REF/2012/0518

 

 

PROPERTY CHAMBER, LAND REGISTRATION DIVISION

FIRST-TIER TRIBUNAL

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

(1) MARK ANTHONY ANDREWS

and

(2) NICOLE SUZANNE JONES

 

APPLICANTS

 

and

 

(1) JAMES TONKS

and

(2) AMANDA HAYDON

 

RESPONDENTS

 

 

Property Address: Land on the East side of Stibb Farm Cottage, Stibb Farm, Bude EX23 9HP

 

Title Number: CL284010

 

 

Before: Judge Michell

 

 

Sitting at: Truro Magistrates and Tribunal Hearing Centre

On: 23 ^rd May 2013

With written submissions thereafter

 

 

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

RECTIFICATION OF REGISTER –APPLICATION TO ALTER THE REGISTER – WHETHER MISTAKE ON THE REGISTER-CONSTRUCTION OF TRANSFER TO APPLICANTS- WHETHER INCLUDED LAND SUBSEQUENTLY REGISTERED IN THE NAME OF THE RESPONDENTS-WHETHER RESPONDENTS IN POSSESSION-WHETHER REGISTER SHOULD BE RECTIFIED

 

Cases referred to

Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 WLR 896

Peacock v. Custins [2001] 1 EGLR 87

Ali v. Lane & Anor [2006] 1532

Chartbrook v. Persimmon [2009] UKHL 38

Powell v. McFarlane (1977) 38 P&CR 452

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

Paton v. Todd [2012] EWHC 1248 (Ch)

 

1. This case concerns parcels of land which were all formerly part of Stibb Farm in the village of Stibb, just outside Bude. The Applicants are the registered proprietors of 1 Stibb Barns, under title number CL124690, a house created by the conversion of former farm buildings. The Respondents are the registered proprietors of Stibb Farm Cottage, which is held under two titles; CL160515 and CL239992. Adjoining Stibb Farm Cottage and its garden on the east side is an area of open land registered under title number CL284010. I shall refer to it as “the Disputed Land”. The Respondents are the registered proprietors of the Disputed Land. The Applicants say that they are the rightful owners of the Disputed Land and on 16 ^th February 2012 they applied to alter Title CL284010 by closing that title.

 

2. The Respondents in their Statement of Case suggested that the Applicants’ application related to more land than is registered under title number CL284010. The application referred to the Adjudicator by HM Land Registry is an application to close title number CL284010 and to add the land in that title to title number CL124690. It follows that the only area of land in issue before me is the land within title number CL284010.

 

The Site

4. I inspected the site accompanied by the parties on the day before the hearing. I should record that the inspection took place a few months after the Respondents had set two fence posts at or towards the southern end of the Disputed Land. The site is approached from the public highway to the west along an unmade-up lane which runs west-east along the side of Stibb Farm House and Stibb Farm Cottage. Stibb Farm House faces across its front garden towards the public highway. Stibb Farm Cottage adjoins and lies behind or to the east of Stibb Farm House. Another lane branches off to run south between Stibb Farm Cottage on the west side and a block of barns converted into houses on the east side. The barns at the north end of the block have been converted into a house called Badgers Cottage. The barn to the south has been converted into the Applicants’ home, 1 Stibb Barns. Between the south end of Badger Cottage and the north wall of 1 Stibb Barns there is a gateway leading into a courtyard. Stibb Farm Cottage is approximately the shape of a reversed “L”, having one section under a pitched-roof running north-south with a gable at the north end and another section under a pitched-roof running east-west, with a gable at the east end and the west end adjoining Stibb Farm House. The eastern wall of the section running north-south is approximately in line with the eastern wall of the section running east-west. A two-storey section of the building projects further to the east than the eastern flank walls of the north-south and east-west sections. A door into the cottage is set in the south wall of this projecting section. A porch comprising a single-pitched roof supported on cylindrical pillars has been built to the south of this eastern projection, against the east wall of the east-west section. The area of the porch would appear to be included in the land registered under title CL284010. The Disputed Land continues south from the porch. It is bordered on the west side by a wooden pedestrian gate and a concrete block wall approximately 3 feet high. The north side of the gate adjoins the south-eastern corner of the main east-west section of the cottage. There are posts set in the ground next to the east side of the block wall, on which posts are attached fence panels which are about 3 feet in height and the bottom of which are level with the top of the wall. The fence panels are fixed where there were formerly panels of trellis. The surface of the Disputed Land is partly covered in grass and partly with stones and gravel. There is no physical feature to mark the eastern side of the Disputed Land. It is indistinguishable in parts from the gravelled roadway to the east. There is also no physical feature to mark the line of the southern boundary of the Disputed Land. A telegraph pole stands towards the southern end of the Disputed Land, close to the block wall. From the top of the pole, a metal stay cable runs down in approximately a south-south-east direction and is anchored to the ground.

