REF/2012/1130

PROPERTY CHAMBER LAND REGISTRATION

FIRST-TIER TRIBUNAL

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

(1) NIGEL DAVID HAIGH

(2) CAROLE HAIGH

APPLICANTS

and

SUSAN DIANA STURMAN

RESPONDENT

 

Property Address: Land adjoining 9 Old Orchard Close, Ilton,

Ilminster, Somerset TA19 9HR

 

Title Numbers: WS62353

Before: Judge Owen Rhys

Sitting at: 10 Alfred Place London WC1E 7LR

On: 29 ^th and 30 ^th October 2013

Applicant representation: Mr Edward Peters of Counsel instructed by

Pardoes Solicitors

Respondent representation: Mr Christopher Jones of Counsel instructed by

Battens Solicitors

________________________________________________________________________­__________

D E C I S I O N

__________________________________________________________________________________

Keywords – General boundaries – Filed Plan – Construction of pre-registration conveyance- Boundary agreement - Adverse possession – Land Registration Act 1925 section 75 – Land Registration Act 2002 Schedule 6

 

 

Cases referred to: Neilson v Poole (1969) 20 P & CR 909

Powell v Mc Farlane (1977) 38 P & CR 452

Toplis v Green [1992] EGCS 20 (CA)

Alan Wibberley v Insley [1999] 1 WLR 894

Stephenson v Johnson [2000] EGCS 92

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

Joyce v Rigolli (2004) 1 P & CR DG22

Ali v Lane [2007] 1 P & CR 26

Haycocks v Neville [2007] 1 EGLR 78

Derbyshire County Council v Fallon [2007] EWHC Ch 1326

Strachey v Ramage [2008] 2 P & CR 8

Dixon v Hodgson [2011] EWCA Civ 1612

Cameron v Boggiano [2012] EWCA Civ 157

 

 

THE REFERENCE

1.                   By an application in form ADV1 dated 14 ^th May 2012, the Applicants applied to H.M. Land Registry to remove an area of land from the Respondent’s title ST100794 and to insert it into their own title, namely WS8973, on the basis of adverse possession. The parties are neighbours. WS8973 is the title number of No. 9 Old Orchard Close, Ilton (“No. 9”), and the adjoining property to the north and west is known as 10 Old Orchard Close (“No. 10”) and registered as ST100794. The Respondent objected, and the dispute was referred to the Adjudicator to H.M. Land Registry on 30 ^th November 2012. The functions of the Adjudicator were transferred to this Tribunal on 1 ^st July 2013, but nothing turns on that jurisdictional change.

 

THE TWO TITLES

2.                   Neither title was registered at the time of first sale, namely 1982 in the case of No. 9, and 1983 in the case of No. 10. The Applicants registered their title in 2001, in connection with a remortgage. The title to No. 10 was first registered in 1993. Both title plans show the boundary between the two properties as a straight line, although of course these are general boundaries only and do not purport to be a precise boundary line. The Applicants’ pre-registration title is as follows. By a Conveyance dated 1 ^st November 1982 (“the 1982 Conveyance”) Persimmon Homes (South West) Ltd sold the following property to the Applicants: “ ALL THAT piece or parcel of land situate at Ilton Near Ilminster…….ALL WHICH said piece of land is for the purpose of identification only shown on the plan annexed hereto (hereinafter called “the Plan”) and thereon edged pink and numbered Plot 2 on the Old Orchard Estate of the Vendor….”. The plan referred to is a somewhat crude layout plan, with no stated scale. The boundary with No. 10 (then known as Plot 1) is shown as a straight line running south-westerly from Old Orchard Close to intersect with the rear (southern) boundary line, which (according to the plan) is formed by an existing hedge which runs along the back of the gardens of No.10 and No.9. The conveyance of Plot 1 was effected on 11 ^th February 1983, and the verbal description and Plan are identical in all material respects.

