REF 2005/1168

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

BETWEEN

(1)   ARISTOTELIS KLEANTHOUS

(2)   SOFOULLA KLEANTHOUS

 

 

Applicants

And

 

 

THE LONDON BOROUGH OF BARNET

Respondent

 

 

Property Address: Land adjoining 34 Newlands Place, Barnet, Hertfordshire

Title Number AGR138792 (Pending)

 

 

 

Ann McAllister (Deputy) Adjudicator to HM Land Registry

Procession House

3 November 2006

1 December 2006

 

Representation: Jacqueline Rubens instructed by Saul Marine & Co for the Applicants; Edward O’Bree, Borough Solicitor, London Borough of Barnet

 

DECISION

__________________________________________________________________________

 

Adverse possession – whether user permissive – whether factual possession and intention to possess established – whether title was acknowledged under ss 29 and 30 of the Limitation Act 1980 – effect of squatter being secure tenant and subsequently exercising right to buy – J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419; Tower Hamlets v Barrett [2006] 1 P&CR 9

 

 

 

 

 

Introduction

 

1.                  The issue in this case is whether the Applicants (‘Mr and Mrs Kleanthous’) have acquired title by adverse possession to a plot of land (‘the disputed land’) behind 34 Newlands Place, Barnet. The plot is about 0.08 acres in size (measuring some 25m by 15m) and is within a very much larger area of land known as Bells Hill Allotments. This allotment is one of 49 such sites owned by the London Borough of Barnet (‘the Council’) occupied in total by some 5-6,000 tenants.

 

2.                  On 8 February 2005 Mr and Mrs Kleanthous applied for first registration of the disputed land. A caution against first registration had been lodged by them on 13 September 2003. The matter was referred to the Adjudicator by the Land Registry on 20 July 2005.

 

 

Background

 

3.                  The Barnet Urban District Council purchased what is now known as the Bells Hill Allotments by a conveyance dated 14 April 1921 (‘the 1921 Conveyance’). The land conveyed excludes a semi circular area of land which cuts into disputed land and, it seems, a strip of land at the eastern end of the disputed land.

 

4.                  Thus the Council are able only to establish paper title to approximately 80% of the disputed land. It is not clear why the semi circular area was excluded: it may once have been a pond forming part of the wasteland of the manor. In any event I have little doubt from the evidence I heard that the Council acquired title by adverse possession of all that land outside the 1921 Conveyance some considerable time ago, and accordingly have better title to that land unless Mr and Mrs Kleanthous can in turn show that they have dispossessed the Council for the requisite period. The entirety of the Council’s title remains unregistered.

 

5.                  Mr and Mrs Kleanthous occupied 34 Newlands Place as secure tenants of the Council between 1990 and 1999. On 6 December 1999, pursuant to the statutory right to buy, they purchased a leasehold interest. The lease is for a term of 125 years from 1 July 1999. That title is registered under title number AGL74367.

 

6.                  On 12 January 2004 the Swansea District Land Registry wrote to Mr and Mrs Kleanthous’ solicitors following a survey of the disputed land. Two points were made in the letter. The first is that acts carried on the land appeared to be limited. This is essentially a question of fact to be determined in the light of all the evidence I have heard.

 

7.                  The second point is that, in any event, Mr and Mrs Kleanthous were (it is said) occupying the disputed land between 1990 and 1999 as tenants of the Council and accordingly such occupation was for the benefit of the Council and was simply an accretion to the tenancy. Such rights as might have accrued by 1999 were accordingly surrendered when the secure tenancy was brought to an end. This raises a point of law, and I will refer to this below as ‘the tenancy point’.

 

8.                  I have had the benefit of a site view. The disputed land is separated from 34 Newlands Place by an alleyway (used in the main to store bins) some 2’ to 3’ wide running north to south down the side of the building of which 34 Newlands Place is the top floor flat. There is a close boarded fence between the alleyway and the disputed land. The Council contractor (who gave evidence) put an extra chain link fence to stop children climbing into the disputed land.

 

9.                  There is a gate in the north east corner of the disputed land leading to 57 Sutton Crescent. I accept that this gate has never been used and is now blocked off by trees and nailed shut. There is a close boarded fence running along the length of Sutton Gardens (the northern end of the disputed land) precluding access from the Gardens.