 

The Facts

5. By a conveyance dated 13 ^th November 1986, the National Trust conveyed to Mr and Mrs Colgrave and Mr and Mrs Andrew

“All That freehold land and property situate at Stibb …comprising 1.2 acres or thereabouts Together With the buildings erected thereon or on part thereof All which said property is delineated and shown edged red on the plan annexed hereto”.

The National Trust retained the adjoining property, described in the conveyance as “Stibb Farmhouse”. That retained property included the property that is now Stibb Farm Cottage. The conveyance plan is drawn at a small scale and the boundary line between the land conveyed and the land retained is shown by a somewhat crudely-drawn thick line. The National Trust reserved a right of way over and a right to park two vehicles on land adjoining and to the east of Stibb Farmhouse. The rights were reserved in the following terms

“To the Vendor and its successors in title the owner or owners for the time being of the adjoining property known as Stibb Farmhouse and shown coloured green on the plan annexed hereto a right of way at all times and for all purposes over and along the roadway shown coloured brown on the plan annexed hereto between the points marked 1,2 and 3 thereon together with the right to park two vehicles on the said roadway between the points marked 2 and 3 provided that the said vehicles shall not be parked in such a way as to obstruct access to the property hereby conveyed”.

The area shown coloured brown is roughly the area between the barns to the east and Stibb Farm Cottage to the west. The brown colouring has been crudely applied to the plan. There is a narrow area left uncoloured to the west of the western walls of the barns, although it is not in dispute that the roadway runs up to the western walls of the barns. There is also a narrow area between the brown colouring and the red line running roughly in the position of the block wall at the western side of the garden of the cottage.

 

6. Mr and Mrs Colgrave and Mr and Mrs Andrew developed the Stibb farm buildings. They transferred Unit 1 Stibb Farm Buildings to Mr and Mrs Colgrave on 25 ^th September 1987 by a transfer made under Rule 72 of the Land Registration Rules 1925. Rule 72, made under the power given by Section 37 of the Land Registration Act 1925, permitted a transfer by a person who had the right to apply for first-registration but had not obtained first registration at the date of the transfer.

 

7. Mr and Mrs Colgrave sold Unit 1 Stibb Farm Buildings, now called 1 Stibb Barns to Mr Mooney and the second-named Applicant, Miss Jones, who was then Mrs Mooney, by a contract made on 27 ^th February 1997. On the same day, Mr and Mrs Colgrave and Mr and Mrs Andrews contracted to sell to Mr Mooney and Miss Jones land described as “All that freehold land at Stibb Farm …All which land is edged red and edged red hatched black on the plan annexed hereto”. The land edged red hatched black on the contract plan is an area between the western walls of the barns and Stibb Farm Cottage. The colouring extends to the walls of the barns and adjoins the south-east corner of Stibb Farm Cottage. The plan does not show clearly if the colouring adjoins the block wall beside the garden of the cottage.

 

8. The transfer made pursuant to the contracts was dated 6 ^th March 1997. I shall refer to this transfer as “the 1997 Transfer”. The land transferred by Mr and Mrs Colgrave was described in the First Part of the First Schedule to the 1997 Transfer, as

“ALL that freehold property known as 1 Stibb Barns Stibb Bude in the County of Cornwall All which said property is more particularly described in and shown edged red on the plan annexed to [a conveyance dated 25 ^th September 1987 and made between Mr and Mrs Colgrave and Mr and Mrs Andrew (1) and Mr and Mrs Colgrave (2)]”.

By the same transfer, Mr and Mrs Colgrave and Mr and Mrs Andrew transferred to Mr and Mrs Mooney

“All That freehold land at Stibb Farm, … All which said land is shown edged red and edged red hatched black on the plan annexed hereto..”

The land edged red and hatched black is land lying between 1 Stibb Barns and Stibb Farmhouse. The plan to the 1997 Transfer is not clear. It does not appear to show the outline of the building comprising Stibb Farm House and Stibb Farm Cottage accurately. In particular, it is not clear that the part of the cottage projecting east from the main part of the cottage is shown accurately or at all. The red edging is somewhat crudely drawn but it does appear to adjoin the south-eastern corner of the cottage as depicted. Running south from there is a line which is capable of being interpreted as running along the block wall of the cottage garden. The land transferred by Mr and Mrs Colgrave and Mr and Mrs Andrew was transferred

“Subject to the exceptions and reservations rights provisions agreements and declarations contained or referred to in a Conveyance dated 13 ^th day of November 1986 and made between The National Trust … (1) and Mr and Mrs Colgrave and Mr and Mrs Andrew (2)”