 

THE PHYSICAL APPEARANCE

3.                   When the Applicants bought No. 9, the house was already built and the front garden landscaped (see my findings of fact in paragraph 17 below). No. 10, next door (to the north west), was also complete. In 1982 and 1983 when the houses were first sold, looking south towards Nos. 9 and 10 from Old Orchard Close, their appearance was as follows. No. 10’s garage was integral, that is to say it formed part of the overall footprint of the house, so that the south-eastern flank wall of the house formed the south-eastern flank wall of the garage. Immediately adjacent to the flank wall and garage, south and east, there is a wooden gate which leads into the rear garden of No. 10. There is a drive leading via a dropped kerb from Old Orchard Close into No. 10’s garage, which has a narrow line of shallow kerbstones running along its eastern side. On No. 9’s side there is a front garden, laid to lawn, running to the edge of these kerbstones. This lawn extends across the front of No. 9, as far as the drive leading to No. 9’s garage on the opposite side. There are no physical boundary features at the front of these houses: indeed, the Transfers of No. 9 and No. 10 contain covenants prohibiting the erection of fences or other barriers at the front of the houses. Behind No. 9 and No. 10 there is a party fence that divides their rear gardens. This fence runs down as far as the eastern gatepost of the gate beside No. 10’s garage.

 

4.                   The effect of these various physical features is as follows. At the rear of the houses, the physical boundary is formed by the party fence. The eastern gatepost of No. 10’s garden gate is in line with the rear party fence. The eastern edge of No. 10’s drive, however, is in line with the eastern flank wall of the house and garage. Viewed from above, therefore, the physical delineation between the two properties does not form a straight line. There is a step or dogleg which is formed by No. 10’s garden gate. The apparent physical boundary at the front is formed by the kerbed eastern edge of No. 10’s drive. The rear boundary is apparently formed by the party fence. These do not however line up.

 

THE FILED PLANS AND GENERAL BOUNDARIES

5.                   The filed plans relating to each title show the common boundary as running in a straight line. The line between the rear gardens is solid, indicating a physical feature – undoubtedly the garden fence. At the front, however, there is a broken line, indicating an absence of a fixed physical boundary. The Applicants argue that the legal boundary between the two properties does indeed form a dogleg, following the physical features that I have mentioned. The Respondent, however, contends that the boundary is a straight line, formed by the party fence at the rear and the projection of that line northwards to intersect with the road. The effect of such a line would be to place a strip of land (“the Disputed Strip”), some 1.5 metres wide, currently forming part of No. 9’s front lawn, within the boundary of No.10. The dispute in this case arises from this discrepancy; the Applicants’ adverse possession claim relates to the Disputed Strip. The Land Registry’s Illustrative Plan identifies as the land in dispute this strip of land lying along the front boundary between the two titles. However, it does not follow as a matter of law that the Disputed Strip does actually fall within the Respondent’s title. This is because the boundary line shown on a filed plan is a general boundary only. It is not intended to be a precise delineation, but is more akin to a conveyance plan “for identification purposes only”. As the following passage from the decision of the Deputy High Court Judge in Derbyshire County Council v Fallon [2007] EWHC Ch 1326 demonstrates, a general boundary cannot be relied upon to ascertain the precise line of the boundary:

“The General Boundaries Issue

17. The Adjudicator next considered whether the fact that the disputed strip was included in the filed plan meant that the Fallons had acquired a registered title to it. This is the General Boundaries Issue. Following the decision of the Court of Appeal in Lee v Barrey [1957] Ch 251, which turned on a similar question, he decided this issue in favour of the Council. Since there is no appeal against this, it is unnecessary for me to refer to it in any detail. In short, the effect of the general boundaries rule in rule 278 of the Land Registration Rules 1925 was that when the Fallons’ land was registered, the boundary indicated on the filed plan did not represent the actual boundary of their title and could not be relied on to indicate the precise extent of their land. That could therefore only be determined by looking at where the boundary lay by reference to the pre-registration documents. The Adjudicator therefore concluded that the extent of their registered title is no greater than that of their unregistered predecessors in title and that the boundary of the land is the same as it was following the conveyances to Mr Sharman.”

