked line and the solid line to the south are joined at their east end by a sold line. On the area demarked by the pecked line to the north and the solid lines on the other three sides, is written the words “yards of Nos. 47, 48, 49 and 50 Church Street”. The solid line and pecked line meet at the point where is drawn the south west corner of a building, the building being described on the plan as “stables with vaults – stables under”.
23. New Preston and Fylde Brewery Company Ltd conveyed the York Hotel and Brewery to Matthew Brown and Co Ltd by a conveyance dated 12th November 1920. The land conveyed was described in the same words as in the 1899 conveyance and was said to be more particularly delineated and described on the plan drawn on the 1899 conveyance.
24. Matthew Brown and Co Ltd. conveyed the York Hotel and Brewery to Marsdens (Wholesale) Ltd by a conveyance dated 19th April 1926, describing the land conveyed in the same terms as used in the conveyance to it of 12th November 1920.
25. By a conveyance dated 11th November 1927 Marsdens (Wholesale) ltd conveyed to JM Ainsworth and others
(1) firstly,
“All that piece or parcel of land situate on the north side of Church Street and the east side of Derby Street … and containing in the whole Eight hundred and thirty seven superficial square yards or thereabouts Together with all that messuage or dwellinghouse formerly used as an Inn Public House or Hotel and the buildings at the rear formerly used as a Stable brew House and for other purposes now known as No. 46 Church Street and 18 Derby Street but formerly known as York Hotel and Brewery”,
which land was said to be more particularly delineated and described on the plan to the 1899 conveyance; and
(2) secondly,
“All that messuage or dwellinghouse and shop at No. 47 Church Street and the land forming the site thereof and belonging thereto”.
26. By a conveyance dated 14th December 1949 JM Ainsworth and others conveyed to John H Maddock the land conveyed by the conveyance of 11th November 1927.
27. John H Maddock died on 24th March 1996. His executor, Thomas Patrick Maddock by a transfer dated 1st June 1999 transferred the land that was to become registered under title number LA846126. This was the transfer occasioning first registration. The land transferred was described in box 3 of the transfer in form TR1 as being “as delineated on the plan annexed and edged red”. On the plan annexed to the transfer, three attached buildings are shown running along Derby Street from the junction with Church Street: running northwards they are marked as being 46 Church Street, 20 Derby Street and 19 Derby Street. The plan shows the entrance into the yard as being immediately to the north of 19 Derby Street. The southern boundary of the land transferred where it adjoins the rear of 48 to 50 Church Street is shown as being along a line which is a continuation of the line shown as the division between 20 Derby Street and 19 Derby Street. The land transferred by the transfer of 1st June 1999 was registered under title number LA846126 on 26th July 1999. York Yard Limited transferred LA846126 to Blue Suede Ltd by a transfer dated 18th January 2008.
28. The land claimed by Mr Hammer is land to the east of the building which can be identified as being or as being on the site of, the brew house as shown on earlier plans. The land in question was in the ownership of Richard Bibby prior to 3rd July 1897. He could have retained it on the conveyance of the York Hotel or he could have conveyed it away. He did not convey it as part of the York Hotel and Brewery. That much appears from the plan to the Indenture of 3rd July 1897. The land lying to the east of the brew house was not conveyed by that Indenture.
29. The question then arises as to whether it was conveyed away by Richard Bibby on the conveyance of numbers 47, 48, 49 and 50 to Jane and Alice Bibby. The land conveyed by the conveyance of 28th August 1897 was described as being
“bounded on the northerly and westerly sides thereof by the hereditaments conveyed “[ to Hayhurst and Houghton by the Indenture dated 3rd July 1897]”.
As the land conveyed on 28th August 1897 was land bounded on the north side by the land conveyed by the 3rd July 1897 deed, it included the land to the east of the brew house and shown on the plan to the 3rd July 1897 Indenture marked as being “yards of No.s 47, 48, 49 and 50 Church Street”.
30. The next point to be considered is whether the disputed land was conveyed away by Alice Bibby or by Alice Bibby and John Dallas on the conveyances of 47, 48-49, and 50 Church Street. The words used in each of the conveyances is capable of being construed as including the yards at the rear of each property. Counsel for Blue Suede Ltd. submitted that the land in dispute could have been conveyed in its entirety on the subsequent conveyance by Alice Bibby of 47 Church Street. I do not accept that submission. The plan attached to the conveyance of 3rd July 1897 indicates that there were then “yards of No.s 47, 48, 49 and 50 Church Street” in a position at the rear of those buildings. The conveyance of 47 Church Street by Alice Bibby was of “all that messuage or dwellinghouse and shop numbered 47 Church Street … now in the occupation of the purchaser”. In the absence of other evidence, I do not consider it proper to assume that Alice Bibby conveyed as part of 47 Church Street the whole of the yards of described on the conveyance to her in 1897 as being “of Nos. 47, 48 ,49 and 50”. The proper construction in the absence of other evidence is that what was conveyed was 47 Church Street with the yard at its rear. The yards of 48, 49 and 50 would then have passed on the subsequent conveyances of 48, 49 and 50.