It is the land over which the right of way and right to park two cars was reserved by the National Trust in the conveyance of 13 ^th November 1986. As is apparent from the words quoted above, it was transferred to Mr and Mrs Mooney subject to that right of way and right of parking. Mr and Mrs Colgrave and Mr and Mrs Andrew by the Second Part of the Second Schedule to this transfer reserved

“(a) a right of way at all times and for all purposes over that part of the roadway edged red hatched black on the plan annexed hereto subject to Mr and Mrs Colgrave and Mr and Mrs Andrew and their successors in title contributing towards a fair and reasonable proportion of the cost of repairing and maintaining the same.”

and

“(b) the right to the free passage and running of water soil gas and electricity and other services through the Service installations now or within the Perpetuity Period laid or constructed on under or through the land shown edged red hatched black on the plan annexed hereto and the right to enter upon the said land shown edged red hatched black with or without workmen plant or materials for the purpose of connecting into and inspecting maintaining repairing and renewing the same …”

 

9. Title to the land transferred was registered on 21 ^st April 1997 under title number CL124690. The title plan shows only general boundaries but the general boundary is drawn as a line not along the solid line on the plan representing the block wall but along the printed dashed-line which runs south from the south-east corner of that part of Stibb Farm Cottage as projects east from the main part of the cottage and not from the south-eastern corner of the east-west running part of the cottage. The area between the solid line and the dashed line is the area of the Disputed Land.

 

10. It is not apparent from the papers when the National Trust conveyed away Stibb Farm Cottage. On 12 ^th August 1988 Mr and Mrs Newton conveyed to Mr Graham Evans

“All That piece or parcel of land together with the messuage or dwelling house erected thereon or on part thereof situate at Stibb .. and known as Stibb Farm Cottage All which said property is for the purpose of identification only shown edged red on the plan annexed hereto”.

Stibb Farm Cottage was conveyed together with

“a right of way at all times and for all purposes over and along the roadway shown coloured brown on the said plan between the points marked 1 2 and 3 thereon Together also with the right to park two vehicles on the said roadway”.

The conveyance plan is on a very small scale and the red edging appears thick.

 

11. Mr Evans transferred Stibb Farm Cottage to Mr and Mrs Cottle by a transfer dated 14 ^th April 2000. This transfer gave rise to first registration of Stibb Farm Cottage under Title Number CL160515. The title plan shows the eastern boundary of the land within the title following the line of the concrete block wall forming the eastern boundary of the garden of Stibb Farm Cottage. A pecked line running further to the east can be seen on the Ordnance Survey map forming the base for the title plan. That is the pecked line followed by the boundary line shown on the title plan of the Applicants’ property. At the time of the transfer, Mr Evans made a statutory declaration dated 12 ^th April 2000 in which he stated in relation to the Disputed Land that since purchasing Stibb Farm Cottage he had used the Disputed Land as a parking area and that for 11 years it had formed part of his property.

12. The transfer by Mr and Mrs Cottle was not in evidence. On 13 ^th December 2002 Mr and Mrs Smith transferred Stibb Farm Cottage to Mr and Mrs Beatson. Mr and Mrs Beatson transferred Stibb Farm Cottage to the Respondents, who were registered as proprietors on 31 ^st January 2007. At the time of the transfer to the Respondents, Mr Beatson made a statutory declaration in which he stated that he had used the Disputed Land as a parking area.

 

13. In October 2007 the Respondents made an application to HM Land Registry to register possessory title to the Disputed Land. Land Registry gave notice of this application to the Applicants and by letter dated 12th October 2007 the Applicants objected on the grounds that they owned the Disputed Land. On 16 ^th April 2008 Land Registry wrote to the Respondents stating it was not clear from the evidence before the Registry who was the true owner of the Disputed Land and that the various plans were open to more than one interpretation. The writer of the letter advised the Respondents that they were not in adverse possession of the Disputed Land because it was too open and the Respondents were using it only to park cars, which could be in accordance with the right to park they enjoyed as owners of Stibb Farm Cottage and which was noted on their title. The Respondents subsequently withdrew their application.

 

14. On 6 ^th May 2008 the Respondents registered a caution against first registration of “land on the east side of Stibb Farm Cottage”, alleging that they had been in possession of this land since December 2006. The caution plan shows the area to which the caution relates as being the area lying between the block wall along the eastern boundary of the garden of Stibb Farm Cottage and the pecked line further to the east. On 14 ^th May 2008 the Applicants wrote to Land Registry asking if they needed to register the Disputed Land to avoid any further applications being made to register title to the Disputed Land. Land Registry wrote to the Applicants on 13 ^th May 2008 informing them that they could either apply for voluntary first registration of the Disputed Land or make an application for rectification of their title plan so as to show the land in the title as including the Disputed Land. The Applicants did neither.

