England and Wales Land Registry Adjudicator

 

REF/2006/1547

 

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

B E T W E E N

 

(1)   CHARLES ERNEST JONES

(2)   DAVID PARAMORE JONES

 

APPLICANT(S)

 

and

 

THE HONOURABLE PETER JAMES HERBERT

 

RESPONDENT(S)

 

 

Property Address: Land Adjoining Manor House Farm, Pool Quay, Welshpool, Powys

Title Number: CYM26995, CYM182300 and CYM191696

 

 

Before: Ms Stevens-Hoare sitting as Deputy Adjudicator to HM Land Registry

 

 

Sitting at: Shrewsbury County Court

On: Tuesday 5 February 2008

 

 

Applicant Representation: Mr Thistlewaite, Messrs Emrys Jones & Co

Respondent Representation: Mr Till and Richard George & Jenkins

 

 

DECISION

 

KEYWORDS: Adverse Possession – Landlord and Tenant – Land adjoining the demise - Rebutting the presumption

 

Cases referred to:

Attorney-General v Tomline (1880) 15 Ch 150

Kingsmill v Millard (1855) 11 Exch 313

Perrott (J.F.) & Co Ld v Cohen (1951) 1 KB 705

Smirk v Lyndale Developments Ltd [1974] 3 WLR 91

Mayor and Burgesses of the London Borough of Tower Hamlets v Barrett and anr [2005] EWCA Civ 923

Blight v Martin – [1968] 1 WLR 804

 

Introduction

1.             The Applicants and their family have occupied Manor House Farm (“MHF”) and a number of fields in the area, that they have worked as a farm, for over a hundred years. Some of the land occupied was owned by the Jones family and some like MHF were occupied by them as tenants. This application relates to an area of land (“the Disputed Land”) formerly part of or adjoining MHF that was in the ownership of the Powis Castle Estate (“the Estate”) until it was sold. It was sold, with vacant possession, along with other land, to Montgomery County Council (“the Council”) on 23 May 1951.

2.             Notwithstanding the sale by the Estate the Jones family continued to occupy and use the Disputed Land. The Council conceded, in about 1991/2, that the Jones family had acquired the Disputed Land, by adverse possession. In March 1999 the Applicants applied for and obtained a caution against first registration of the Disputed Land.

3.             The Respondent is the successor the Estate for this purpose. The Respondent was a beneficiary under the trust which held the Estate. On 30^th March 1979 the trustees of the Estate transferred part of the Estate property to the Respondent. That transfer on the face of the documentation purported to include the Disputed Land. On 12 June 2006 the Respondent applied to register his title to the land the Estate had transferred to him. That land included the Disputed Land. As a result of the Applicant’s caution they were notified of the application and objected in so far as it related to the Disputed Land. The Respondent disputes the Applicants’ claim to adverse possession.

Background

4.             There is virtually no factual dispute in this matter. However there are some acknowledged gaps in the available factual information. For this purpose I will sometimes refer to the Jones family as a group. The prime movers in the Jones family were the Applicants’ parents and more recently the Applicants. Their father died on 28^th January 1976 and their mother is still living although it would seem she has had little to do with the farm business since at least 1992.

5.             The Applicants’ parents were in occupation of MHF as tenants of the Estate from at least 1941. It is believed Mr Jones Senior held the tenancy. MHF consisted of a farmhouse (“the House”) and a field to the rear of it (“the Field”). It would appear other family members had previous tenancies of MHF. The tenancy agreement in existence at that point in time is not available and it simply is not known, by either party, whether it formally identified the Disputed Land as part of the land demised or not. Whether or not the Disputed Land was actually included in the demise there is no dispute that it was occupied and used by the Jones’ as part of the farm they worked and as part of the Field to the rear of the House, the rest of which would have been included in the tenancy.

