REF/2015/0339/0340

 

PROPERTY CHAMBER LAND REGISTRATION

FIRST-TIER TRIBUNAL

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN

GILLIAN ROSEMARY PAWSON

APPLICANT

and

 

(1) PETER STEPHEN VAINES

(2) ELIZABETH ANN NICHOLS

RESPONDENTS

 

Property Address: Land to the rear of 4 Bray's Hill, Ashburnham, Battle,

East Sussex

 

Title Number: ESX361167

 

Before: Judge Owen Rhys

 

Sitting at: 10 Alfred Place London WC1E 7LR

 

On: 17 ^th December 2016

 

Applicant representation: In person

Respondent representation: Amanda Eilledge of Counsel instructed by Lawrence Hamblin Solicitors

 

_____________________________________________________________________

 

DECISION

_____________________________________________________________________

 

1.                   The Applicant is the proprietor of 3 Brays Hill, Ashburnham, near Battle, in East Sussex which is registered under title number ESX101758 ("No.3"). This is one half of a pair of semi-detached houses, the adjoining house being 4 Brays Hill ("No.4"). The Respondents are the joint proprietors of No.4 which was first registered under title number ESX357884 on 24 ^th April 2014. Both houses lie to the north-west of the road called Brays Hill (also known as Henley's Hill), No.4 being to the west of No.3. Both properties have long and narrow back gardens, which are divided along the boundary by low wooden fencing. The dispute relates to a small piece of land lying at the end of No.4's back garden, which is fenced off from the remainder of the garden and is enclosed within the garden of No.3. I shall refer to it as "the Disputed Land". On 25 ^th September 2014 the Applicant applied to the Land Registry in form ADV1 to be registered with a possessory title to the Disputed Land on the basis of more than ten years' adverse possession, an application made under Schedule 6 of the Land Registration Act 2002 ("the 2002 Act"). The Respondents objected to the application by serving a counter-notice in form NAP dated 14 ^th January 2015, requiring the Applicant to fulfil one of the conditions under paragraph 5 of Schedule 6. The dispute was referred to this Tribunal on 13 ^th May 2015. The reference came on for hearing before me on 17 ^th December 2015, with a site visit on the previous afternoon. The Applicant represented herself, and the Respondents were represented by Ms Amanda Eilledge of Counsel. I heard evidence from Mrs Pawson herself, and from the Second Respondent ("Mr Vaines").

 

2.                   It appears that the Applicant originally lodged applications in form AP1 and FR1, on the grounds that she had already acquired a title to the Disputed Land by adverse possession prior to the coming into force of the 2002 Act on 13 ^th October 2003. However, these were rejected by the Land Registry on the basis that the land was registered as at the date of the application. The matter has therefore proceeded under Schedule 6 of the 2002 Act. I shall consider the implications of this procedure in due course, but for present purposes I shall deal with the application by reference to the 2002 Act. This requires the applicant to demonstrate adverse possession for a period of not less than 10 years ending on the date of the application. Adverse possession requires proof of (a) exclusive factual possession, coupled with (b) an intention to possess, as those terms were explained in the leading case of J.A Pye (Oxford) Ltd v Graham [2002] UKHL 30.

 

3.                   The background to the dispute is as follows. On 16 ^th May 1975 Mr Vaines purchased No.4 - according to him, as an investment and occasional holiday home. On 7 ^th February 1977 he transferred it to his mother, Irene Joan Vaines ("Mrs Vaines"). On 11 ^th September 1984 the Applicant and her then husband purchased No.3. By deed dated 11 ^th June 1987 Mrs Vaines made a gift of No.4 to her children (the Respondents). On 29 ^th March 1990 the Applicant was registered as sole proprietor of No.3, I believe as part of the arrangements made on her divorce. According to her evidence, she entered into possession of the Disputed Land in the summer of 1990, and fenced the area within her own garden boundaries no later than October 1990. She states that she has been in exclusive factual possession of the Disputed Land since that time. The Respondents' parents died prior to 2011. In that year the First Respondent ("Mrs Nichols") began to ready No. 4 for letting, and instructed a gardener to clear the garden. Since the fence enclosing the Disputed Land was then in place, it seems the gardener cleared the garden up to the fence and did not enter the Disputed Land at all. In 2014 the Respondents applied for first registration of No.4, at a time when physically the Disputed Land was not included within the boundaries of No.4. The Applicant's application was made in September 2014.

 

4.                   It is fair to say that the Applicant's case has evolved since the initial application. In the Statement of Truth that accompanied her ADV1, she described the material facts as follows: " The end garden to 3 Brays Hill was a small pond. There was also an area of overgrown and unfenced land alongside ("the additional land"). In September 1990 I fenced in the bottom of 3 Brays Hill and included the additional land which I now know is registered under the title of 4 Brays Hill.....No objection or complaint was received from Mr and Mrs Vaines or their children and until now no one has laid claim to the additional land or raised issue with my occupation of it." In her Statement of Case dated 18 ^th June 2015, she said this : "6. In October 1987 a hurricane felled many trees at the bottom of both gardens, including several which obstructed the garden at No 3. The Applicant cleared ALL the fallen trees as it was apparent that the garden to No 4 had long been abandoned. From the time the Applicant purchased No 3 Brays Hill in 1984 to Autumn 2011, the garden to No 4 was only maintained to about the top third of its length, the remainder being left to impenetrable brambles and shrubs..... 7. In August 1990, as the land remained abandoned, the Applicant commenced enclosing it (marked A,B,C on the Plan)."