 

15. On 20 ^th September 2011 Mr and Mrs Colgrave, Mr Andrew and the former Mrs Andrew, now Mrs Woodward, transferred to the Respondents “Land on the east side of Stibb Farm Cottage .. shown edged red on the attached Plan”. The transfer plan is appreciably clearer than the plans with the earlier conveyances. That land was registered under Title Number CL284010 on 26 ^th September 2011. At the time of the transfer, Mr Colgrave made a statutory declaration. The transfer was made after the Respondents’ solicitors had written to Mrs Woodward (formerly Mrs Andrew) saying that from their investigations it appeared that the Disputed Land remained in the ownership of Mr and Mrs Colgrave and Mr and Mrs Andrews. Following registration of the transfer (and not at the time of execution) the Respondents paid £500 to each of Mr and Mrs Colgrave.

 

The Arguments

16. The Applicants’ case is that the land now comprised in Title Number CL284010 was included in the 1997 Transfer. They say that it was not registered as part of CL124690 because of a mistake on the part of HM Land Registry when that title was first opened. They say that the plan to title CL124690 should have shown the western boundary of land within the title not a line following a pecked line on the underlying Ordnance Survey map but the solid line further to the west, representing the block wall on the eastern side of the garden of Stibb Farm Cottage.

 

17. The Respondents’ case is that the Disputed Land was not sold and transferred to Mr and Mrs Mooney on 6 March 1997 but was retained by Mr and Mrs Colgrave and Mr and Mrs Andrews. They produced evidence from Mr Colgrave about what he and his co-transferors intended to transfer to Mr and Mrs Mooney by the 1997 Transfer.

 

18. It was common ground that the land conveyed by the National Trust on 13 ^th November 1986 included the Disputed Land.

Relevant Considerations

19. The first issue for me to decide is what land was transferred to Mr and Mrs Mooney by the 1997 Transfer. That issue is a matter of interpretation of the 1997 Transfer. In considering that issue, I must consider what evidence is and is not admissible on the question of interpretation of the 1997 Transfer. At least where the information contained in the transfer is unclear or ambiguous, I am entitled to have regard to extraneous evidence, including evidence of the subsequent conduct of the parties, subject always to that evidence being of probative value in determining what the parties intended – see per Carnwath LJ in Ali v. Lane & Anor [2006] 1532. That evidence may include evidence relating to physical features on the ground at the time of the transfer. It may include the preceding contract intended to be implemented by the transfer - see Peacock v. Custins [2001] 1 EGLR 87. It may include evidence of subsequent conveyances or transfers. It may include evidence of the conduct of the transferors and the transferees after the transfer. However, evidence of the previous negotiations of the parties and their declarations of subjective intent are inadmissible in evidence, as part of the process of construction, for the purpose of drawing inferences about what the transfer means. This was stated clearly by Lord Hoffman in Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 WLR 896 at 913A-913B where His Lordship said

“The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification”.

By an action for rectification, His Lordship meant an action to rectify a document and not an action to rectify the register maintained by HM Land Registry. The scope of the rule appears from Lord Hoffman’s speech in Chartbrook v. Persimmon [2009] UKHL 38 at [42]

“The rule excludes evidence of what was said or done during the course of negotiating an agreement for the purpose of drawing inferences about what the contract meant. It does not exclude the use of such evidence for other purposes, for example, to establish that a fact which may be relevant as background was known to the parties, or to support a claim for rectification or estoppel. These are not exceptions to the rule. They operate outside it”.

 

20. There is no doubt that the information in the 1997 Transfer about what was being transferred is unclear and ambiguous. The Respondents submitted that it is possible to determine from an examination of the plan to the 1997 Transfer and a comparison between that plan and the plan with the conveyance by the National Trust that the Disputed Land was not transferred to the Applicants. The Respondents attempted to transpose the boundary line shown on the plan to the conveyance by the National Trust onto an aerial photograph of the area and then to transpose the line from the plan to the 1997 Transfer onto another copy of the same photograph. The Respondents submit that on the National Trust conveyance plan, the boundary line runs along the concrete block wall and along the western wall of a barn visible in the photograph to the south of the Disputed Land and that in the 1997 Transfer the line rungs east of the block wall and abuts the centre of the northern wall of that barn. It is important to note that the barn shown in the photograph no longer exists

 

21. I do not consider that it is possible to ascertain from the plans alone the line of the boundary in the way the Respondents invite me to do. The plans are not clearly drawn. The National Trust conveyance plan shows the outline of barns to the south of the Disputed Land which are not shown on the 1997 Transfer plan and the barn shown on the 1997 Transfer plan to the south of the Disputed Land does not appear to be the barn shown on the plan to the National Trust conveyance. The angle between the barns and the southern façade of Stibb Farm Cottage appears to be different on each plan.

 

22. In my judgment, it is not possible from the words of the 1997 Transfer and the plan to that transfer, considered in isolation from admissible extrinsic evidence, to determine whether the Disputed Land was or was not transferred. It is therefore permissible for me to consider admissible extrinsic evidence.