6.             On 23 May 1951 the Estate sold a parcel of land to the Council which included the Disputed Land. Although, the Council took up physical possession of the rest of the land sold to it by the Estate the Disputed Land remained in the possession of the Jones. They continued to use it as they previously had done along with the land they occupied as tenant of MHF, the Field. There is no evidence and noone has suggested that Mr Jones Senior was in any way involved with the sale to the Council or that he was granted a fresh tenancy immediately following the sale. However, I note that exactly one year later, on 24 May 1952 Mr Jones Senior was granted a new tenancy of MHF. Again there is no evidence that assists with whether that tenancy purported to include the Disputed Land. The First Applicant was born in 1953. I do not know when the Second Applicant was born.

7.             Both Applicants grew up living in the House. As the Applicants grew up they moved out of the House, however they remained involved with the farm, working the Field including the Disputed Land and other land. Ultimately, following the death of Mr Jones Senior on 28 January 1976 it would seem they along with their mother took over the family farm.

8.             In about 1977 the basis upon which MHF was occupied changed in that the Estate and the Jones (the Applicants and their mother) entered into a partnership agreement. That agreement provided that the Estate would provide the land and the Jones would provide the labour and stock. The Estate and the Jones would then share the profit. Contrary to the terms of the partnership agreement it appears that the Jones contributed the use of their own land to the partnership business. Again it is not possible to ascertain, on the available documentation and evidence, whether the partnership agreement actually purported to include the Disputed Land within the land made available by the Estate.

9.             On 10^th April 1992 the partnership agreement was brought to an end by a deed of dissolution. On the same day the Applicants took a tenancy of certain agricultural land from the Respondent. That tenancy did not include the Disputed Land or the Field. Again on the same day Mrs Jones, the Applicants’ mother, was granted an Assured Shorthold tenancy of MHF (“the AST”). It is clear on the face of the documentation that tenancy did expressly purport to include the Disputed Land in the premises demised to Mrs Jones. There is no suggestion that the inclusion of the Disputed Land was queried or challenged at any point. It was also accepted that Mrs Jones had the benefit legal advice, independent of the Respondent, when entering into that agreement. It should be noted that the AST included the whole of the Field. The user clause in the AST was for use as a private dwelling house and there was alienation provision barring assignment, underletting and parting with possession of any part of the demised premises. It is accepted that thereafter to the knowledge of the Respondent the Applicants carried on using the Field and the Disputed Land as part of the farm they were working with their mother’s consent. Further it is apparent the Respondent was not consented about that use although technically it was in breach of the terms of the AST.

10.         During the 1990s Mrs Jones also made two statutory declarations asserting adverse possession of the Disputed Land against the Council and in 1996 executed a transfer of her interest in the Disputed Land to the Applicants.

11.         It appears that following the sale in 1951 the Disputed Land remained open to the MHF and fenced off on all other sides. That remains the case today. The Disputed Land appeared for all purposes to be part of the Field and it is agreed between the parties that it has been used as such at all time since 1951 until the AST was surrendered in 2006.

12.         In any event it was accepted by both of the parties that the activities of the Joneses were sufficient to amount to an effective adverse possession against the true owner, the Council, and it would appear the Council has conceded that. Indeed both parties’ claims to have acquired possessory title of the Disputed Land and extinguished the Council’s title rest on the activities of the Jones family.

The Evidence

13.         I heard evidence from the First Applicant. He confirmed that the Estate did not, to his knowledge, take any interest in the Disputed land after the sale in 1951 until more recent years. He indicated it was always his understanding the Disputed Land was part of “our title”and accordingly when the Council approached the family about it they took action to establish their title. Neither the Estate nor the Respondent was involved in that at all. He indicated that the Estate/Respondent had only be interested since about 1995, once the local authority were talking about building

14.         The First Applicant confirmed that the family had always farmed the Disputed Land and raised stock on it without distinction from the rest of the land they farmed particularly the Field. Even after the AST was granted he confirmed that whilst his mother had the House, the Applicants carried on farming the land. He said the Field, including the Disputed Land, was a field and it had to be grazed. He confirmed that the farming on the Disputed Land was without distinction from the farming on the Field at all times including throughout the period of the partnership arrangement.