 

10.              Access to the disputed land is through large (locked) gates separating the allotments from Newlands Place. These gates are to the south west of the disputed land. They were erected in 1993 when the perimeter fence was also erected.

 

11.              Mr and Mrs Kleanthous erected some fencing around the disputed land. This is not complete either on the south side or the western side. On the south side there is a palisade 1 metre or so high which stops well short of the south east corner of the disputed land and which also leaves a (smaller) gap at the western corner. A water trough and stand pipe are just south of the gap at the eastern end. There is then a further fence on the western side of the plot on either side of a large oak tree. This fence does not run the length of the western boundary.

 

12.              The disputed land is used, it seems to me, more as a garden than an allotment (although I add that the distinction between the two may not always be clear and note that the Council’s Greenspace Development Officer, Mrs Saywer, was of the view that the land is used and has always been used as an allotment). There are two sheds (one measuring 8’ by 6’, the other 6’ by 4) and a greenhouse. It is possible to see the remains of a concrete base which may once have been a building (and indeed appears to be shown as such on the 1964/5 ordnance survey plan.) It is in part cultivated, and vegetables are grown in two vegetable beds. There is also an uncultivated area at the western end. There are a number of tables and chairs.

 

13.              The disputed land has been referred to as plot 1A. It is clear, however, both from the documentary evidence and the evidence given on behalf of the Council that this numbering is inaccurate. Plot 1A lies to the south west of the disputed land and to the west of the trading hut /storage building which was erected in 1993. It is currently not cultivated. I should also add that a considerable area of land to the west of the car parking area is also not cultivated (although it is in the process of being cleared and prepared for a number of new tenants).

 

 

 

 

Evidence

 

14.              On 20 May 1990 Mr Kleanthous wrote to the Council complaining about the smell from and rubbish on the disputed land. This letter was in fact written by Mr Kleanthous’ daughter on his behalf. It describes the land as a rubbish tip, swarming with flies, wasps and mosquitoes. In pithy terms it was described as ‘looking like a jungle and smelling like a sewer’. The letter went on to say that the smell was offensive and intrusive and asked for help dealing with the problem. In evidence he said that this letter was in fact written on behalf of the four tenants occupying the property.

 

15.              There was no reply to this letter. Another letter was written on 15 August 1990. The problem had got worse. Discussions with the allotments committee revealed that the Council did not have the funds to deal with the problem. The letter then says: ‘ With the permission of the committee my wife and myself with the help of our daughters proceeded to clear the area of rubbish/bushes in the hope that we will alleviate the problem’. The letter concluded by saying that there was still a lot to be done and that they could not afford to pay for the removal of rubbish on such a scale.

 

16.              Cross examined about this, Mr Kleanthous said that he had spoken to someone who had asked him what he was doing with the land. He answered that he had come to clear it but not to take it. He was told that the Council did not own the land. This was borne out by a plan he was shown which showed that the disputed land had not been given a number. He was given what he called ‘talking permission’ by this man who told him to go ahead since the land belonged to no-one and was, he said, unregistered.

 

17.              I accept that the person he spoke to may very well have checked the plot on a plan and found it un-numbered but I do not accept that the representative of the committee would have said that the land was unregistered and belonged to no-one. I cannot see how he could have had such information (which was partially wrong in any event) nor how he could have seriously have doubted that any of the land within the perimeter of the Bells Hill allotment was not owned by the Council. The allotment committee were not concerned, I imagine, with the ownership of the land: its remit was the allocation of the allotments.

 

18.              I have no reason to doubt that Mr Kleanthous and his family set about both clearing and tidying the land, fencing it and cultivating it. The two sheds and the greenhouse which are still on the land today were erected in the summer of 1990. The fence on the south side was left with a gap at the end to allow a tractor to collect rubbish (glass, tyres etc) and because, Mr Kleanthous said, he did not have enough money to complete fencing.

 

19.              I also accept that, with the exception of one person who tried to dump rubbish on the land early on (and with the exception of Mr O’Leary the Council contractor who asked him whether he could work on the fence from the disputed land ) no-one came onto the land without permission (until very recently, when Mrs Sawyer, took over the management of this and the other allotments).