6.                   In some cases, the discrepancy between the filed plan and the land in dispute is so marked that it cannot be treated as a boundary dispute at all, and cannot be cured by reference to the general boundaries rule. In the present case, however, the discrepancy is relatively minor, bearing in mind the scale and lack of detail of the filed plans, and in my judgment the dispute is clearly a boundary dispute, and not a property dispute. It is possible, therefore, that the Disputed Land lies within the Applicants’ title notwithstanding the position of the general boundary. If, having regard to the pre-registration documents the Disputed Strip actually falls within the Applicants’ ownership, then clearly they have no need to rely on the doctrine of adverse possession. It is only if the Disputed Strip falls within the Respondent’s title that they must have recourse to it. Logically, therefore, before considering the issue of adverse possession, I must first reach a conclusion as to the line of the legal boundary between the two titles. In order to decide where the legal boundary lies, as a matter of registered title, I must construe the 1982 Conveyance, which is the relevant pre-registration conveyance. If, having construed the Conveyance, I take the view that the Disputed Land falls within the Respondent’s title, I must then decide whether the Applicants are able to make out their claim to adverse possession. I should also point out that the Applicants rely on a boundary agreement made in or about 2001 as fixing the line of the boundary, which is a discrete issue. Before considering the relevant evidence, I shall set out the legal framework underpinning both the construction exercise, and the adverse possession issue.

 

THE PRINCIPLES OF CONSTRUCTION

7.                   Both Counsel have cited a number of authorities to me with regard to the correct approach to the construction of property descriptions in conveyancing documents. One of the cases cited by Mr Jones for the Respondent is Toplis v Green [1992] EGCS 20 (CA), and he supplied the official transcript. At the bottom of page 2 of the transcript Butler-Sloss LJ refers to the test as being an objective one, and helpfully summarises the approach as follows: “In taking the objective approach, one looks at the language used in the contract, the content of the plan and in the context the facts relating to the locus in quo, if it is in issue as indeed it is in this appeal, including relevant photographs and the preliminary enquiries. The question, therefore, is: what would the reasonable layman think he was in fact buying?” Mr Jones recognises that the use of the plan in the 1982 Conveyance is qualified by the words “ for the purpose of identification only ” , but submits that this is no reason to disregard the plan altogether. Indeed, he cautions the Tribunal against an approach whereby topographical or other physical features should be preferred to the information contained in the plan, relying on cases such as Cameron v Boggiano [2012] EWCA Civ 157 and Dixon v Hodgson [2011] EWCA Civ 1612. He submits (see paragraph 11 of his Skeleton Argument) that it is only where the plan conflicts with the wording of the parcels clause that the precise wording will prevail over the plan.

 

8.                   For his part, Mr Peters, for the Applicants, submits that the boundaries of the parcel must be determined by reference to “(1) the extrinsic evidence as to the layout of the plots on the ground at the time of the conveyance, and whether the [Disputed Land] would have appeared to an observer on the ground to have been part of No. 9 at the time of Mr and Mrs Haigh’s purchase of it: Wibberley v Insley [1999] 1 WLR 894; Strachey v Ramage [2008] 2 P & CR 8; and (2) the conduct of the parties on both sides of the boundary after the conveyance: Ali v Lane [2007] 1 P & CR 26; Haycocks v Neville [2007] 1 EGLR 78 .” With regard to the reliance on the conduct of the parties after the date of the conveyance, the guidance given by Carnwath LJ at paragraphs 36-38 of his judgment in Ali v Lane must be borne in mind. He identifies the limitations of such evidence, and focuses on the need for the evidence to be of “probative value”.

