The Adjudicator to HM Land Registry

 

 

Case Number: REF/2004/0664

 

Title Number: BL76888

 

Property: Land adjoining 15 Woodcroft Road, Brislington, Bristol

 

Applicant : Graham Ernest POWNEY

 

Applicant

Representation: Mr Atchley, Solicitor

 

Respondent: BRISTOL CITY COUNCIL

 

Respondent

Representation: Mr Denford, Solicitor

 

Before: Mr Timothy Cowen sitting as a Deputy Adjudicator

 

 

 

 

SUBSTANTIVE DECISION

 

 

Introduction

1.                  Numbers 15 and 16 are residential houses on the same side of Woodcroft Road in Bristol. The only land between them is an undeveloped rectangular piece of land (“the Disputed Land”). It appears on a plan to be about the same size and shape as each of the adjacent developed plots. It is unregistered land. The Respondents claim freehold title to the Disputed Land under a conveyance dated 30 June 1948.

2.                  The Applicant is the current registered freehold proprietor of number 15. He has been since his father, Dennis Powney, transferred it to him in August 1987. He claims that from 1966 to about 1990 his father was in possession of the Disputed Land. The Applicant concedes that the 1948 conveyance gave the Respondents paper title to the Disputed Land, but he claims that his father has extinguished the Respondents’ title by adverse possession.

3.                  The Applicant therefore applied on 9 October 2003 to Her Majesty’s Land Registry (“HMLR”) for first registration of the Disputed Land. The Respondents, who had in 1988 registered a caution against first registration in anticipation, objected to the Applicant’s application and the dispute was referred to the Adjudicator to HMLR under section 73(7) Land Registration Act 2002. At a hearing on 13 September 2005, I heard evidence from the Applicant and his father and from 2 employees of the Respondents. I have also heard detailed submissions from both sides.

The applicable law

4.                  The relevant law is contained in sections 15 and 17 of the Limitation Act 1980. I am not troubled in this case by the human rights implications raised in the recent decision in Beaulane Properties v Palmer [2005] All ER (D) 413, HRLR 19 and Times 13 April 2005. This is because the Deputy Judge in that case expressly restricted the ambit of his decision to those cases where the 12 year limitation period is claimed to have expired after the coming into force of the Human Rights Act 1998 in October 2000. That is not the case here.

5.                  So the law I must apply is that which is most recently set out by the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419. In that case, Lord Browne-Wilkinson at paragraphs 40 and 41 expressly approved the following statement of the law by Slade J (as he then was) in Powell v McFarlane (1977) 38 P&CR 452, 470-471:

“If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')."

6.                  Lord Browne Wilkinson at paragraph 40 of Pye reformulated the definitions of factual possession and animus possidendi as follows:

“To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ("factual possession"); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess").”

The evidence

7.                  Bearing all that in mind, I turn to the evidence in the present case. The only witnesses as to events which took place prior to the early 1990s were the Applicant and his father. Their evidence could not be and was not seriously challenged by the Respondents. I accept the evidence of the Applicant and his father.

8.                  Mr Powney senior said that he purchased 15 Woodcroft Road and moved in in February 1966. Running behind the plots and houses on the south side of Woodcroft Road (including No. 15 and the Disputed Land) is an unmade road. This belongs to the Respondents. On the other side of that unmade road is a row of allotments also owned by the Respondents and rented out.

9.                  Mr Powney senior is a keen vegetable gardener. Soon after he moved in to 15 Woodcroft Road, he made enquiries about renting one of the allotments from the Respondents. None were then available. At that time, the Disputed Land was effectively an overgrown piece of wasteland. Mr Powney senior realised that if he could clear the overgrowth, then he could use the land for growing his vegetables.

Boundaries of the Disputed Land

10.              In 1966, the Disputed Land was effectively enclosed on 3 of its 4 sides. At the north end (where it abuts Woodcroft Road), the level of the Disputed Land is about 5 feet lower than the road surface. There was in 1966, and still is, a retaining wall and above that a chainlink fence on the boundary between the Disputed Land and the public footpath of the highway. The effect of this was, and is, effectively an impenetrable barrier between the Disputed Land and Woodcroft Road. The land then slopes down towards the south.

11.              On the western side of the Disputed Land is its boundary with No. 16 Woodcroft Road. Mr & Mrs Edwards lived there. In 1966, the full length of that boundary was marked by a simple post and wire fence of the type used commonly by estate builders. Soon after 1966, Mr & Mrs Edwards replaced that with a wooden fence which remains there today.

12.              The eastern boundary was between the Disputed Land and 15 Woodcroft Road. There was a short fence along the length of it. It was so short, Mr Powney senior said he could step over it to get into the Disputed Land. There was also a thick line of shrubs along most of the length of the boundary. That was so thick that there was only one space through which Mr Powney senior could step over the short fence onto the Disputed Land. All these features enclosing 3 of the 4 sides of the Disputed Land were in place before Mr Powney senior entered the Disputed Land for the first time in February 1966. He did not change or add to any of them.