31. That the yard at the rear of 47 Church Street was conveyed as part of 47 Church Street by the conveyance of 30th April 1920 is shown by the conveyance being expressed to be together with the right of way over the yard of the York Hotel. The conveyance was with the benefit of a right of way over land not at the date of the conveyance in the ownership of the vendor. The conveyance contains no reference to the vendor retaining land between the yard of Number 47 and the yard of the York Hotel. That indicates that it was possible to get to and from the land conveyed to and from Derby Street by passing over the yard of the York Hotel, without going over any intervening land.
32. As with the conveyance of 47 Church Street of 30th April 1920 the conveyances of 50 Church Street of 18th November 1920 and of 48-49 Church Street of 30th April 1926 were made in each case with the benefit of a right of way over the yard of the York Hotel to and from Derby Street. That right of way would not have been of benefit to the purchasers of either property if the yards at the rear of 48-49 and 50 had been conveyed on the prior conveyance of 47 Church Street.
33. I conclude that the Applicant can show a pre-registration paper title to the land he claims. The yards at the rear of 48-49 Church Street and 50 Church Street were conveyed on the respective conveyances of those properties dated 30th April 1926 and 18th November 1920. The subsequent conveyances down to the conveyance to William and John Hammer on 4th October 1967 were in terms appropriate to pass all that had been conveyed to the respective vendors, including the yards at the rear of each property.
34. The next issue to be decided is whether the land claimed by Mr Hammer is within Blue Suede Ltd.’s title or not. If the latter is the case, then Mr Hammer’s application is one to alter the general boundary and not an application to rectify the register. If the former, then the application is an application to rectify the register. An application to alter the register is an application to rectify the register if the alteration involves the correction of a mistake and would prejudicially affect the title of the registered proprietor – Land Registration Act 2002 Schedule 4 para 1. An application to change the general boundary shown on the filed plan of the registered title to replace the first general boundary with a more accurate general boundary is not “rectification” within Schedule 4 to the Land Registration Act 2002 because it does not “prejudicially affect the title of a registered proprietor” – Derbyshire CC v Fallon [2007] 3 EGLR 44 and Drake v Fripp [2012] 1 P&CR 69.
35. At the time of registration of Blue Suede Ltd.’s title and the registration of Mr Hammer’s title, rule 278 of the Land Registration Rules 1925 applied. That rule provided so far as is material as follows
“(1) Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan or General Map should be deemed to indicate the general boundaries only.
(2) In such cases the exact line of the boundary will be left undetermined as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within it or beyond it; ….”
It has remained the case since the passing of the Land Registration Act 2002 that the boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under section 60 of the 2002 Act.
36. In this case, HM Land Registry on registration of the title to Mr Hammer’s land, chose to draw the general boundary along the only solid line shown on the Ordnance Survey in the general area of the part of the boundary in question. There was at the time of registraiton no line on the Ordnance Survey map marking the pecked line followed by the boundary on the plan to the 1897 conveyance (though a pecked line is now shown on the version of the Ordnance Survey map used for the notice plan which accompanied the noticegiven by Land Registry of Mr Hammer’s application to Blue Suede Ltd.). The only evidence that there has ever been any physical feature marking the edge or boundary of the yard areas of 47, 48, 49 and 50 is Mr Hammer’s evidence that that yard area used to be cobbled. It would not be surprising if a mere change in the surface of the land was not shown on the Ordnance Survey map. This appears to me to be a classic case where the general boundary of Mr Hammer’s land has been drawn following a physical structure in the form of a wall and the question of how far the boundary runs beyond the wall is left undetermined by the title plan.
37. On the subsequent registration of the land now owned by Blue Suede Ltd. the Land Registry drew the boundary to the south as being along the same line as the northern boundary of the already registered title to Mr Hammer’s land to the south. As appears from Land Registry Practice Guide 40, HM Land Registry would have completed the first registration of Blue Suede Ltd.’s land without making detailed enquiries as to the precise location of the boundaries. The aim of HM Land Registry is that the title plan should reflect what it concludes to be a reasonable interpretation of the land in the pre-registration deeds in relation to the detail on the Ordnance Survey map, taking into account any adjoining registrations. The boundary was drawn along a solid line on the Ordnance Survey map indicating for the main part a wall. How far beyond the wall the boundary lies is not determined by the title plan.