 

THE LAW OF ADVERSE POSSESSION

9.                   If the Disputed Land is currently within the Respondent’s title, the Applicants argue that they have acquired a title to the Disputed Land by way of adverse possession. The claim is made, formally, under Schedule 6 and section 97 of the Land Registration Act 2002 (“the 2002 Act”). However, since the alleged adverse possession commenced in 1982, they also argue that they had already acquired a title to the Disputed Land under section 75 of the Land Registration Act 1925 (“the 1925 Act”), before the Schedule 6 regime came into force. Under the 1925 Act, 12 years’ adverse possession would have been required, expiring (on the Applicants’ case) in November 1994. Both parties have dealt with the adverse possession claim by reference to both the pre- and post-2002 Act law, and the Respondent (rightly) has taken no point on this. Curiously, it does not appear that the Respondent ever served a NAP counter-notice to the application, invoking the conditions under paragraph 5 of Schedule 6. Broadly speaking, these conditions represent additional hurdles in the way of a squatter seeking to establish title by adverse possession. I shall consider this point further if necessary.

 

10.               There is no real disagreement between Counsel as to the legal requirements of the doctrine of adverse possession. They both cite J.A Pye (Oxford) Ltd v Graham [2002] UKHL 30 and the first instance decision in Powell v Mc Farlane (1977) 38 P & CR 452, which was approved in the Pye case. The essence of a successful claim is proof of (a) exclusive factual possession for the required period, coupled with (b) the required intention to possess. The required period in this case is either 12 years (under the old law), or 10 years (under the 2002 Act regime). It does not harm to repeat the following passages on factual possession and intention to possess, taken from paragraphs 41 and 43 of Lord Browne-Wilkinson’s speech in Pye:

“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.”

 

In Powell’s case 38 P & CR 452……… Slade J reformulated the requirement (to my mind correctly) as requiring 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 reasonably practicable and so far as the processes of the law will allow”.”

THE EVIDENCE

11.               Admissible evidence in this case relates to both issues. Evidence as to the physical circumstances of the site existing at the date of the 1982 Conveyance is, or may be, admissible in relation to the construction of the document. Evidence of the post-conveyance conduct of the respective owners of No. 9 and No. 10 is, or may be, also admissible in relation to that issue, in line with Ali v Lane. Finally, evidence of the Applicants’ use and possession of the Disputed Land is necessary in order to resolve the adverse possession issue. It is likely that the evidence of the neighbours’ conduct in relation to the boundary will overlap with evidence required to resolve the adverse possession claim.

 

12.               I heard evidence from Mr Haigh, one of the Applicants, Mr Bacon and Mr Muxworthy. Mr Bacon is a predecessor in title of the Respondent as owner of No. 10, having lived there between 2000 and 2006. Mr Muxworthy lives at No. 7 Old Orchard Close and has done so since December 1982. The Applicants also rely on the witness statement of Mrs Barker, who lives at No. 8 Old Orchard Close, but for reasons of ill-health was unable to attend the hearing. On the Respondent’s side, she herself gave evidence. However, she accepted that she had no knowledge of the land prior to 2011. The only evidence as to the appearance and user of the Disputed Land from 1982 to 2011, therefore, is derived from the Applicants and their witnesses, although naturally this evidence was thoroughly tested by the Respondent’s Counsel in cross-examination.

 