 

23. Both parties sought to adduce inadmissible extrinsic evidence. The Applicants sought to give evidence that Mr and Mrs Mooney were told by or on behalf of the vendors, at the time they purchased 1 Stibb Barns, that they were buying “wall to wall; boundary to boundary”. That evidence is not admissible as evidence for the purpose of drawing inferences about what the 1997 Transfer transferred. However, it is admissible as evidence that Mrs Mooney knew at the time of the purchase that there was a block wall along the eastern side of the garden of Stibb Farm Cottage.

 

24. The Respondents sought to adduce evidence from Mr Colgrave about what he and his co-transferors intended to transfer to Mr and Mrs Mooney and what, if anything, they intended to retain and as to what instructions were given to the transferors’ solicitors. Mr Colgrave gave evidence that he intended not to transfer the Disputed Land because he was aware that Mr Evans was seeking to claim that land and he did not want to become embroiled in a time-consuming dispute. He said that he deliberately drew on a plan for his solicitor a boundary “wide of the area now identified as” the Disputed Land. That evidence is inadmissible as evidence for the purpose of drawing inferences as to what the 1997 Transfer transferred. Had the evidence been admissible, I would not have accepted that Mr Colgrave did not intend to transfer the Disputed Land. On the plan he drew it is not at all clear that the Disputed Land is excluded from the land to be sold. Had Mr Colgrave intended to exclude the land, I would have expected him to have told his solicitors in terms of his intention to do so and why he was so doing and then the solicitors to have made an attendance note of their instructions in this regard. The vendors’ solicitors’ conveyancing file was in evidence. It does not contain any such attendance note. There is nothing in the file at all to indicate that they had instructions to exclude the Disputed Land.

 

25. Turning then to admissible extrinsic evidence, I consider firstly evidence of physical features on the ground at the date of the 1997 Transfer. There is both photographic evidence and witness evidence. An aerial photograph taken on 17 ^th July 1986 was produced. In that photograph it is possible to see a wall in the position of the current block wall at the eastern side of the garden of Stibb Farm Cottage. To the east of this wall there is a wide grass area bordered to the east by a gravelled or metalled area forming a track running beside the western flank wall of the Stibb Farm barns. A telegraph pole can be seen in the south western corner of the grass area. There was no evidence as to what, if any services there were in the ground of the Disputed Land or the adjoining track.

 

26. Ms Jones produced another aerial photograph. Her evidence was that this photograph was taken shortly after she and Mr Mooney moved into 1 Stibb Barns and there is no reason for me to doubt that it was taken when Ms Jones said it was taken. The photograph is taken from the south looking north over the cluster of buildings that is Stibb Farm House, Stibb Farm Cottage and Stibb Barns. Land in the approximate area of the Disputed Land can be seen in this photograph apparently covered in grass and can be contrasted with the stone surface of the adjoining lane or roadway. It is not possible to see from the photograph whether the western edge of the grass is in the same position in both photographs.

 

27. None of the witnesses disputed that the physical features on the ground at the date of the 1997 Transfer were as shown in the two photographs. Mr Michael Colgrave in his witness statement described the Disputed Land at the time of the 1997 Transfer as a “grassy area” and “not part of the actual roadway”. There is no evidence that there was any form of kerb or other defining physical feature marking the edge of the grass area. There was no such feature visible on my inspection and I consider that if there had been any such feature in existence at the date of the 1997 Transfer, evidence about it would have been given at the hearing. Further, there was no evidence of any difference in levels between the grass area and the metalled area at the time of the transfer. There was no difference in levels readily discernible on the site inspection. There is now a metal stay cable attached to the telegraph pole at one end and the ground at the other end. It is not in dispute that the cable was re-positioned in 2009. It was put to Ms Jones in cross-examination that when she and Mr Mooney purchased 1 Stibb Barns, the base of the cable originally touched the ground at a point at the eastern edge of the Disputed Land. Ms Jones was unable to confirm if this was the case and there was no other witness evidence about the position of the cable. It is not at all surprising that Ms Jones could not so confirm, not only because a number of years have passed by but also because there was not at the time of the purchase and is not now any clear physical feature marking the eastern edge of the Disputed Land.

 

28. I turn secondly to consider the use being made of the Disputed Land at the date of the 1997 Transfer. There is evidence that the Disputed Land was being used at the date of the transfer by Mr Evans, the then owner of Stibb Farm Cottage for car parking. On 12 ^th April 2000 Mr Evans made a statutory declaration in which he said that since the time of his purchase of Stibb Farm Cottage he, his tenants, friends and servants had occupied the Disputed Land and another area to the immediate north of the cottage

“partially as a hard surfaced yard area and partially as a car parking area without objection, hindrance, interruption, or payment”.

