REF 2015 0490

 

PROPERTY CHAMBER, LAND REGISTRATION DIVISION

FIRST-TIER TRIBUNAL

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

BETWEEN

 

YVONNE HOLROYD

Applicant

And

 

(1)   ROBERT GETHING

(2)   KIMBERLEY GETHING

Respondents

 

 

Property Address: Land adjoining 37 Wansford Close, Billingham, Cleveland TS23 3LB

 

Title Number: CE221935

 

 

Before Judge Michell

 

Sitting at: Darlington Magistrates Court

 

On: 14^th April 2016

 

 

Applicant Representation: Mrs LA Davies, lay representative

Respondent Representation: In person

 

__________________________________________________________________________

 

DECISION

___________________________________________________________________________

 

LAND REGISTRATION ACT 2002 SCHEDULE 6 – POSSESSION-SECOND CONDITION OF PARAGRAPH 5- APPLICANT AND PREDECESSORS IN TITLE IN POSSESSION FOR MORE THAN 12 YEARS PRIOR TO 13 OCTOBER 2003 

 

Cases Referred to

 

J A Pye (Oxford) Ltd v Graham [2002] UKHL 30

Balevents Ltd. V. Sartori [2014] EWHC 1164 (Ch) 

 

 

 

1.      The Applicant on 4^th September 2014 applied for registration of a small triangle of land (to which I shall refer as “the disputed land”) at the rear of her garden at 37 Wansford Close, Billingham.  The disputed land forms part of the land registered under title number CE56353, being 39 Wansford Close.  The Respondents are the registered proprietors of 39 Wansford Close.  37 Wansford Close is registered under title number CE51639.  The application was made in form ADV1 and is thus an application under Schedule 6 to the Land Registration Act 2002.  The Applicant indicated in her application form that if the Respondents required the matter to be dealt with under Schedule 6 paragraph 5, she would rely on the first, second and third conditions of paragraph 5.  The Respondents objected to the application and required the matter to be dealt with under paragraph 5.

2.      For the reasons appearing below, I shall direct the Chief Land Registrar to give effect to the application as if the objection of the Respondents thereto had not been made.

3.      37 and 39 Wansford Close are houses constructed in about 1981 by the developer, Wimpey Homes.  They both occupy a corner of the Wansford Close development.  In simple terms the sites of 37 and 39 together comprise a square area, bisected for the most part by a diagonal line running from the south-west corner to the north-east corner.  I shall refer to the south-west corner as “point A” and to the north-east corner as “point C”.  37 lies to the north- west of this line and 39 lies to the south-east.  Both properties are accessed from the south-west. The front of 37 faces south and the front of 39 faces west.   About 15 feet or so south-west from  the north-east corner of the combined site, at a point I shall refer to as “Point B”,  the boundary line between 37 and 39 turns from the diagonal to run due north to meet the northern boundary of 37.  I shall refer to the point where the fence meets the northern boundary of 37 as “point D”.  The land in dispute is the triangle bound by the points B-C-D.  The eastern boundary of the garden of 39 adjoins a road, which is on an embankment.  The disputed land forms part of the bank and slopes up to east.  

 

4.      37 was purchased from the developer by Mr Richard Davison and his wife in December 1980.  Mr and Mrs Davison transferred title to 37 to the Applicant, Mrs Holroyd and her late husband, Mr Holroyd, who were registered as proprietors on 28^th August 1992.  Title to 39 was transferred by the developer to Mr and Mrs MacKeith by a transfer dated 9^th October 1991.  Subsequently, on 10^th April 2000, Mr and Mrs Colin McLean were registered as proprietors of 37.  Mr and Mrs McLean transferred 37 to the Respondents, Mr and Mrs Gething, who were registered as proprietors on 19^th July 2013.

5.      Evidence of what has happened in respect of the disputed land between 1982 and the purchase of 39 by Mr and Mrs Gething was given by Mr Davison, Mr McLean and Mrs Holroyd.  Mr and Mrs Gething produced no evidence to contradict what Mr Davison and Mr McLean said.  They are in no position from their personal knowledge to dispute it.

6.      Mr Davison’s evidence was that when he and his wife bought 37, there was a post and wire fence running along the boundary line as shown on the title plans.  In 1982 he and the then owner of 39, Mr MacKeith, together paid for and erected a wooden fence to replace the post and wire fence.  The fence followed the boundary for most of its length but towards the north east end, instead of turning at an angle at point B to run north, following the legal boundary line, it continued in a straight line to meet the north-east corner of the combined site at point C.  From then until when Mr and Mrs Davison sold to Mr and Mrs Holroyd in 1992, Mr and Mrs Davison occupied the area B-C-D as part of their garden, cultivating it and installing a rockery near point C.

7.      Mr McLean’s evidence was that when he and his wife purchased 39 in 2000, they were advised that the area B-C-D (the disputed land) had been fenced off from the garden of 39 at least 10 years previously and since then had been occupied as part of the garden of 37.  The fence was then in position along the line A-B-C and it remained in that position until they sold to Mr and Mrs Gething. There was a serviceable fence along the line A-B-C at the time they sold to Mr and Mrs Gething but the fence may have been partly obscured on the 39 side by brambles.

8.      Mrs Holroyd gave evidence that she and her late husband had since 1992 planted flowers and shrubs and climbing plants on the disputed land and erected retaining walls and a rockery.  Mrs Holroyd produced photographs taken from within her garden in which the disputed land can be seen.  Though the photographs were taken some years before June 2014, Mrs Holroyd said in her oral evidence that the disputed land had a similar appearance in June 2014, prior to the erection of the fence by Mr Gething, to its appearance in the photograph she produced marked EX4.  The only differences were that a shrub had grown up and the late Mr Holroyd had built an ornamental wall at the base of the sloped area.  There had been no challenge to her occupation of the disputed land until June 2014.