37. Counsel for Blue Suede Ltd. submitted that the area of land claimed by Mr Hammer is of such a size in relation to the rest of the land in Blue Suede Ltd.’s title that the application should not be regarded as an application to alter the general boundary but as an application to rectify the title. In other words, he submitted that the dispute between the parties was a property dispute and not a boundary dispute. In Drake v. Fripp Lewison L.J. rejected an argument that there was some limit on the quantity of land that might be encompassed in a boundary dispute. His Lordship said that it must be a question of fact and degree, depending on all the circumstances, including the ratio between the quantity of land at issue and the quantity of land remaining. In Lee v. Barrey [1957] Ch. 251 an alteration in the filed plan to move the boundary by 10 feet fell within the scope of the general boundaries rule, even though the whole frontage of the plot in question was only 42 feet. Here, the parties did not give me the dimensions of the area in dispute or of the entire yard. However, both counsel agreed that a plan in the bundle dated September 1970, bearing the name “Reg F Rigby” and said to be at a scale of 8’ to 1” was the most accurate plan available, save that it showed the building along the east side of York Yard before it was built. That plan indicates as follows
(1) that the whole open yard area is approximately 45 feet long by about 16 feet wide (not including the entrance from Derby Street);
(2) that the yard including the buildings along the east and west sides is approximately 35 feet wide;
(3) that Blue Suede Ltd.’s land is approximately 80 feet long along the western boundary and 65 feet long along the western boundary; and
(4) that the area in dispute is about 7’ deep at the deepest point and about 16’ deep at the widest point.
The measurements derived from that drawing accord with my views of the size of the areas involved derived from observation on the site visits. Having regard to those approximate measurements, I consider that the dispute between the parties is a boundary dispute. I conclude that this is an application to alter the general boundary to show a general boundary in a more accurate position.
38. Counsel for Blue Suede Ltd. submitted that I should not order alteration of the general boundary because it had title to the land in issue by adverse possession. As I have found that the land is part of the Applicant’s registered title, the Respondent has to show either that the land was as at 13th September 2003 (being the date on which section 97 of the Land Registration Act 2002 came into force) held on trust for it’s predecessor in title by virtue of section 75(1) of the Land Registration Act 1925 or that it could succeed on an application under Schedule 6 to the Land Registration Act 2002. The former would require it to show that its predecessor in title had been in factual possession of the land with the intention to possess the same for at least 12 years prior to 13th September 2003, i.e. from at least 13th September 1991. The latter would require it to show at least ten years possession.
39. Legal possession is comprised of two elements:
(1) A sufficient degree of physical custody and control (“factual possession”); and
(2) An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”). “What is crucial is to understand that, without the requisite intention in law there can be no possession. Such intention may be, and frequently is, deduced from the physical acts themselves.” (ibid paragraph 40).
Factual possession has been described as follows:
“It signifies an appropriate degree of physical control. It must be a single and [exclusive] possession…Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed …Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.”
per Slade J in Powell v McFarlane (1977) 38 P and CR 452 at pp. 470-471, cited at paragraph 41 in J A Pye (Oxford) v Graham [2002] UKHL 30.
40. What is required for the intention to possess is the intention to exclude the whole world, including the true owner of the paper title, from the land so far as is reasonably practicable and so far as the processes of the law will allow – see per Slade J. in Powell v. McFarlane above. The intention must not only be the subjective intention of the squatter but the squatter must also show by his outward conduct that he has such an intention. The intention must be manifested by unequivocal action – see Prudential Assurance Co ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87.
41. Blue Suede Ltd sought to rely on the following as evidencing possession by it of the disputed land:
(1) the installation by Blue Suede Ltd. of a gate with electronic lock across the entrance to the yard from Derby Street and the issue of fobs to permit the gate to be opened;
(2) Blue Suede Ltd. writing to Mr Hammer requiring him to have an entrance into the yard from Pole Street, the street running parallel to Derby Street and to the east, blocked up;
(3) the maintenance of the yard by Blue Suede Ltd.
(4) the resurfacing of the yard by Blue Suede Ltd.