13.               Mr Haigh’s evidence was to this effect. He could not exactly recall whether the gardens had been turfed when they moved in to No. 9 in November 1982, but either they were already turfed by that time, or very shortly afterwards. It seems that the turf was sourced from Somerset Cricket Club’s Taunton ground. The houses, and No. 10’s drive, were certainly completed before the Applicants moved in. He was also told, by someone who lived in the Close and worked for Persimmon Homes, that the footings of the houses in the Close had been placed in the wrong position by about 1.5 metres. When they moved in, the Applicants planted a rose border along the front of their front garden, all the way up to the edge of No. 10’s drive. He produced a photograph taken in or about 1983 showing the rose border in question. Although they took out the rose border after 5 or 6 years, they continued thereafter to cut the grass and generally maintain the front lawn up to the edge of No. 10’s drive. In around 2002, Mr Bacon, his neighbour and then owner of No. 10, asked him if he could lay a line of paving slaps alongside the eastern edge of his drive. It seems that passengers exiting the passenger side door of his car sometimes had to step onto the lawn in front of No. 9. Clearly this was not very satisfactory at times of wet weather, so he asked if the paving slabs could be paid. Mr Haigh gave permission and the slabs were laid by Mr Bacon, but the Applicants subsequently maintained them by weeding in the gaps. The slabs are still in place. In response to a series of questions in cross-examination, Mr Haigh said that he had never seen people making deliveries to No. 10 walking across the Disputed Land, and he had not seen oil pipes laid across it when oil was delivered to No .10 – the oil tank being situated behind the garden gate. He accepted that from time to time building materials were stored on the Disputed Land – for instance, when building works were carried out to No. 10 – but he said that this was done with his permission. Generally, he said that the Disputed Land was always indistinguishable from the remainder of No. 9’s front lawn, and that no-one apart from the Applicants entered or maintained it. He accepted of course that Mr Bacon and his family did sometimes walk down along the paving slabs, but this was referable to the permission which the Applicants had given.

 

14.               Mr Bacon confirmed the arrangement made with the Applicants regarding the paving slabs, and that they had given him permission to lay and use them. He did say that when he first bought No. 10 he thought that “ technically” the Disputed Land could have been in his ownership, but “the Applicants treated it as if it belonged to them and I was happy for them to do so”. Indeed, all the properties in the Close were laid out in the same way, so that there was a notional strip of land running to the left (looking at it from the road) of each drive, which physically formed part of the neighbour’s front garden but lay to the right of the rear party fence. Mr Bacon told me that this never caused him any problem and he was quite happy to and did treat the Disputed Land as belonging to the Applicants. He was never aware of oil or other delivery men going onto the Disputed Land. The oil delivery driver would walk up the drive with the oil hose and feed it into the tank at the rear. He accepted that it was possible that when the pipe was under pressure, it might straighten up and some part of it might cross the Disputed Land, but he had never seen this happen himself.

 

15.               Mr Muxworthy has lived in the Close since December 1982. He confirmed the evidence of Mr Haigh and Mr Bacon. It was his firm recollection that the front gardens had been turfed by the beginning of December 1982, when he moved in to No. 7 Old Orchard Close. He said that the layout of all the drives and front gardens was the same, so that there was a strip of lawn next to the drives which was not directly in line with the rear boundary fences. Nevertheless these formed part of the front gardens of the houses to the left and it never occurred to him that these strips of lawn belonged to the houses to the right. He himself had always treated the strip of garden to the left of his neighbour’s drive as his own, and this was never challenged. He had never seen deliveries carried over the Disputed Land, nor did he ever see the oil pipes feeding No. 10’s oil tank running across the Disputed Land. He had however seen oil delivery drivers using the drive to access the rear of No. 10 where the oil tank was situated.

 

16.               Mrs Sturman’s evidence related only to the period after she bought No. 10, in May 2011. It cannot therefore directly affect my findings as regards the 29-year period between 1982 and 2011. In her witness statement, she defines the land in dispute as the land “ shown edged red on the attached plan marked SS1 (“the Land”)”. She said that her husband had maintained “ the Land” on occasions since 2011, by cutting the grass. She said that her vendors, Mr and Mrs Atkins, had confirmed to them that the division between No. 9 and No. 10 ran approximately from the rear boundary fence to the lamppost at the front of No. 9, including “the Land”. She also said that Mr Haigh had also informed her that she owned “ the Land” in the course of a neighbourly discussion. She also said that deliveries of oil and coal to No. 10 would go across “ the Land”. In fact, “the Land”, as identified in the plan SS1, is not limited to the Disputed Land (as defined in this Decision). It also includes the area immediately in front of the garden gate to No. 10. The Applicants have never laid claim to this small area, use of which is essential to allow access from the Respondent’s drive to the gate and rear of their property. It is fair to say that the Land Registry originally misunderstood the Applicants’ claim, and considered that they were laying claim to this additional land. However, this was immediately corrected. Nevertheless, the Respondent’s Statement of Case served on 18 ^th February 2013 persists in confusing the “ Notification Land” (being the land edged red on the plan SS1 i.e “ the Land”) with “ the Application Land” (this being the Disputed Land), the contents of the Statement of Case being verified by her separately on 26 ^th April 2013, and again from the witness box.