13.              The fourth (south) side of the Disputed Land was open when Mr Powney senior arrived at No. 15. This was the line between the Disputed Land and the unmade road also owned by the Respondents. There were already 3 posts on this line: one on each corner and one in the middle of the opening. Mr Powney senior took a piece of wire and strung it between the 3 posts at a height of about 3 feet from the ground. This was a very rudimentary barrier and would not prevent someone from crawling under it, stepping over it or even simply removing it. Mr Powney senior made it deliberately accessible because he intended to take heavy gardening machinery out of his garage at the rear of No. 15, along part of the Respondents’ unmade road and into the Disputed Land. So, Mr Powney senior did not erect the wire across the south open side of the Disputed Land as an effective barrier. I infer from this that the only reason he did so was to communicate to the rest of the world that he intended to take control of the Disputed Land. This, of course, is not enough by itself to constitute adverse possession. The Applicant must also prove that his father took factual possession of the Disputed Land with the requisite intention.

Cultivation of the Disputed Land

14.              After his fruitless enquiries about renting an allotment, Mr Powney senior’s attention turned to the Disputed Land. He consulted Mr & Mrs Edwards of No. 16; they had no objection to him cultivating the Disputed Land for his own purposes. Mr Powney senior made no other enquiries as to the ownership or status of the Disputed Land. He strung up the wire across the open fourth side, as I have described, and began clearing away the overgrown foliage in about May 1966. He started by using a hand-held sickle and subsequently purchased a second-hand power tool for the job. Even so, it was a large area to clear by himself and by the summer of 1966, he had cleared only about three-quarters of the land. At this point he began planting vegetables on the part he had cleared.

15.              By the end of 1966 or beginning of 1967, an allotment plot at the back of Woodcroft Road had come free. Mr Powney senior took a tenancy of plot 15 from the Respondents with effect from 1 January 1967. He held this plot until 1978, but in the meantime, he took on a tenancy of plot 22 in 1974. He held this tenancy until September 1990. In 1979, he was granted a tenancy of plot 18 and in 1983 his son, the Applicant, was granted a tenancy of plot 23. These last 2 plots were also vacated in September 1990. Mr Powney senior himself moved out of No. 15 in about January 1991. Since then no cultivation has taken place on the Disputed Land. The Applicant says that he keeps the weeds down every so often with a strimmer. He has also (in about 1995 or 1996) removed the shrubs and fence between the Disputed Land and No. 15 thereby incorporating the Disputed Land into his garden. He has replaced the single strand of wire on the south side with a more substantial barrier. However, for the purposes of this application, I am concerning principally with the period of 12 years immediately following the purchase of No.15 by his father in 1966.

16.              Throughout the period up to 1991, Mr Powney senior was using the Disputed Land (all of which he had eventually cleared) to cultivate and grow vegetables as well as using the various rented allotments for the same purpose. The Applicant said in evidence that in this way his father was able to provide all his family’s fruit and vegetables. Throughout the period of cultivation up to 1990, the whole of the Disputed Land was used from growing vegetables. Nobody else could have used the land for any other purpose without damaging Mr Powney senior’s crops. The only time part of the Disputed Land did not have vegetables growing on it was when Mr Powney senior left that part fallow which he did in a sort of rotation in the interests of good cultivation. I regard that as part of the process of cultivation and not a break in possession as the Respondents submitted. Similarly, the single strand of wire remained in place throughout that period except during the annual delivery of manure from a truck which drove down the unmade road.

Factual possession

17.              Does all of this constitute factual possession? In paragraph 41 of Pye, Lord Browne-Wilkinson approved the following explanation of factual possession by Slade J in Powell:

"(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."

18.              In my judgment, Mr Powney senior’s use of the Disputed Land from 1966 satisfies the necessary elements. I do not accede to a submission by the Respondents that nothing short of complete enclosure will do. I am satisfied that the cultivation carried out by Mr Powney senior was exclusive physical control bearing in mind the nature of the land. In relation to a piece of open land in the vicinity of allotments, cultivation and vegetable growing is a manner in which land of that nature is commonly used or enjoyed. I also reject a submission by the Respondents that I am bound to look only at the immediately adjoining plots to determine the manner in which the land is commonly used or enjoyed.

Intention to possess

19.              Did Mr Powney senior have the requisite intention to possess? In my judgment, he did. His use of the land itself demonstrated his intention to possess it. This was crowned, as I have already found, by the erection of the strand of wire creating a notional division between the Disputed Land and the rest of the Respondents’ land. I am satisfied that these acts communicated to the world at large and to the Respondents in particular that Mr Powney senior had taken possession of the Disputed Land. I am supported in this conclusion by the fact that on 17 June 1988, the Respondents wrote to Mr Powney senior saying that it had come to their attention that the Disputed Land “is occupied by yourself”.