Annexed to the statutory declaration was a plan showing the areas Mr Evans said he had occupied. The areas shown on that plan included the Disputed Land. Mr Michael Colgrave made a statutory declaration dated 17 August 2011 in which he said that at the time of the sale to Mr and Mrs Mooney, he was aware that the Disputed Land had been used by Stibb Farm Cottage and that the owner of Stibb Farm Cottage was at that time trying to assert ownership over the Disputed Land. He gave evidence at the hearing, in which he confirmed the truth of the contents of the statutory declaration. Mr Hopkinson has lived at Stibb Farm House since 1988. He gave evidence that Mr Evans parked his car on the Disputed Land

 

29. I consider thirdly the contract between the parties pursuant to which the 1997 Transfer was made. The description of the land agreed to be sold and the contract plan do not assist. They add nothing to the parcels clause in the 1997 Transfer and the transfer plan. The contract did provide that the property was sold “with vacant possession on completion” and with full title guarantee.

30. I consider fourthly other facts existing at the date of the 1997 Transfer, which would have been within the knowledge of one or more of the parties at the time. I have already mentioned that Mr Michael Colgrave said that he was aware at the time of the 1997 Transfer that the owner of Stibb Farm Cottage was trying to assert ownership over the Disputed Land.

 

31. Fifthly, I consider evidence of the conduct of the parties subsequent to the 1997 Transfer. The conduct of their neighbours and the parties’ reactions or lack of reactions to that conduct may also be relevant.

(1) Ms Jones said that she and Mr Mooney maintained the Disputed Land, planting shrubs beside the concrete block wall, cutting the grass and maintaining the “unmade road”. In cross-examination, Ms Jones maintained that she and Mr Mooney planted shrubs along the concrete wall and that she had cut the grass. Mr Hopkinson gave evidence that in 1997 he cleaned Badgers Cottage on a weekly basis. It was then being let out as a holiday cottage. Mr Hopkinson did not at that time see any signs that the Disputed Land was being maintained. Between 2002 and 2006 Stibb Farm Cottage was let out as a holiday cottage and Mr Hopkinson said that during this period he cleaned the cottage weekly or fortnightly and that he cut the grass on the Disputed Land and trimmed the hedge beside the concrete block wall. He did not see anyone else cutting the grass or any signs that anyone else had cut the grass. He didn’t see any signs of cultivation of the Disputed Land.

(2) Having considered this evidence, I find that Ms Jones and Mr Mooney did little, if any, work to the Disputed Land. Mr Hopkinson appeared to be an honest and straightforward witness. He has no direct interest in the outcome of the proceedings. I consider that he would have noticed had Ms Jones and Mr Mooney regularly done any maintenance work to the Disputed Land.

(3) Mr Hopkinson also gave evidence that from 1988 while Mr Evans lived at Stibb Farm Cottage, Mr Evans parked his car on the Disputed Land and that subsequently his tenants parked there. Mr Hopkinson said that when Stibb Farm Cottage was owned by Mr Evans but unoccupied, Mr Hokinson’s visitors had parked on the Disputed Land. This happened regularly on Mondays. Mr Mooney had only once asked him to move his visitors’ cars. The Respondents did not substantially challenge this evidence and I accept it.

(4) By a transfer dated 4 ^th April 2000, Mr Steve Cottle purchased Stibb Farm Cottage from Mr Evans. While he was the owner, he planted a hedge or at least some shrubs in the Disputed Land beside the block wall on the east side of the garden of the cottage. He also put wooden posts in the Disputed Land beside the concrete block wall to support trellis panels. Further, he constructed the porch which now stands. Ms Jones and Mr Mooney did not do anything at the time to object to these actions by Mr Cottle.

 

32. Finally, there was evidence of the conduct of successors in title to the original parties, that is of the Respondents and of the Applicants since the Respondents took the transfer of the Disputed Land from Mr and Mrs Colgrave and Mr and Mrs Andrews. I do not consider that this evidence has any probative value in determining what land was transferred by the 1997 Transfer.

 

Was the disputed land included in the 1997 transfer?

33. I consider that the Disputed Land was included in the 1997 Transfer for the following reasons.

(1) The key point in my judgment is that there was not at the time of the 1997 Transfer any physical feature marking a boundary between the Disputed Land and the land to the east. There was no wall, fence, kerb or change of levels or even row of pegs marking any such boundary. The only physical features were the wall of the cottage and the garden gate and wall on the western side and the walls of Badger Cottage and of Number 1 Stibb Barns with the gate between them on the other side. I do not regard the grass growing on the Disputed Land as providing a clear boundary. The line of the grass will change depending on the seasons and what vehicles pass over it. If an owner of land intends to sell a part not physically divided from another area he intends to keep, one would expect him either to peg out the land to be sold or to set out measurements on a transfer plan from which the boundaries of the land being sold could be ascertained. This did not happen in the present case. In the absence of any such marking out or measurements, I consider an objective bystander looking at the 1997 Transfer on the ground at the date of the Transfer would conclude that what was being transferred was the land stretching between the block wall and eastern elevation of Stibb Farm Cottage on one side and the walls of Badger Cottage and 1 Stibb Barns on the other side.