15.         The First Applicant indicated he was not involved in the detail of the AST in 1992 and his mother may have signed it because she was elderly, having been born in 1917, and did not appreciate the significance of the inclusion of the Disputed Land, notwithstanding the fact she had made a statutory declaration alleging possessory title in 1990 and did again in 1996. The First Applicant was very clear that his father talked about the Disputed Land as “our land” or “our ground” in contrast to the Field which he referred to as “the Powis Estate’s…”.

16.         In re-examination when asked if his father distinguished the Disputed Land from the Field in anyway the First Applicant described how his father was always very clear about not being entitled to sub-let any of the land they occupied as tenants and yet he had sublet part of the Disputed Land for a year or two for a chicken shed. He indicated his father would never have done that if he thought it was the Estate’s land.

17.         Further, he confirmed that after his mother surrendered the AST in 2006 the Applicants erected a fence separating the Disputed Land from the field and Mr Till, the Respondent’s surveyor removed that fence very quickly. He confirmed that was the only time there was any distinction between the Disputed Land and the Field on the ground.

18.         I have also read the Statutory Declarations and witness statements provided by the Second Applicants and Mrs Jones.

19.         I then heard evidence from Mr Till. Mr Till confirmed that the Respondent himself had approved the content of his Statement of Case. Further he confirmed there were no other relevant records that assisted in ascertaining whether the Disputed Land was included in any tenancies or the partnership agreement prior to the AST. He confirmed that he had managed the Respondent’s land since 1994 and he was completely reliant on documentation for earlier events. He confirmed that although the House has been sold to a third party the Field had not. He accepted that mistakes can be made in records such as the Estate records but asserted that generally they are pretty accurate. He pointed to the fact that the Estate and the Respondent clearly proceeded on the basis that the Disputed Land belonged to the Estate, and then the Respondent, when the transfer to the Respondent occurred and the grant of the AST.

The Issues

20.         There was no dispute between the parties that the 1951 conveyance was effective to divest the Estate of its title in the Disputed Land and that the title the Council had acquired by that transaction had subsequently been extinguished by adverse possession based on the physical activities of the Joneses.

21.         It follows the first issue in this case is whether the adverse possession of the Joneses, after the 1951 conveyance, operated to acquire the Disputed Land for their own benefit or the benefit of their landlord, the Estate and then the Respondent, albeit subject to their tenancies from time to time. The second issue which arises, if the Respondent fails on the first issue, is the effect of the AST for 14 years on the Joneses’ possessory title.

The Law

22.         The particular position of a tenant who goes into adverse possession of land adjoining his demise and occupies it along with the demised land has been considered by the Courts a number of times. Parke B in Kingsmill v Millard at 318 described the applicable doctrine as follows:

“It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a third person – that the presumption is that the tenant inclosed it for the benefit of his landlord unless he has done some act disclaiming the landlord’s title.....The encroachment must be considered as annexed to the holding, unless it clearly appears the that tenant made it for his own benefit.”

23.         The existance of that doctrine as a rebuttable presumption, has been confirmed by the Court of Appeal a number of times, most notably in Smirk v Lyndale Developments Ltd by Pennycuick V-C and in Mayor and Burgesses of the London Borough of Tower Hamlets v Barrett and anr by Neuberger LJJ. It is to be noted that the Barrett case involved adverse possession of the land of a third party. Further, it is to be noted that Neuberger LJJ approved the conclusion in Attorney-General v Tomline that the doctrine is “founded on a presumption of fact”.

24.         If the presumption arises it becomes necessary to consider what is required to rebut that presumption of fact. Does the presumption depend purely on the acts and state of mind of the tenant in occupying the premises or does it depend upon the appearance of those acts to the landlord and/or the rest of the world?