The only evidence about the gate was given by Mr Hammer. He said that the gate was installed about 5 years ago. Mr Hammer said that he did not mind the gate being installed because he still had access; he was given fobs to operate the gate. The whole of the yard, including the disputed land was re-surfaced with tarmac in 2001 by contractors instructed by York Yard Ltd. and at the same time a new drainage pipe to drain the yard was installed across the disputed land. Mr Hammer’s evidence was that the contractors asked him to move his cars so that they could lay the tarmac. He did so because he had no objection to the tarmac being laid. As to maintenance of the yard, Mr Peter Maddock said that contrators were instructed to clean the yard on a regular basis. Mr Hammer said that he had never seen anyone maintain or clean the yard. As to use of the disputed land, Mr Hammer’s evidence was that he had parked on the land at the rear of 48, 49 and 50. Mr Hammer’s wife gave evidence that she had parked on the disputed land.
42. Looking at the evidence as a whole, it does not show that Blue Suede Ltd and its predecessors in title have been in possession of the disputed land to the exclusion of Mr Hammer or his predecessors in title as the registered proprietor. The land has been used by Mr Hammer. There has not been exclusive physical control of the disputed land by Blue Suede Ltd or its predecessors in title. Further, they have not manifested an unequivocal intention to exclude the whole world, including the registered proprietors from time to time of Mr Hammer’s land. I do not consider that Blue Suede Ltd has been in factual possession of the disputed land or had the intention to possess.
Should the general boundary be altered?
43. Under Schedule 4 the registrar may alter the register for the purposes of correcting a mistake. I have found that the general boundary is shown in the wrong place and could be shown more accurately. There is a mistake on the registers of both Mr Hammer’s title and Blue Suede Ltd.’s title in as much as the general boundary is shown in the wrong place. That mistake may be corrected by the registrar under paragraph 5 of Schedule 4 - see Derbyshire County Council v. Fallon [2007] EWHC 1326 (Ch) at para 26. The registrar has a discretion whether to alter the register.
44. In determining how the discretion should be exercised, I am entitled to look to Land Registration Rules rule 126 for guidance as to how the discretion should be exercised. Rule 126 requires the court in a non-rectification case to order alteration, unless there are exceptional circumstances. As stated in Derbyshire County Council v. Fallon, in the normal case if it has been determined that the general boundary is shown in the wrong place, it can be expected that the filed plan will be altered to show the boundary more accurately – see ibid. para 33. The question is therefore whether there are here circumstances taking the case out of the norm.
45. The Respondent submitted that there are exceptional circumstances in this case which should lead me to direct the registrar not to exercise the discretion to alter the register. The circumstances here relied on by the Respondent as being “exceptional circumstances” are as follows
(1) That there has been considerable delay in making the application. The Applicant’s title was first registered in 1967;
(2) That the Respondent paid a substantial sum for its property;
(3) That the Respondent tarmaced the whole of the yard, including the disputed land and renewed drains for the benefit of the disputed land and has maintained it as part of the yard.
(4) That the disputed land is of importance to the Respondent because by owing the whole of the yard, it is better able to provide security for the yard.
46. I do not consider that the circumstances sought to be relied on are such as to make it right for the general boundary not to be altered to show it in a more accurate position. Blue Suede Ltd.’s complaint is in essence that on acquiring York Yard it did not get all the land it thought it was getting from looking at the title plan. However, a refusal to alter the general boundary is not an answer to this complaint. Not altering the general boundary will not in any way give the Respondent the disputed land. It will remain the property of the Applicant. It is simply that it will not be readily apparent from the title plan that the disputed land is the Applicant’s land. Not altering the general boundary will not in any way compensate the Respondent for having tarmaced and maintained the land as part of the whole yard. Not altering the general boundary will not give the Respondent any better ability to maintain the security of the yard because the disputed land will remain the property of the Applicant. In these circumstances, I consider that the registrar should exercise his discretion to alter the register so that the filed plan more accurately reflects the true line of the legal boundary.
Conclusions
47. Mr Hammer has shown that he has title to the disputed land. The title plans should be altered so as to show a more accurate general boundary. Accordingly, I shall direct the Chief Land Registrar to give effect to the application of Mr Hammer by altering the southern boundary of title number LA846126 so that it follows the northern edge of the area coloured blue on the notice plan and the eastern boundary so that it follows the western edge of the area coloured blue on the notice plan, save that the area of the former water closet building is to remain within title LA846126. The parties are to prepare, agree and file with the Tribunal by 5pm on 10th June 2016 a plan to be substituted as the filed plan for LA846126 in the place of the current filed plan.
Costs
48 Mr Hammer has succeeded in his application. The normal rule is that the unsuccessful party is ordered to pay the costs of the successful party. My preliminary view is that the normal rule should apply and that Blue Suede Ltd should be ordered to pay the costs of Mr Hammer. Any party who wishes to submit that some different order should be made as to costs should serve written submissions on the Tribunal and on the other party by 5pm on 10th June 2016
BY ORDER OF THE TRIBUNAL
DATED THIS 20th day of MAY 2016