 

20.              Initially there was no water supply, but at some point a stand pipe and tank were placed at the western end of the southern fence line (near the opening referred to above). Then another hose pipe was placed on the land using water from 34 Newlands Place and an electricity cable was run externally to one of the sheds. Mr Kleanthous also installed a telephone in the shed to enable him to stay in contact with his disabled wife. His sheds contain much of what one expect: an electric mower, tools, tables, chairs, a small camping gaz and a fridge. He has barbecues on the land. People visit him from the allotments and elsewhere.

 

21.              Access to the allotment site and to the disputed land was open until 1993. In 1993 the Council contractor replaced the outer perimeter fence and gates. A new trading shed and car park were built at the same time. The gates were locked by a padlock. At first, and for possible as long as two months, Mr Kleanthous and his family could not gain access to the disputed land. He then said that he talked to people and explained (in, I think, forceful terms) that he worked on the land, and he was given two keys by the person who ran the allotments. His evidence is that he paid £10 for the keys.

 

22.              The next relevant date is 1996. There are two documents dated 15 January 1996. The first is written on letter headed paper, bearing the title Bells Hill Allotments. (the date, I should add, was obviously added at a later stage). The letter is written by the (new) Secretary, Simon Mansell. It begins by saying that as the newly elected secretary for the Bells Hill allotment he is compiling a list of members in order to update records. The letter (which is plainly a pro forma letter) then says in terms: ‘According to current information you are a plot holder at Bells Hill but in order to be certain I would be grateful if you would fill in the form and return it to me at the above address.’

 

23.              Mr Kleanthous filled in the form. He wrote his name and address, his telephone number and gave the plot the number 1A. He then signed it.

 

24.              His evidence on this point was that this form was filled in so as to allow him to use the store. He says that he told Mr Mansell that he did not want an allotment and that he did not know what an allotment was. Mr Kleanthous had never been on plot 1A and had never cultivated it. He was asked to put this number in simply so that he could use store.

 

25.              I accept entirely that he never cultivated or used plot 1A, and I suspect this number was put on the form simply to assist Mr Mansell in keeping some kind of record. I do not accept that Mr Kleanthous did not know what an allotment was (not least because he refers to ‘allotments’ in subsequent correspondence). I do accept that he believed that this paper would entitle him to use the store and would act as some kind of membership card but I believe the matter goes further , and that Mr Kleanthous believed that this document would give him some rights in relation to the use of the disputed land.

 

26.              The second document is headed ‘London Borough of Barnet Application for Allotment Tenancy’. This was not compiled by Mr Klenathous (and indeed it seems from the form that it could only be completed by the secretary). Again the plot is given number 1A. Mr Kleanthous is named as the applicant. The document is also dated 15 January 1996 and is signed by the secretary. The date of commencement of the tenancy is given as 1 February 1996. The poleage (the measurement upon which the rent is based) is given as 10. There is then a comment: no rotavating required. The rent is noted as being £11 (under the 62+ category) and the payment for water is £7 giving a total of £18.

 

27.              Mr Kleanthous accepts that he paid the money. He told me that he understood this to represent a payment for the keys (new keys were provided at about this time) and for some purchases from the store. Notwithstanding his evidence on this, I have no reason to doubt the accuracy of this document. It was intended as an application for a tenancy and records the payment of rent. He also told me that he only saw this document for the first time at or just before the hearing. I do not accept this part of his evidence, but I suspect that the document may simply have been forgotten by him. In any event (for reasons which remain unexplained) it did not lead to any tenancy agreement being entered into with the Council, and none being sent to him until 2005 when Mrs Sawyer took over the running of the allotment.

 

28.              In November 1997 solicitors then acting for Mr Kleanthous wrote to the Council inquiring whether the disputed land belonged to the Council and putting them on notice of his occupation of it. The Council’s substantive reply is dated 20 April 1998. They made the point that Mr Kleanthous completed an allotment tenancy application on 15 January 1996 and stated that the land belonged to them pursuant to the 1921 Conveyance. Further correspondence took place, and the Council accepted that Mr Kleanthous did not, in fact, sign a tenancy agreement.