(2) The fact that the then owner of Stibb Farm Cottage was at the date of the 1997 Transfer using the Disputed Land for parking does not in the circumstances indicate that it was not included in the Transfer. Land transferred by the 1997 Transfer was transferred expressly subject to rights of parking in favour of land which by that date comprised Stibb Farm House and Stibb Farm Cottage.

(3) The lack of objection by Ms Jones and Mr Mooney to the planting of the shrubs and fixing of fence posts in the Disputed Land by Mr Cottle is not indicative of the Disputed Land not having been transferred by the 1997 Transfer. They were not actions which were likely to adversely affect Ms Jones and Mr Mooney’s enjoyment of the Disputed Land and their lack of a response can be seen as merely neighbourly tolerance.

(4) The lack of objection by Ms Jones and Mr Mooney to the erection of the porch by Mr Cottle is surprising if they thought at the time that they had purchased the land on which the porch stood. However, given the position of the porch on a narrow area of land in the angle between two walls of Stibb Farm Cottage, I do not consider that this indicates anything as to Ms Jones and Mr Mooney’s understanding of the ownership of the larger part of the Disputed Land, being that part to the south of the porch.

(5) Whilst Mr Evans trying to assert ownership to the Disputed Land might have provided a motive for the owners choosing to exclude the Disputed Land from the transfer, I do not consider that in this case it indicates that the Disputed Land was excluded. If there was a deliberate wish to exclude a part of the single open area from the transfer because of a claim by a third party or otherwise, one would expect the boundaries of the land transferred to be clearly set out in the transfer. This did not happen.

(6) The conduct of Ms Jones and Mr Mooney after the Transfer does not assist in determining what land was included in the 1997 Transfer. Given that under the terms of the 1997 Transfer, they took subject to the rights of others to park on part of the land transferred and that the Disputed Land appears to be an obvious place for parking, it is not surprising that Ms Jones and Mr Mooney did not do very much on this area of land and that it was maintained by and on behalf of those who had a right to park on it.

 

 

 

Rectification of the Register

34. The registrar has power under paragraph 5 of Schedule 4 to the Land Registration Act 2002 to alter the register for the purpose of correcting a mistake. Paragraph 6(2) provides that no alteration affecting the title of the proprietor of a registered estate may be made without the proprietor’s consent in relation to land in his possession unless

“(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or

(b) it would for any other reason be unjust for the alteration not to be made”.

Paragraph 6(3) provides that if on an application for alteration, the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration.

 

35. Section 131 of the Land Registration Act 2002 provides that for the purposes of the Act,

“land is in the possession of the proprietor of a registered estate in land if it is physically in his possession …”.

The Respondents submitted that they were in possession of the disputed land at the date of the application to alter the register. Counsel for the Respondents referred me to Powell v. McFarlane (1977) 38 P&CR 452 and to the following passage in the judgment of Slade J. at p.471

“In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. “What is a sufficient degree of sole possession and user must be measured according to an objective standard , related no doubt to the nature and situation of the land involved but not subject to variation according to the resources and status of the claimants”: West Bank Estates Ltd. v. Arthur per Lord Wilberforce. It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence possession. ….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”.

Slade J. had preceded this passage with the following words

“(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed”.

This passage was cited with approval by Lord Browne-Wilkinson in JA Pye (Oxford) Ltd v. Graham [2002] UKHL 30 at paragraph 41. It is a passage concerned with what constitutes possession for the purposes of an adverse possession claim under the Limitation Act 1980 but I consider that it is of assistance in considering whether the Respondents were in possession of the disputed land in the present context.

 

36. In so much as the porch of Stibb Farm Cottage stands on the Disputed Land, there is no doubt that the Respondents were in possession of the area of the porch at the time the Applicants made their application. The Respondents also kept their refuse bins and recycling tubs beside and just to the east of the porch. However, the area of the porch (including the narrow area to the east on which the bins were kept) is quite distinct from the remainder of the Disputed Land and I do not consider that their possession of the porch area amounts to possession of the remainder of the Disputed Land.