25.         The doctrine as set out in Kingsmill was expressly approved in both Smirk and Barrett. It is to be noted that in Kingmill the statement of the doctrine approved of describes the presumption as applying unless the tenant “has done something disclaiming the landlord’s title”. Further Alderson B also said at 318:

“it seems to me that the acts of the tenant to rebut the presumption should be such acts as in a manner set the landlord at defiance; for instance, if the tenant gave the landlord notice of a conveyance, and he did not interfere, but if the landlord has no knowledge of it, what is there to undeceive him in supposing that the tenant occupies the wastes as part of the holding?”

26.         It is also to be noted that Neuberger LJJ commented that:

“Dicta in a number of cases on this topic, in particular, Tomline’s case, clearly indicates that the conduct of the parties, even after the 12-year period has accrued, can be taken into account when deciding whether the doctrine applies in a particular case.

...........

The subsequent acts and statements of those parties may be relevant as casting light on what then intended and believed at the end of (and indeed during) the 12 year period (and in an extreme case they may give rise to an estoppel).”

27.         It follows in order to rebut the presumption it is necessary to consider the conduct and intention of both landlord and tenant and that consideration can include subsequent events. Further the private, personal belief or intention of the tenant to occupy for his own benefit rather than as tenant is insufficient unless it is apparent to the landlord during the 12 year period.

28.         It is clearly established that the act of letting property to another is an act of possession with sufficient exercise of control and exclusivity to support a claim to adverse possession. In such circumstances the physical occupation by the tenant, albeit including the right to exclude the landlord, is by and on behalf of the landlord who remains in possession of the reversionary interest.

29.         The question then arises whether the letting of property by one party to the true owner, in the belief that the first party is the owner, will give rise to an adverse possession by the apparent landlord against the true owner/tenant notwithstanding the fact that true owner is physically in possession of the premises throughout. It should be remembered in that context, as between landlord and tenant, the tenant is estopped from denying the title of his landlord. Where there is a landlord and tenant and the tenant is in physical possession only one of them can be in possession and the law designates the possession to be that of the landlord so that the landlord so that he is in adverse possession; Bligh v Martin.

 

Decision

30.         The starting point in this case is 1951, it being accepted that by the conveyance to the Council, the Estate divested itself of any interest in the Disputed Land. It follows the Respondent can only succeed on the basis that the Disputed Land was regained by the Estate by adverse possession. The Estate, then the Respondent have never directly occupied the Disputed Land and must therefore rely on the physical occupation of the Joneses. As I have already said both parties proceed on the basis that the Joneses’ physical occupation was sufficient for time to run against the Council and extinguish the Council’s title by the mid 1960s.

31.         The relevant period pre-dates the partnership and was at a time when Mr Jones Senior and Mrs Jones would have been in control. The evidence clearly establishes that on the ground the Disputed Land appeared to be a part of the Field and was used as such without distinction save possibly for the brief subletting, if that occurred that early in time.

32.         The Applicants acknowledge that they rely only on Mr Senior’s expressions of ownership and his subletting of part of the Disputed Land in order to establish the possession of the Disputed Land was not as tenant.

33.         I accept that Mr Jones Senior’s references to the Disputed Land were in terms that suggested ownership and I conclude that Mr Jones was aware of the sale to the Council and believed in his own mind that his continued occupation and use of the Disputed Land meant he was in the process of acquiring the Disputed Land by adverse possession for himself so essentially. I also accept the evidence that he sub-let the Disputed Land for a short period and would not have done so if he did not think he owned it. It seems to me very likely in those circumstances that he would only have done that after he believed he had acquired the Disputed Land by a full 12 years adverse possession. Further there is absolutely no evidence of Mr Jones Senior’s intentions being communicated to the Estate. Nor is there any evidence or suggestion of any action on his part that would have conveyed the notion that he did not occupy the Disputed Land in his capacity as tenant but for his own benefit as owner. I am proceeding on the basis that the description of the demised premises in the tenancy agreement or agreements in place during that period did not include the Disputed Land.

34.         Since the Joneses were not in fact occupying the Disputed Land as tenant between 1951 and the 1970s the presumption arises. The question is therefore for whose benefit that adverse possession inured. It follows the starting point is the rebuttable presumption that the Joneses occupation was as tenant rather than in their owner right.