 

29.              Mr Klenathous wrote (or rather his daughters wrote for him) on 16 September 1998. This letters set out the events from 1990 and states that no yearly fee has ever been paid. Curiously he says this: ‘The reason for the signature [on the 1996 form] was when the new secretary Mr Seymour took over he offered to give me one more plot and offered me no A1. This plot does not exist as it is used for a car park and store.’ 1A does exist, of course, and it is not part of Mr Kleanthous’ case now that he was offered another plot.

 

30.              There is an internal memo dated 2 October 1998 which rightly points out that he has not occupied the land for 12 years and asking whether the position should be regularised by offering him a tenancy. In March 1999 Mr Kleanthous wrote saying that he was proposing to exercise his right to buy and to purchase the disputed land if the Council could prove they owned it. The Council replied saying that he did not have an automatic right to buy land adjacent to his flat. In June 1999 the Council wrote a further letter asking him to vacate the land immediately.

 

31.              There was then a meeting on 9 August 1999 between Mr Nash of the Council, Mr Kleanthous and other allotment holders. The note of this meeting states that Mr Kleanthous’ position was that he would withdraw his claim for possession if the Council could prove title. He then suggested buying the land (under the right to buy scheme) or having a tenancy. Mr Nash took the view that the flat had been valued as a flat only and that the land did not form part of his tenancy.

 

32.              On 17 August 1999 Mr Kleanthous wrote a lengthy letter. The tone of the letter is (perhaps understandably) one of frustration and impatience. It says this: ‘ In reply to your letter I would like to point out that you were wrongly advised. I am occupying the mentioned piece of land legally with permission of the previous secretary named Mr Allen and his committee chairman who has unfortunately died since then, Since 1990 I have also attended several committee meetings, furthermore I have in my possession two sets of keys which we paid for.’

 

33.              It then says: ‘If you can prove legally that this piece of land belongs to the Council through the courts with myself present at the hearing I suggest the following:

1)      since I am in the process of buying the flat from the council which is adjacent to the mentioned land and if this land is not an allotment but a piece of council land I would like to purchase it

2)      if this land is an allotment I would like to remain as a paying tenant for the simple reason that I wish to keep it clean and tidy and not as a refuse tip as was my original purpose all those years ago.

 

34.              The letter also said this: ‘The only thing they could inform me during our correspondence was that the allotments belongs to the Council from 1921 and are unregistered. We do not dispute this but at the same time according to the land registry the piece we are occupying does not have any deeds under any name.’

 

35.              In evidence Mr Kleanthous explained that he would have moved out if he had known that the land belonged to the Council. In his words ‘ he did not want to do anything wrong, but only to make the land nice.’ This is consistent with what he seems to have said at the meeting on 9 August 1999 and with his subsequent letters.

 

36.              On 23 January 2002 the Council served a notice to quit on Mr Kleanthous under section 1(1)(a) of the Allotment Act 1922. This was followed by a further letter requiring him to keep the allotment clean, weed free and in a state of cultivation and fertility. Whatever else might be said of Mr Kleanthous’ occupation of the land, I do not see that it could ever be said that he did not look after the land.

 

37.              In March 2005 the Council sent Mr Kleanthous a tenancy. He did not enter into the tenancy agreement.

 

38.              On behalf of the Council I heard evidence from Mr and Mrs Petch and Frieda Kirk, as well as from Mr O’Leary (the contractor) and Mrs Sawyer. The evidence of Mr and Mrs Petch and Mrs Kirk is of historical, rather than contemporary, relevance. It does however make it clear that the disputed land was occupied by allotment holders and therefore (in so far as it does fall within the 1921 Conveyance) clearly adversely possessed by the Council. For the avoidance of any doubt it seems to me clear in any event, given the position of the disputed land, that it plainly formed part of the site.

 

39.              It is clear from their evidence that the disputed land (or part of it: there was some understandable imprecision on this point) was at one time used as a piggery and thereafter, although within the boundary fence of the allotments, was in effect allowed to grow wild. There were brambles, concrete, and, it is said, some rubbish. Mrs Kirk remembers a pond.

 

40.              Mrs Petch also explained that some time ago the Council operated a system whereby plot holders were given a card which entitled them to buy from the trading hut at a discount and confirmed that when the keys were changed (presumably in 1996) everyone had to pay £5 each.