 

5.                   In their Response, the Respondents drew attention to an email which the Applicant had sent to Mrs Nicholls in June 2014, which contains the following passage: " There is an area of approximately 20 ft wide X 50 ft long which was gifted to me by Irene and Albie in 1980 as they did not want the bother of maintaining it (and I had expressed an interest in buying it). This was in recognition of my help in looking after No 4 in their absence for many years and maintaining the whole garden (I actually grazed my goats there at their request to save them paying for someone to cut it)." In her witness statement dated 22 ^nd September 2015 her evidence was as follows: " 5. In July of 1990, the area remained unfenced to the field boundary, untended and overgrown. I therefore inquired whether it would be ok for me to acquire the land and, with the verbal permission of Irene Vaines, I enclosed the bottom 50ft of the garden to No 4 by erecting, successively, chainlink fencing (in August 1990), larch lap fencing (in September 1990) and close-boarded fencing (In October 1990) and incorporated the land into my own garden............ 6. Form [ sic] August 1990 I regarded the disputed land as my own........ At the time Mrs Vaines gave me permission to be the new owner of the land, I assumed she was still the owner of No 4."

 

6.                   Unsurprisingly, the Applicant was subjected to thorough cross-examination on her statement, and challenged with regard to these previous somewhat different formulations of the case. In particular, the failure to mention the fact that she had entered the Disputed Land with the knowledge and consent of Mrs Vaines, a potentially fatal element in a claim to adverse possession. In her oral evidence, she confirmed that she had had a conversation with Mrs Vaines regarding the Disputed Land. According to her, Mrs Vaines had said that she and her husband never used the land, and that the Applicant could have it. She erected the fence shortly afterwards, and then constructed the pond, and nothing was ever said by Mrs Vaines subsequently as to taking the land back. As far as she was concerned, from that time onwards she was the owner of the Disputed Land.

7.                   She did not have any very convincing explanation for the failure to refer to the alleged gift in her original ST1 or Statement of Case. However, having seen and heard her oral evidence, I am satisfied that events unfolded as she eventually described in her email and witness statement. Accordingly, I find that Mrs Vaines purported to "give" the Disputed Land to the Applicant in the summer of 1990. She then entered into possession of the Disputed Land, fenced it within the confines of her own garden, and generally dealt with the Disputed Land since that date as a true paper owner would do. Although the Applicant was quite properly put to proof of her acts of possession - bearing in mind that the Respondents had no actual knowledge of the Disputed Land and its use until recently - I do not think her evidence was or indeed could be seriously challenged. She had produced various photographs to establish the construction of the fence in 1990, and the subsequent creation of the pond. Initially the Respondents were doubtful about the accuracy of the dates, but they were eventually satisfied that the photographs were accurate.

 

8.                   The Respondents also relied heavily on an email written by the Applicant to Mrs Nichols in 2011, offering to buy part of the garden to No.4. The area was identified as " around 80-100ft from the rear down to the bottom." The Respondents argues that this must have included the Disputed Land, and therefore demonstrated that the Applicant could not have believed that the land had already been given to her. The Applicant's evidence was that the area of land she had in mind was an area which ended at the fence enclosing the Disputed Land. She said that the rear gardens are very long - a fact apparent on inspection - and an area of 80 to 100 feet terminating with the fence would still leave a reasonably-sized rear garden available for No.4. She denied that she was offering to buy land which she considered to have been given to her some ten years earlier. Having heard her explanation, and in view of the size and appearance of the site, I am unable to accept the Respondents' interpretation of this offer.

 

9.                   On the basis of all the evidence, I find that the Applicant entered into exclusive factual possession of the Disputed Land no later than the end of 1990. She had erected a fence that separated the Disputed Land from the garden of No.4 and thereafter treated it as part of her garden. There could be no clearer manifestation of exclusive factual possession. Furthermore, these actions support her evidence that she understood that Mrs Vaines had given the land to her. The erection of a substantial fence and the subsequent landscaping of the Disputed Land together with the adjoining piece belonging to the Applicant, to create one combined area, is entirely consistent with a shared belief that the Disputed Land had been permanently alienated by Mrs Vaines.

 

10.               The Respondents argue that the Applicant's possession was never "adverse", in that (even on her own case) the Applicant entered the land with the express permission of Mrs Vaines. Ms Eilledge cites para 33.043 of Ruoff & Roper in support. It is settled law that possession pursuant to a licence from the paper title owner is not adverse possession - on the basis that the licence would have to be terminated before an immediate right to possession arose. Hence, the limitation period never runs in favour of a licensee. It is the Respondent's case that the Applicant entered the Disputed Land, and remained there, under the terms of a licence given by their agent, Mrs Vaines.