35.         There is no evidence of anything that put the Estate on notice that the Joneses’ occupation of the Disputed Land was not in their capacity as tenant of the Estate so as to extend the demise under the tenancy of MFH. There is no evidence of Mr Jones Senior’s expressions of ownership being made to any representative of the Estate or that the Estate was aware of the subletting or the thinking behind it. Whilst I accept Mr Jones Senior thought he was in adverse possession and intended to acquire the Disputed Land by that means there was no outward demonstration of that nor anything to put the Estate on notice that its tenant was seeking to occupy for himself not the Estate. Accordingly, the presumption that the Disputed Land was occupied by the Joneses as tenants so that the adverse possession inured for the benefit of the Estate, albeit subject to the terms of their tenancy of MFH, is not rebutted. It follows as of the mid 1960s the Estate had acquired possessory title to the Disputed Land although it was subject to Mr Jones Senior’s tenancy for as long as that subsisted.

36.         Although, Mr Jones Senior and Mrs Jones remained in occupation of the Disputed Land for a lengthy period after the mid 1960s there was nothing done thereafter could be said to operate as an act of possession, dispossessing the Estate or the Respondent when he succeeded to the Estate’s interest in the Disputed Land. Nothing occurred which demonstrated to the Estate/Respondent the Joneses were occupying as owners. Although during the early 1990s the Joneses had dealing with the Council asserting their entitlement by reason of adverse possession it was accepted the Estate and Respondent were not involved in those dealings at all. Indeed it is said by the Respondent with some force that during the period of the partnership arrangement the Respondent shared possession with the Joneses as the Disputed Land was occupied for the farming business of the partnership. From 1992 until 2006 the occupation of Mrs Jones under the AST was expressly on the basis that she occupied as tenant of the Respondent.

37.         Given my conclusions as to the effect of the Joneses’ occupation in the years following the 1951 conveyance I need not consider the effect of the AST.

38.         Nevertheless, I have concluded that even if I were wrong about the failure to rebut the presumption the AST would operate as a dispossession by the Respondent with the result that he acquired possessory title of the still unregistered land 12 years afterwards in April 2004. Any possessory title to the Disputed Land would have been acquired in the first instance by Mr Jones Senior and Mrs Jones. I accept that Mrs Jones may not have thought about the conflict between the AST including the Disputed Land and her claim in her statutory declarations. However, she entered the tenancy agreement which included the Disputed Land, she paid the rent for the demised premises including that land and there has been no suggestion that she would have been entitled to rectify the tenancy agreement to exclude the Disputed Land or to rescind it. In those circumstances the fact is for 14 years Mrs Jones was a tenant of the Field including the Disputed Land and she, being no longer involved in the farm itself, permitted the Applicants to use the Field including the Disputed Land. Mrs Jones thereby acknowledged and accepted the Respondent’s ultimate right to control over the Disputed Land in his capacity as her landlord and his reversionary interest in it. It was not suggested that the Applicant’s could establish their own adverse possession distinct from the previous actions of their parents rather their claim is based on the acquisition of their parent’s interest by the 1996 transfer at a time. However, by the time Mrs Jones entered into the 1996 conveyance she had already accepted a tenancy of the Disputed Land from the Respondent and it seems to me that the Applicants’ deriving their interest from Mrs Jones with knowledge of that AST must have acquired her interest subject to the effect of that AST.

39.         Since the Respondent has been successful in this matter subject to any submissions, if the Respondent applies for costs, I would be minded to order that the Applicants pay the Respondent’s costs to be assessed. If the Respondent wishes to apply for costs an application supported by a schedule of costs should be sent to the Applicants and the Adjudicator’s office within 28 days of this judgement. In the event of such an application being made the Applicants should send any submissions relating to the whether an order for costs should be made and in what sum to the Respondent and the Adjudicator’s office within 28 days of receipt of the Respondent’s application for costs.

 

 

 

Dated this 12^th day of March 2008

 

 

 

By Order of The Adjudicator to HM Land Registry