 

37. The Respondents were registered as proprietors of the Disputed Land on 26 ^th September 2011. The Respondents’ evidence was that after they were registered as proprietors of the land, Mr Andrews left a vehicle on the land for a number of weeks and that in January 2012, Mr Andrews placed a trailer on the land and was “regularly trespassing” onto the land. The evidence from both parties was that prior to the transfer of the Disputed Land to the Respondents, there were disputes between the parties about parking on the Disputed Land. It would appear that these disputes continued after the transfer to the Respondents and that the Applicants continued to park from time to time on the Disputed Land. The Applicants said in closing submissions that some time after the transfer of the Disputed Land to the Respondents, the Applicants were warned by the police not to go near the Respondents. As the date of the application is 16 February 2012 and Mr Andrews placed the trailer on the Disputed Land in January 2012, it seems likely that the Applicants were on the Disputed Land at the time of the application. It may be that for a fairly short period in 2012 leading up to the making of the application, the Applicants did not park on the Disputed Land but this was because of a decision by the Applicants to abstain from parking pending the legal determination of the dispute as to ownership of the Disputed Land and not because the Respondents were exercising exclusive physical control of it.

 

38. In the circumstances I do not consider that the Respondents had at the date of the application a sufficient degree of exclusive physical control of the Disputed Land (save for the area of the porch) to amount to possession of it, except for the area of the porch. I conclude that the Respondents were not in possession of the Disputed Land at the date the Applicants made the application to alter the register.

 

39. As the Respondents were not in possession of the Disputed Land at the date of the application and there is a mistake on the register, the registrar has power to alter the register and the alteration must be made unless there are exceptional circumstances which justify not making the alteration. The Respondents submitted that there were exceptional circumstances justifying not altering the register. In Paton v. Todd [2012] EWHC 1248 (Ch), Morgan J said this about “exceptional circumstances”

“Thus in a case within para 6(3), the court must ask itself two questions: (1) are there exceptional circumstances in this case? and (2) do those exceptional circumstances justify not making the alteration? The first of these questions requires one to know what is meant by “exceptional circumstances” and then to establish whether such circumstances exist as a matter of fact….

67. “Exceptional” is an ordinary, familiar English adjective. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual or special, or uncommon; to be exceptional a circumstance need not be unique or unprecedented, or very rare but it cannot be one that is regularly, or routinely, or normally encountered: see R v Kelly [2000] 1 QB 198 at 208 C-D (a decision from a very different context but nonetheless helpful as to the ordinary meaning of “exceptional circumstances”). Further, the search is not for exceptional circumstances in the abstract but for those which have a bearing on the ultimate question whether such circumstances justify not rectifying the register.”

 

40. The circumstances relied on by the Respondents were the open use of the land by the Respondents and their predecessors in title and the Applicants’ delay in seeking rectification. I do not consider those circumstances so far as they relate to the land other than the land covered by the porch, to be exceptional. Furthermore, save for the area of the porch, I do not consider those circumstances to be such as to justify not making the alteration to the register. The delay might have justified not making the alteration to the register if the delay caused or encouraged the Respondents to purchase. There was no evidence that this was the case. The Respondents took a transfer of the land in the knowledge that the Applicants claimed to be the owners of it. They must be taken to have bought with knowledge that the register could and might be rectified. The area of the porch is somewhat different but I have found that the Respondents were in possession of the area of the porch at the time of the application and so the question of whether there were in relation to the porch exceptional circumstances within the meaning of paragraph 6(3) does not arise.

 

41. If I had found that the Respondents were in possession of the whole of the Disputed Land at the date of the application (and not only the area of the porch) then I would have found that it would have been unjust not to rectify the register so as to remove from their title the Disputed Land save for the area of the porch. The Respondents knew at the time they took a transfer of the Disputed Land that the Applicants asserted that they were the owners of the Disputed Land. This appears clearly from the correspondence in 2008 when the Respondents sought to register possessory title to the Disputed Land. The Respondents chose not to alert the Applicants of their intention to take a transfer or to register the transfer. Having taken the transfer of land, which on the facts I have found had been transferred to the Applicants, they involved the police to keep the Applicants off the Disputed Land and thereby enable themselves to say that they were proprietors in possession. It would not be just in all the circumstances not to rectify the register.

 

Conclusions

42. The Disputed Land was transferred to the Applicants by the 1997 Transfer. In the circumstances, the registration of the Respondents as proprietors of the Disputed Land was a mistake and there is a mistake on the register. The registrar has power to rectify the register and I shall direct him to make the alteration save that the area of the porch shall not be removed from the Respondents’ title.

 

43. As to costs, my preliminary view is that costs should follow the event and that the Respondents should pay the Applicants’ costs of the proceedings. The costs of litigants in person before the Adjudicator to HM Land Registry were limited to their out of pocket expenses. Any party who wishes to submit that I should make a different order as to costs, should serve written submissions on the Tribunal and on the other party by 5pm on 2 ^nd December 2013.

 

BY ORDER OF THE TRIBUNAL

 

 

 

 

DATED 15 ^th NOVEMBER 2013