Disputed Land as alleged accessway

20.              The same letter also refers to the Disputed Land being owned by the Respondents “as access to the allotment land at the rear of your property”. This is odd, because all of the witnesses at the hearing who had visited the area were clear that the Disputed Land was only accessible on one side (namely, the south side) and therefore could not be used as meaningful access to the allotment plots from anywhere else. Mr Marshall, a legal officer of the Respondents who had not visited the area in question, gave evidence that a Mr Cooper (a local farmer) told him that he had used the Disputed Land as access to some land at the rear since 1962. Mr Cooper did not give evidence at the hearing, so there was no opportunity for him to be asked any questions about this. Unless the layout of the land was quite different between 1962 to 1966 (which would have no relevance to this dispute anyway), I cannot accept that Mr Cooper or anyone else used the Disputed Land as an accessway since 1966.

The landlord and tenant point

21.              Since I have found that the Applicant has demonstrated factual possession and intention to possess for a continuous period of 12 years, the matter would end there were it not for an additional point raised by the Respondents. They refer to the well established principle that a tenant cannot acquire title against his landlord by adverse possession during the currency of the tenancy. If the tenant encroaches on land belonging to the landlord outside the demise then the land is presumed to be an addition to the tenancy and the tenant’s title to it expires with the tenancy. This principle applies even if the land is not joined to the demised premises. See Smirk v Lyndale Developments Ltd [1975] Ch 317 and Long v Tower Hamlets LBC [1998] Ch 197.

22.              In this case, the Respondents say that Mr Powney senior was a tenant of the allotments at the rear from 1967 to 1990 and any possession he had of the Disputed Land during that time was merely an accretion to the tenancy which would have come to an end in 1990.

23.              The principle is, however, qualified. The presumption can be rebutted by the tenant showing that a different intention is shown by the conduct of the parties. An example of a different intention is where the tenant is in occupation of the disputed land before entering into the tenancy: Dixon v Baty (1866) LR 1 Exch 259. This makes perfect sense, of course, because it cannot be said that the parties intended or assumed the taking of possession to be an accretion to a tenancy which had not yet come into being. Mr Atchley, for the Applicant, relied upon the Dixon case to meet the Respondents’ submissions on this landlord and tenant point.

24.              Mr Denford, for the Respondents, conceded that if Mr Powney senior had commenced possession of the Disputed Land before 1 January 1967 (the date of commencement of the first allotment tenancy) then his landlord and tenant point would not assist his case. Mr Denford said, however, that as a matter of fact Mr Powney senior had not commenced possession prior to that date. He says that:

(a)                only three-quarters of the Disputed Land had been cleared by the end of 1966;

(b)               there is no evidence as to which part of the Disputed Land was cleared and which was still overgrown at that date; and

(c)                accordingly, the Applicant has failed to show that Mr Powney senior had taken possession of all of the Disputed Land before the commencement of the first tenancy;

(d)               it follows that he must have taken possession of the whole of the Disputed Land some time after 1 January 1967.

25.              I do not agree. Clearing away the overgrowth was the first step in the process of cultivating the Disputed Land. When Mr Powney senior erected the wire barrier and started clearing the land, he was thereby taking possession. He did not divide the Disputed Land into discrete quarters and deal with each separately. His three-quarters was an estimate of how much he had achieved in 1966 of a continuous process. When he started that process in 1966, he was taking possession of land and cannot be presumed to have done so as part of a tenancy, because there was none. He had a demonstrably different intention. He started growing vegetables on the Disputed Land before the end of 1966. It would not accord with the reality of the circumstances for me to hold that his possession of the Disputed Land only commenced when he had finished clearing the last quarter of the overgrown land. In addition, because of the lie of the land and the way Mr Powney senior accessed the Disputed Land in 1966, it can be inferred that the three-quarters of the land which he had initially cleared were situated nearest to the south side, leaving the north side still overgrown, and I so find on the balance of probabilities. Since I have found that no-one could access the Disputed Land, save for Mr Powney senior himself, from anywhere other than the south side, it follows that by the end of 1966, Mr Powney senior had effectively excluded the world at large (including the Respondents) from the whole of the Disputed Land, notwithstanding that he had cleared only three-quarters of it.

Conclusion

26.              I therefore find that the Respondents’ title to the Disputed Land has been extinguished by the adverse possession of Mr Powney senior for at least 12 years from and including 1966. The Applicant, as his father’s immediate successor in title, is entitled to be registered as proprietor of the Disputed Land as sought in his application. I therefore direct the Chief Land Registrar to give effect to the Applicant’s application.

Costs

27.              As to costs, I am minded to make an order under rule 42 of the Adjudicator to HMLR (Practice and Procedure) Rules 2003 for the Respondents to pay the costs of the Applicant in a fixed sum. I direct that by 5 pm on 11 October 2005, the Applicant’s solicitors serve on the Respondents and on the Adjudicator a summary schedule of costs incurred in this dispute since the date it was referred to the Adjudicator. I further direct that by 5 pm on 8 November 2005 the Respondents serve on the Applicant’s solicitors and file at the Adjudicator’s office any written representations as to the following issues:

(a)                whether the Respondents should pay the Applicant’s costs or whether some other costs order should be made;

(b)               how the costs should be assessed and quantified;

(c)                any comments on the amount of costs sought by the Applicant in the costs schedule.

28.              After 8 November 2005, a decision as to costs will be sent out to the parties.

 

Dated this 19^th September 2005

 

 

 

By Order of The Adjudicator to HM Land Registry