 

11.               There was no evidence that the Respondents were ever informed of the gift made by Mrs Vaines. It seems that they were even unaware that the Applicant had fenced off part of their garden until this dispute arose. They applied for first registration of the whole, even though they were not in fact in possession of the Disputed Land, in ignorance of the existence of the Applicant's fence. Ms Eilledge, for the Respondents, argues that Mrs Vaines had implied authority to allow the Applicant to enter the Disputed Land. The Respondents' parents were the only people to visit No 4, albeit only occasionally, and in effect they "managed" the property on behalf of their children, the paper title owners. In that capacity, she argues, they would have had sufficient authority to allow the Applicant to use part of the garden of No 4. An express licence was therefore granted, alternatively a licence from the paper owners can be inferred on the facts of the case. On this basis, the Applicant's possession was not adverse within the meaning of Schedule 6 of the 2002 Act.

 

12.               I cannot agree with this analysis. In the present case, there is no evidence to support the submission that Mrs Vaines had authority to permit the Applicant to enter the Disputed Land. There is the known fact that Mrs Vaines was the mother of the paper title owners, and that she visited No. 4 on an irregular basis. Beyond that, nothing is known, other than the fact that the Respondents were not told of the gift to the Applicant, and remained unaware that the Disputed Land had been hived off from the remainder of No.4's garden. Evidently no discussions ever took place between Mrs Vaines and the Respondents regarding the Disputed Land or the Applicant's occupation of it. In the circumstances, I do not see that there is any material to establish any express or implied authority given by the Respondents to Mrs Vaines to allow the Applicant to enter the land. Even if it might conceivably be inferred that Mrs Vaines had the Respondents' authority to permit a neighbour to enter for some limited purpose - to mend a fence, for example, or to repair some guttering on the boundary - I cannot see how this can be extended to an authority to give away part of the land, by authorising a neighbour to fence it off and treat it as her own. Indeed, the Respondents themselves are compelled to argue that they are not bound by the gift. This issue arises in the context of the estoppel claim put forward by the Applicant, in order to satisfy the relevant condition under paragraph 5 of Schedule 6. They say that they are not bound by any representation made by Mrs Vaines that the land belonged to the Applicant because, as I understand it, such a gift would exceed Mrs Vaines's authority. Ms Eilledge referred me to the well-known case of Crabb v Arun DC [1976] Ch 179, especially page 193C-F. In my judgment, the "gift" by Mrs Vaines - albeit that it was ineffective to transfer the legal estate as a matter of law - was not permission given to the Applicant by the paper title owner, and did not create a licence to occupy. The Applicant was, as against the Respondents, a trespasser from the moment that she entered the Disputed Land.

 

13.               I have found that the Applicant was in exclusive factual possession of the Disputed Land from late 1990 onwards, without consent. In order to satisfy the requirements of an adverse possession claim, she must also prove that she had the necessary intention to possess. In my judgment, she clearly had a sufficient intention to possess, indeed she believed that she was the owner and continued to do so for many years. Her actions are entirely consistent with that belief.

 

14.               I therefore find that the Applicant entered into adverse possession of the Disputed Land by the end of 1990. No.4 was an unregistered title until 2014. Under the provisions of the Limitation Act 1980, the Applicant had barred the Respondents' title to the Disputed Land no later than the end of 2002, prior to the commencement of the 2002 Act in October 2003. Although initially the Applicant applied to close the Respondents' title as regards the Disputed Land, the Land Registry rejected it, and required an application to be made under Schedule 6 in form ADV1. In view of my findings, it is clear that the Respondents should not have been registered with title to the Disputed Land when they applied in 2014. However, the Applicant has been compelled to apply under Schedule 6, and in view of the NAP counter-notice she must satisfy one of the conditions stipulated in paragraph 5. She relies on the estoppel condition, which may be problematic given the findings that I have made as to the extent of Mrs Vaines's authority. However, there is another condition available to the Applicant, namely that she is entitled to be registered as proprietor of the Disputed Land "for some other reason". This is the second condition under paragraph 5. In Cooper and Cooper v Gick [2008] EWLandRA 2007_0103 (25 March 2008), Michelle Stevens-Hoare QC (sitting as a deputy adjudicator) held that the condition applied where an applicant had already enjoyed 12 years' adverse possession of unregistered land which subsequently became registered. That is precisely the situation that applies in this case, and Ms Eilledge has very fairly accepted that the Cooper v Gick decision enables me to follow the same course, and amend the application (to the extent of the applicable condition) and grant relief under the second condition.

 

15.               It follows that I shall direct the Chief Land Registrar to give effect to the Applicant's application in form ADV1 dated 25 ^h September 2014. I see no reason why the Respondent should not pay the Applicants' costs, if any. If she wishes to claim any costs as a litigant in person she should serve a statement of costs, with vouchers, both on the Tribunal and the Respondents, no later than Friday 12 ^th February 2016. Any objections to those costs, or to the principle that the Respondents should pay these costs, must be filed and served no later than Friday 19 ^th February 2016.

 

Dated this 1 ^st day of February 2016

 

 

 

BY ORDER OF THE TRIBUNAL