 

41.              I then heard from Mrs Sawyer. As stated above she took over the management of the allotments only from April 2005 onwards, although prior to that she assisted the previous manager. She explained that the committee had, as she put it, fizzled out over the years. Whilst the committee could submit an application, the tenancy agreements (all in standard form and all from year to year) were sent out by the Council. The document headed ‘Application for Allotment Tenancy’ referred to above is held by them as part of their records. This document is never signed by the putative tenants.

 

42.              Mrs Sawyer frankly admitted that there were faults in the way in which the allotments were managed; rent was often not collected and no steps were taken to evict tenants in breach of their agreements.

 

43.              It also became clear in the course of her evidence that Mrs Sawyer had assumed (wrongly as it turns out) that because the documentation refers to Mr Kleanthous as having occupied Plot 1A he must have done so sometime in the past, and subsequently moved to the disputed land.

 

The issues

 

44.              No proceedings for possession have been brought against Mr and Mrs Kleanthous by the Council. The issue is therefore whether at any time since 1990 there is a period of 12 years during which Mr and Mrs Kleanthous were in possession of the disputed land to the exclusion of the Council.

 

45.              The following questions seems to me to arise from the evidence:

1)      were Mr and Mrs Kleanthous occupying the disputed land with the permission of the Council?

2)      If not, were they in factual possession of the disputed land and did they have the necessary intention to possess?

3)      If so, did they at any time acknowledge the Council’s title within the meaning of section 29(2) of the Limitation Act?

4)      If not, what, if any, is the effect of the fact that a) they were secure tenants until 1999 and b) become long leaseholders of 34 Newlands Place thereafter?

 

Permissive user

 

 

46.              There is no doubt that if an occupier is in possession of land with the owner’s consent he has not dispossessed the paper owner or taken possession for the purpose of the Limitation Act (see, for instance, JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 36-37).

 

47.              In Batsford Estates v Taylor [2005] 2 EGLR 12 the Court of Appeal cited with approval the test formulated by Etherton J in Lambeth London Borough Council v Rumbelow (unreported) namely: ‘ In order to establish permission in the circumstances of any case two matters must be established. Firstly, there must be some overt act by the land owner or some demonstrable circumstances from which the inference can be drawn that permission was in fact given. Secondly [it must be established that] a reasonable person would have appreciated that the user was with the permission of the land owner’

 

48.              It seems to me plain that these tests were satisfied in this case. It is clear from the evidence that Mr Kleanthous obtained what he described as ‘talking consent’ from the allotment secretary or representative in 1990.

 

49.              It my judgment (and this is not disputed) this amounted to consent given on behalf of the Council for Mr Kleanthous to occupy the disputed land. I have already said that I do not accept that the person giving consent also told Mr Kleanthous that the Council did not own the land. Even if this was said, it would not, in my judgment, affect the consent given. It is equally not relevant, in my judgment, that the speaker did not treat the land as one of the numbered allotments. Consent was given to clear and then occupy the land.

 

50.              Nor was the consent revoked because it was not followed by a written tenancy agreement. Ms Rubens argued that the consent given was conditional on entering into a written agreement: since no agreement was entered into, the consent was withdrawn. This seems to me to confuse consent sufficient to negative adverse possession with the grant of some interest in the land. Occupation can (and often does) remain consensual (and therefore not adverse) even if the owner does not choose (for whatever reason) to grant a tenancy or licence.

 

51.              The consensual nature of Mr Kleanthous’ occupation is emphasised by the fact that in 1993 (albeit after a delay of possibly two months) he was given keys to the allotments. These were not given to him so that he could have access generally to the site but because he had made it clear that he was determined to continue using the disputed land. Since that time he has remained in possession of keys to the main gate.

 

52.              The form signed by Mr Kleanthous in 1996 can only be read as a clear statement that Mr Kleanthous was considered (and considered himself) to be a plot holder occupying with the consent of the Council. It was followed by an application made by the secretary of the committee for a tenancy. As I have found, rent was paid. There is no explanation as to why no further steps were taken at this stage to grant a tenancy.