 

FINDINGS OF FACT

17.               The evidence establishes the following facts as to appearance and possession of the Disputed Land prior to the Respondent’s arrival in 2011. First, I find that the houses, garages and drives had been constructed by the date of the 1982 Conveyance. I also find that the front gardens had been laid to lawn by that date by means of turfing. Mr Haigh, in his witness statement, stated that this was the case, but he was less certain in cross-examination. However, Mr Muxworthy was sure that the gardens had been turfed by the beginning of December, and it seems to me improbable that the vendors would not have completely finished the landscaping works before agreeing to complete. Even if the lawn had not been turfed, the drive to No. 10 had been completed, and the area intended to be turfed at the front of No. 9 (including the Disputed Strip) would have been evident. Second, I find that the Applicants have had exclusive use and enjoyment of the Disputed Land since they purchased No. 9 in November 1982. In the early years they cultivated a rose border which ran across the entire front lawn as far as the edge of No. 10’s drive and effectively enclosed the Disputed Land. After they took the rose border out, they continued to mow and tend the front lawn, which included the Disputed Strip. Third, there has been no use made of the Disputed Land by any other persons, save for the laying of the paving slabs by Mr Bacon, and his and his wife’s use of those slabs to enter and exit the passenger side door of their car. Those activities were carried out after the express permission of the Applicants had been sought and obtained, and therefore amounts to possession by the Applicants themselves. Although Mr Jones, for the Respondent, cross-examined Mr Haigh and the other witnesses on the basis that it was likely or at least probable that delivery drivers – especially the oil tanker drivers – would have walked onto the Disputed Land, or laid the oil pipe across it, no-one had actually seen this happening prior to Mrs Sturman’s arrival, and to my mind it is no more than conjecture. On the contrary, the only oil deliveries witnessed by Mr Muxworthy and Mr Bacon went over the drive itself. Fourth, the Applicants have always regarded the Disputed Land as theirs, as indeed did Mr Bacon, their neighbour, and, by inference, all the other previous owners of No. 10, since no challenge to their possession was ever made. They never had cause to repel trespassers, or to put up notices claiming the land as their own, because they never saw anyone using or entering the Disputed Land without their permission. As far as they, and their neighbours, and other residents of Old Orchard Close were concerned, it was sufficiently obvious that they owned the Disputed Land not to require any action on their part to assert their rights. However, as Mr Haigh said, if anyone had strayed onto the Disputed Land he would have told him to leave. Fifth, once the Respondent arrived in 2011, and after the dispute arose, her husband began to mow the Disputed Land, no doubt in order to reinforce the Respondent’s claim to it. This no doubt resulted in the absurd situation whereby the Disputed Land was mowed by both parties, and its somewhat bedraggled appearance does indeed suggest this. Sixth, I do not accept Mrs Sturman’s evidence (for what it is worth) that Mr Haigh ever acknowledged that the Disputed Land was not his. That is completely inconsistent with the way he had treated the land since 1982. Nor do I accept that Mr and Mrs Atkins ever told Mrs Sturman that they owned the Disputed Land. It is noteworthy that they did not make a statement or give evidence, nor was any potentially relevant conveyancing documentation (such as Pre-Contract Enquiries) disclosed by the Respondent. I am also not impressed by what seems to me to be the deliberate confusion between the Disputed Land and the land identified as “the Land” or “the Notification Land”, contained in her original witness statement and then perpetuated in her Statement of Case. The Applicants have never claimed that the area between the drive and the gate to the rear of No. 10 was in their possession.