9.      The Respondents did not dispute the evidence given as to the erection of the fence or the use of the disputed land by Mr Davison and Mr and Mrs Holroyd although they did say that in May 2014 there was no fence along the line B-C but only dense bushes.  Mr Gething did say that the disputed land as at May 2014 did not look anything like it did in the photograph EX4.

10.  The Respondents’ case was that Mrs Holroyd agreed to Mr Gething putting up a fence along the line B-D.  Mr Gething said that Mrs Holroyd agreed orally during the morning of 13^th June 2014 but he also accepted that Mrs Holroyd objected to the position of the fence posts when she returned to her house at about 1pm on the same day and that she then told him the disputed land belonged to her. 

11.  There is little dispute about what happened on the morning of 13^th June 2014.  Mr Gething went over to talk to Mrs Holroyd while she was bringing in her wheelie bin.  He had in May 2014 erected a fence alone the line A-B.  He told Mrs Holroyd that he intended to erect a fence along the line B-D.  Mr Gething says that Mrs Holroyd agreed to what he intended to do on condition that a rose bush on the disputed land was dug up and replanted on Mrs Holroyd’s side of the fence.  Mrs Holroyd says that she was taken aback by what Mr Gething said. He did not ask for her agreement but just told her what he was going to do.  Mrs Holroyd said that she was confused and that the only thing she could think to say was to ask Mr Gething to save her climbing rose bushes, which were on the disputed land.   Mrs Holroyd returned from work at about 1pm that afternoon. She then saw that Mr Gething had erected fence posts set in concrete and some wooden railings (but not fence panels) along the line B-D, had “destroyed” her plants and flowers on the disputed land and removed some decorative brickwork.  Mrs Holroyd told Mr Gething then that she had been in possession of the disputed land for so long that it belonged to her.  Mr Gething did not agree and he proceeded to finish the fence.

 

 

Law

12. The way in which registered land may be acquired by adverse possession was altered by the Land Registration Act 2002.  Prior to the coming into force of that Act, if there was adverse possession of registered land for a period of 12 years, the registered proprietor held the registered title on trust for the possessor under Section 75 of the Land Registration Act 1925.  Schedule 12 paragraph 18 to the Land Registration Act 2002 provided that where immediately before the coming into force of the Land Registration Act 2002, land was held on trust for a person under section 75 of the Land Registration Act 1925, that person remained entitled to be registered as proprietor of the land.  Except where that provision applies, since 13^th October 2003 the provisions of the Limitation Act 1980 do not apply to registered land and instead the provisions of Schedule 6 to the Land Registration Act 2002 apply.  A person may apply to be registered with a possessory title to registered land under Schedule 6 para 1(1) where he has been in possession of the land for at least 10 years prior to the date of the application or

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

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

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

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

 

13.       If on an application under Schedule 6, the registered proprietor objects and requires the matter to be dealt with under paragraph 5 of Schedule 6, the application must be rejected unless one of the 3 conditions set out in paragraph 5 is met.  The relevant provisions of paragraph 5 are as follows:

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

(2) The first condition is that—

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

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

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

(4)The third condition is that—

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

(b) the exact line of the boundary between the two has not been determined under rules under section 60,

(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and

(d) the estate to which the application relates was registered more than one year prior to the date of the application.

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

 

14. Proof of adverse possession of land requires proof of factual possession with the intention to possess. As for factual possession, in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419, the House of Lords approved the following statement by Slade J in Powell v McFarlane [1977] 38 P&CR 452:

"(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. 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."

15.  As for intention to possess, the House of Lords explained in Pye that this requires:

"An intention, in one's own name and on one's own behalf to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow."

Findings

16.  On the evidence, I find that Mrs Holroyd and her predecessors in title have been in adverse possession of the disputed land since 1982.  The evidence shows that Mrs Holroyd and her predecessors have enjoyed factual possession of the disputed land and their acts on the land are such as to show that they had the necessary intention to possess it.  I find that Mrs Holroyd was in possession until excluded by the erection of the fence along the line B-D on 13^th June 2014.  As to the existence of a fence on the line B-C in June 2014, I prefer the evidence of Mrs Holroyd to that of Mr Gething.  There is undisputed evidence that a fence was erected on this line and was standing at the time of the sale of 39 to Mr and Mrs Gething.  I do not consider that this fence would have disappeared between Mr and Mrs Gething acquiring 39 and Mr Gething starting work on the fence on the line B-D in June 2014.

17.    There is no evidence that their possession was with the consent of the true owner.  There are no grounds for implying that the possession was with the consent of the true owner.  Mr and Mrs Gething did not seek to suggest that Mrs Holroyd had occupied with their permission or that of their predecessors or that such permission was to be implied.

18.  Mrs Holroyd and her predecessors in title were in adverse possession of the disputed land for a period of more than 10 years prior to the erection of the fence on 13^th June 2014.  Mrs Holroyd made her application within 6 months of her ceasing to be in adverse possession of the disputed land.  Mrs Holroyd was accordingly entitled to apply under Schedule 6.  Mrs Holroyd and her predecessors in title were in possession of the disputed land for a period of more than 12 years prior to 13^th October 2013. This brings her within the second condition in paragraph 5 of Schedule 6 – see Balevents Ltd. V. Sartori [2014] EWHC 1164 (Ch).  Accordingly, Mrs Holroyd is entitled to be registered as proprietor of the disputed land.

19.  Mrs Holroyd is entitled to be paid her costs of the proceedings.  She has succeeded on her application against the objection of Mr and Mrs Gething and it is just that she should be paid her costs.                                    

 

DATED THIS 15^th APRIL 2016

 

 

 

 

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BY ORDER OF THE TRIBUNAL