 

53.              Confusion may have been caused by the (inaccurate) description of the disputed land as plot 1A. But the fact that the disputed land did not, it seems, have an allocated number was not in itself a reason for a tenancy not to be granted, and indeed in 2005 the Council sent Mr Kleanthous a tenancy agreement. It also follows, therefore, that there is no force in the point that the plot was not an allotment plot (and I have to say that even if it were not such a plot, the issues would be the same).

 

54.              Finally, on this point, it seems to me that the best evidence of the permissive nature of the occupation is to be found in the letters written by Mr Kleanthous (or his daughter on his behalf). I do not accept the argument that because the letters were written by persons without legal background they must be somehow be discounted. To the contrary, it could be said that it is precisely because they were written without any knowledge of the (complex) law of adverse possession that they carry particular weight. They tell the story. Mr Kleanthous was at pains to stress that he was occupying the disputed land with permission.

 

55.              I also reject any argument that there is a distinction to be drawn between permission to be clear the land, and permission to use it as a garden or allotment. The test is whether the occupation of the land was permissive. The answer is, as I have said, that it was permissive.

 

56.              Accordingly it seems to me that Mr and Mrs Klenathous’ claim must fail on this ground alone. But I am wrong on this, I will set out my findings in relation to the other issues which I have identified.

 

Factual possession

 

57.              The relevant test is clearly set out in Powell v McFarlane (1978) P&CR 452 at 470-471. Factual possession requires an appropriate degree of physical control. It must be singe and exclusive. What is sufficient or appropriate depends on all the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.

 

58.              Mr O’Bree, on behalf of the Council, put at the forefront of his argument the fact that the disputed land is not completely enclosed and that accordingly the Council and others have access to the land. In my judgment, however, in the light of all the evidence I heard, I have no hesitation in concluding that Mr and Mrs Kleanthous have been in factual possession of the disputed land since 1990.

 

59.              The disputed land is clearly enclosed (albeit not completely). It is a distinct unit. It is used as a garden/allotment. It is set out in such a way as to make it clear to anyone passing by that it is being so used and so occupied. The Council contractor asked for permission to enter. Mrs Sawyer has entered, but has done so since the dispute began. In any event, the test for factual possession is not whether it is possible for others to enter or whether they did (since by doing so they might well have been trespassing) but whether Mr and Mrs Kleanthous were in possession.

 

 

Intention to possess

 

60.              The relevant intention is to possess not to own. It is for this reason that a willingness to pay if asked (or a willingness to purchase), or a willingness to give up the land, is not of itself necessarily inconsistent with the squatter being in possession (a written acknowledgement, however, is treated differently).

 

61.              It is also right to say that in most cases, once factual possession is established, the court will readily draw an inference that the squatter intended to possess. The test is whether the squatter makes it plain to the world at large that he intends to exclude the owner as best he can.

 

62.              In these circumstances, however, given my finding as to permissive user, and given my finding as to acknowledgement of title, it seems to me clear that Mr and Mrs Kleanthous’ occupation was without the necessary intention.

 

Acknowledgment of title

 

63.              Section 29(2) of the Limitation Act 1980 provides that accrual of time in relation to adverse possession starts afresh in the event of an acknowledgement of title of the paper owner by the person in possession of the land. This must be in writing and signed by the person making it: section 30(1).

 

64.              It seems clear that an offer to purchase (even if made without prejudice) is sufficient acknowledgement of title: see Edington v Clark [1964] 1 Q.B. 367.

 

65.              In this case I agree with Mr O’Bree that there are at least two instances when title was acknowledged. The first was on the completion of the allotment form in 1996. The purpose of this document – to keep a record of the plot holders – seems to me to clearly recognise the Council as owner. But in any event even if I am wrong on that, I have come to the conclusion that the letter dated 17 August 1999 constituted a (further) acknowledgement, with the effect that the clock stopped running then.

 

66.              The letter states at one point that title is not disputed and then goes on to suggest what steps might be taken if the Council can prove title. On one reading the recognition of title is unequivocal. I appreciate, of course, that the letter might be read as putting in issue the question of title. But there is a difference, in my view, between a letter which disputes that a person owns land and a letter which states that if title can be established then the occupiers wishes to buy: in the latter case what is being said is that, conditional on proof, the squatter recognises the better title. Proof was indeed forthcoming.