 

THE TRUE CONSTRUCTION OF THE 1982 CONVEYANCE

18.               Bearing in mind the authorities cited by Counsel, and the evidence, I shall now turn to the 1982 Conveyance itself. I have already set out the relevant property description, namely: “ ALL WHICH said piece of land is for the purpose of identification only shown on the plan annexed hereto (hereinafter called “the Plan”) and thereon edged pink and numbered Plot 2 on the Old Orchard Estate of the Vendor….” There are essentially two forms of description. First, the address – “ Plot 2 on the Old Orchard Estate”. Secondly, the land edged pink on the plan. I shall take those descriptions in turn. At the date of the 1982 Conveyance, what would “the reasonable layman” have considered to fall within the description “Plot 2”? By that stage, the house, garage and drive were built and the lawn was turfed. I conjecture that a reasonable layman would assume, standing at the front of No. 9, that he was purchasing all the land up to the kerbed edge of the drive. There would be no other visible demarcation of the boundary line. When he walked around the back of the house, however, he would notice that the fence between the rear gardens did not line up with the edge of the drive. However, I do not see that this would cause the reasonable layman to think that the front boundary was intended to be an invisible line running through the front garden, as opposed to the boundary containing a dog leg. Of course, the reasonable layman would also look at the conveyance plan to assist him in working out what was included in the conveyance. The plan, as I have already said, is not drawn to scale, and does not contain a single dimension. Indeed, none of the new houses on the Old Orchard Estate are shown, nor are their drives. The only apparently real physical feature is the hedge running around the perimeter of the site, along the back of Plots 1-6. The lines drawn on the plan, separating the individual plots, do not themselves represent a physical boundary feature, since the lines extend as far as the road, and there are no fences dividing the front gardens: indeed, such fences are prohibited by means of a restrictive covenant. It seems to me that a reasonable person, on comparing the crude plan with the buildings and landscaping as actually built out on site, would conclude that the boundaries were intended to follow the visible features, so that the legal boundary between Plots 9 and 10 is represented by the narrow kerb running alongside the eastern side of the drive leading into the garage of No 10. The fact that this creates a slight dogleg is neither here nor there.

 

19.               If it is considered that there is any doubt regarding this construction, in my judgment such doubts would be resolved by reference to admissible “extraneous evidence” within the guidelines of Ali v Lane. In this context, the evidence of subsequent conduct is of probative value. According to the Applicants, it was not until the Respondent’s purchase of No. 10 in 2011 that their use and enjoyment of the Disputed Strip was challenged. Put another way, this means that for a period of approximately 30 years, the respective owners of No. 10 always treated the Disputed Strip as falling within their neighbour’s ownership. Mr Bacon, in his evidence, said that it might have crossed his mind that “technically” the land belonged to No. 10, but he simply accepted the status quo, namely that the Applicants treated the land as part of their garden, and “ it was obvious the Applicants owned the land”. Indeed, he asked the Applicants for permission to lay slabs on and walk across the Disputed Land, which is the best evidence of his real understanding of the legal boundary. Furthermore, all the properties in the Close were laid out in the same way, and both Mr Muxworthy and Mrs Barker (in her statement) confirmed that it was also their understanding that the edge of the drives formed the legal boundary. As to the Applicants, there is no doubt on the evidence that they have always regarded the Disputed Land as falling within their ownership. Accordingly, it is a fact that the owners on both sides of the disputed boundary have consistently, over a period approaching 30 years, regarded the Disputed Land as lying on the Applicants’ side of the legal boundary. In my judgment, this evidence is of probative value in determining the true construction of the 1982 Conveyance. It strongly supports the view that the true boundary between Plots 1 and 2 is formed by the edge of the drive constructed on Plot 1, so that the Disputed Land was included in the conveyance to the Applicants.

 

WAS THERE A BOUNDARY AGREEMENT?

20.               The Applicants contend, in the alternative, that a boundary agreement came into effect, as between Mr Bacon and the Applicants. They rely on Neilson v Poole (1969) 20 P & CR 909, Stephenson v Johnson [2000] EGCS 92 and Joyce v Rigolli 1 P & CR DG22. Their argument is that when Mr Bacon asked the Applicants for permission to lay the paving slabs on the Disputed Land, he was impliedly offering to draw the boundary line along the edge of the drive, and, by agreeing to the request, they were impliedly accepting his offer. Mr Peters, for the Applicants, draws my attention to the reasoning in Stephenson v Johnson, where acquiescence in the erection of a fence along a particular line was held to create a boundary agreement. Each case will turn on its own facts. In my judgment, the facts relied on in this case – namely, the discussion regarding the paving slabs – does not begin to satisfy the test of a boundary agreement, notwithstanding the generous ambit afforded to such agreements by authorities such as Neilson v Poole. It is placing far too artificial a construction on the arrangement made between these neighbours to regard it as settling the legal boundary. In reality, the boundary was never in doubt, for the reasons given in the evidence before me, and it is not credible to regard the conversation as giving rise to an implied offer and acceptance of the true boundary line. Accordingly, I reject the Applicants’ case on the boundary agreement, although of course I have already found that the Disputed Land was conveyed to the Applicants in 1982.

 

ADVERSE POSSESSION

21.               In the event that my conclusions as regards the true boundary between WS8973 and ST100794 are incorrect, the Applicants’ claim to have acquired a title by adverse possession must be considered. On the basis of the evidence I have heard, I am entirely `satisfied that the Applicants have been in exclusive factual possession (in the Pye v Graham sense) of the Disputed Land since 1 ^st November 1982. Bearing in mind the nature of the Disputed Land – it is simply a strip of grass that is indistinguishable from the remainder of No. 9’s front lawn – the activities of the Applicants upon it are exactly the sort of acts that an occupying owner would carry out. How else could one demonstrate exclusive factual possession of a front lawn upon which no fences or other erections may lawfully be constructed? Furthermore, in view of their entirely reasonable and understandable belief that they owned the land, they had the necessary intention to possess. They specifically authorised the only known third party use of the land, in the form of Mr Bacon’s paving slabs. If this case had to be decided under Schedule 6, manifestly the Applicants would have been able to satisfy the third condition under paragraph 5, that of reasonable belief. However, on the facts, the registered proprietors of ST100794 have held the title on trust for the Applicants, under section 75 of the 1925 Act, since November 1994. They do not need to invoke the 2002 Act at all.

 

CONCLUSIONS

22.               My primary conclusion, for the reasons given, is that the true boundary between the two titles runs along the edge of the drive to No. 10 – in other words, that the Disputed Land actually falls within the Applicants’ title boundary. If I am wrong on this view, and the Respondent is the registered proprietor of the Disputed Land, nevertheless the Applicants are entitled to it by virtue of adverse possession enjoyed since 1982. There are a number of methods whereby the application in Form ADV1 could given effect to. In reality, this is a case – just like Derbyshire CC v Fallon itself – where the general boundary should be re-drawn to be more accurate. I therefore propose to direct the Chief Land Registrar to give effect to the Applicants’ application dated 17 ^th May 2012 by adding the land comprised in WS62353 to the Applicants’ title number WS8973. This will result in the Applicants being shown as proprietors of the Disputed Strip with an absolute title, consistent with my Decision. They should not be registered with a separate, possessory, title to WS62353 for the same reasons.

 

23.               As to costs, I consider that the Respondent ought to pay the Applicants’ costs on the standard basis, although if she wishes to do so, she may file with the Tribunal and serve (on the Applicants) within 14 days, any written arguments in favour of a different order. I direct the Applicants to lodge a Schedule of Costs with the Tribunal, and to serve it on the Respondent within 7 days of the date of this Decision.

 

Dated this 25 ^th day of November 2013

 

 

 

 

BY ORDER OF THE TRIBUNAL