 

67.              Mention should also be made of the earlier letter dated 4 March 1999. In this letter Mr Kleanthous said this: ‘I notice that in the book ( a guide for council tenants) I have the right to buy any piece of land that is next to my home. If it is owned by the Council. If you insist that this plot of land belongs to the Council please provide me with a copy of registered evidence. If this piece of land is not the property of the Council please inform me in writing’. This too in my judgment amounts to a recognition of the Council’s title.

 

The tenancy point

 

68.              My conclusions on the first point (user with permission) on the second point (intention) and the third point (acknowledgment of title) make it strictly unnecessary for me to decide whether in any event, as the Council claims, Mr and Mrs Kleanthous held the disputed land for the benefit of the Council during their term as secure tenants and accordingly reverted to the Council at the end of the secure tenancy.

 

69.              The law in this area is not without complexity and was reviewed recently by the Court of Appeal in Tower Hamlets v Barrett [2006] 1 P&CR 9. The presumption that a tenant who occupies other land belonging to the landlord or to a third person does so on behalf of his landlord (in the case of land owned by the landlord, as an extension of the tenancy itself) was held to be too well established to be over-ruled.

 

70.              The difficulty here is that only 9 years had elapsed before the secure tenancy came to an end. Mr and Mrs Kleanthous remained in occupation thereafter as long leaseholders. Possession was not given up at the end of the 9 year period, and the question therefore arises as to whether there was a deemed surrender of the disputed land in 1999 (unless the presumption could be rebutted) or whether the continued occupation of the disputed land (albeit at a time when Mr and Mrs Kleanthous had a very different interest in Newlands Place) means that the doctrine did not come into play in 1999.

 

71.              There is, so far as I am aware, no authority on this point. With some hesitation I have come to the view that the coming to an end of the secure tenancy in 1999 and the grant of a wholly new interest thereafter does mean that (unless the presumption is rebutted) the disputed land was deemed to be held for the Council and reverted (notionally) to the Council.

 

72.              The basis of the doctrine is a form of estoppel between the landlord and the tenant which precludes the tenant from denying the landlord’s title not only to the land demised but also to land which the tenant acquired by virtue of his tenancy. The secure tenancy came to an end. The land acquired with it therefore reverted to the Council. The fact that Mr and Mrs Kleathous remained in possession simply meant that, if their possession was adverse, the clock started running again.

 

73.              Ms Rubens urged me to find that the presumption had been rebutted. My view is that nothing occurred to rebut the presumption. A tenant must do more than merely act in such a way that is consistent with acquiring title by adverse possession. The Council came to the view in August 1999 that the disputed land was not part of the tenancy because they did not wish to include the disputed land in the leasehold interest acquired under the right to buy legislation and not because they did not wish to retain the land.

 

74.              In the event, even if I am wrong on this, the tenancy point does not avail Mr and Mrs Kleanthous since I have found that they did not acquire title by adverse possession.

 

 

 

 

Conclusion

 

 

75.              I will accordingly order the Chief Land Registrar to cancel the application made by Mr and Mrs Kleanthous for first registration of the disputed land dated 8 February 2005.

 

76.              I also want to add this. Mr Kleanthous has acted properly throughout. He has without a doubt improved and cared for the disputed land. It is obvious that this land is very important to him and to his family. He made various attempts to put his occupation on a proper footing. It is regrettable that, for whatever reason (be it the position of the plot, the confusion as to numbering, or just an administrative oversight) his occupancy was not in fact regularised. By the time the Council offered a tenancy in 2005 this application had already been made. I hope that, in the light of this judgment, it will be possible for the parties to reach an agreement as to the continued use of the disputed land.

 

77.              Both parties submitted schedules of costs. In the light of my decision I direct that Mr and Mrs Kleanthous serve and file any objections or representations they may wish to make on the Councils’ schedule of costs by 8 January 2007. I will then consider the matter again on paper and give further directions or make such order as I deem appropriate.

 

 

BY ORDER OF THE DEPUTY ADJUDICATOR

 

 

ANN McALLISTER

 

Dated this 8^th day of December 2006