REF/2013/0222

PROPERTY CHAMBER

FIRST – TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

 

BETWEEN

(1) ALAN OPENSHAW

(2) GERALD MOORE

(3) NIGEL WARNE

(4) MARK HOLT

(as trustees of the East Lancashire Cricket Club)

Applicants

and

 

P&F PROPERTIES LIMITED

Respondent

 

 

Property address: East Lancs Paper Mill Cricket Club,

Croft Lane, Radcliffe M26 2RF

Title numbers: MAN47922 and provisional title number MAN188498

 

Before: Timothy Cowen

Judge of the First-tier Tribunal, Property Chamber, Land Registration Division

 

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DECISION

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1.       This is an application by the Respondent to strike out the Applicants’ application on the grounds that there is no reasonable prospect of it succeeding. The Applicants oppose the application.

2.       The Respondent is, and has been since 25 April 2006, the registered proprietor of Land at Cock Clod Street, Radcliffe (title number MAN47922 – “the Respondent’s Land”). The Applicants have applied to be registered as proprietors of part of the Respondent’s Land by reason of alleged adverse possession. The part which they claim has been given the provisional title number MAN188498 (“the Disputed Land”). The Applicants applied to HM Land Registry (“HMLR”) in February 2012 under paragraph 1 of Schedule 6 to the Land Registration Act 2002. The Respondent has required that the application be dealt with under paragraph 5 of that schedule. The matter could not be resolved by agreement and was therefore referred to this tribunal under section 73(7) of the 2002 Act in March 2013.

3.       Paragraph 1 of Schedule 6 allows a person to apply to be registered as proprietor of registered land if he has been in adverse possession of it for at least 10 years up to the date of the application. Where the recipient of the notice of that application (in this case, the Respondent) requires it to be dealt with under paragraph 5, then the application can only succeed if the Applicants satisfy one or more of the conditions set out in that paragraph. The Applicants indicated that they would rely on the first condition, namely that it would be unconscionable to dispossess them because of an equity by estoppel.

4.       The Applicants claim to be trustees of the East Lancs Paper Mill Cricket Club (“the Club”). The question of their status and standing to bring this claim is one of the issues I am asked to decide.

5.       The parties each served Statements of Case. The Applicants’ case can be summarised as follows:

5.1.    The Disputed Land has been occupied by the Club since about 1930. Since about 1982 that occupation has been adverse. It has been occupied as a cricket ground used to provide a sporting facility for employees of the neighbouring Radcliffe Paper Mill. The Disputed Land was originally part of the land occupied and owned by the Mill.

5.2.    As well as using the Disputed Land for sporting activities, the Club has replaced the fencing around the ground and has maintained the land and the clubhouse which is situated on the Disputed Land. It has a liquor licence for the bar at the clubhouse.

5.3.    The Club has not paid any rent or licence fee for the Disputed Land.

5.4.    No formal permission has been given for the Club’s occupation. The Respondent’s Land was sold to British Syphon in the late 1980s and then to the Respondent in 2006. Neither of them has given the Club permission to occupy the Disputed Land.

6.       The Respondent’ case on its Statement of Case can be summarised as follows:

6.1.    Adverse possession for 10 years by the Applicants, as trustees or in any other capacity, is denied.

6.2.    A fluctuating body of members cannot be in adverse possession as a matter of law. They are not successors in title for the purposes of paragraph 11(2) of Schedule 6 to the 2002 Act.

6.3.    The Respondent entered the Disputed Land on various occasions for various reasons during the 10 year period. Exclusive possession is therefore denied.

6.4.    There are no facts or matter pleaded in the Applicants’ Statement of Case in support of the estoppel gateway.

7.       Upon reviewing the Statements of Case, on 18 June 2013, I ordered the Applicants to give further particulars of their case and provide copies of documents in support. I also invited the parties to consider whether the matter should continue to be dealt with under Schedule 6 to the 2002 Act or whether it ought to be decided under paragraph 18 of Schedule 12.

8.       The Applicants gave the following further particulars of their case:

8.1.    There is no trust deed. The trust claimed by the Applicants is to be inferred from the nature of the relationship between the parties. It is a fiduciary duty similar to the duty incumbent upon a trustee.

8.2.    Each of the Applicants has individually been a member of the Club for more than 19 years. They each have their own adverse possessory rights as well as that of the group.

8.3.    The land was “handed over to the Club in 1983”.

8.4.    They do intend to rely on the estoppel gateway. In support they submit that:

8.4.1.       their activities have been beneficial to the community

8.4.2.       they have spent money maintaining and improving the facilities at the Club

8.4.3.       the former owners of the Paper Mill made it “perfectly clear to the officers and members of the Club that the land was ‘theirs’ to use”, in return for maintenance.

8.4.4.       the benefit to the community has been recognised by the local planning authority.

8.5.    The Applicants reserve their position as to whether the matter should be considered under paragraph 18 of Schedule 12.

9.       The Respondent made written submissions in which it insisted that the matter be dealt with only under Schedule 6 to the 2002 Act since that it the “matter” which was referred by HMLR within the meaning of sections 73 and 108. By written submissions dated 6 August 2013, the Respondent applied for the Applicants application to be struck out under rule 9(3)(e) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 (“the Rules”) on three grounds:

(a) There is no basis for saying that the Applicants are trustees. As officers of the club they have not been in possession of land.

(b) They cannot have been in possession as representatives of a fluctuating body of members because that would not satisfy the definition of adverse possession in paragraph 11 of Schedule 6 to the 2002 Act.

(c) The Applicants’ case is that their occupation of the Disputed Land was with the consent of the original owners. Their occupation is therefore not adverse.

10.   The parties’ legal representatives appeared before me at an oral hearing of the Respondent’ strike out application. The Applicants appeared through their solicitor, Mr Firman, and the Respondent appeared by counsel, Mr Weekes. Skeleton argument were ordered to be filed in advance of the hearing. I received a skeleton argument only from Mr Weekes.

11.   I shall approach this application using the same approach which is adopted by the courts when deciding an application under CPR 3.4(2) as defined in paragraph 1.4 of the Practice Direction thereto and the authorities which provide guidance, namely that even if the facts alleged by the Applicants are true, they do not disclose any legally recognisable claim. I will bear in mind that if there is an issue which can be decided only by hearing live evidence, then it would not be appropriate to dispose of the matter by strike-out. I shall approach the matter this way because the wording of rule 9(3)(e) is sufficiently similar to the wording of CPR 3.4(2)(a) to make the comparison helpful.

12.   Mr Weekes’ submissions can be summarised as follows:

Capacity and standing of Applicants

12.1.                     An unincorporated association has no legal personality. See Currie v Brown (Times 12 February 1998, CA).

12.2.                     There is no trust of which the Applicants can claim to be trustees. Nor are there identifiable beneficiaries.

12.3.                     If a body of members have been in continuous adverse possession, then they must all be parties to the application. There is no provision in the Rules for applications to be made in a representative capacity.

Gateways

12.4.                     The Applicants cannot satisfy any of the conditions in paragraph 5 of Schedule 6 to the 2002 Act.

Successive Squatters

12.5.                     A shifting body of members cannot come within the restricted circumstances in which successive squatters can succeed under paragraph 11 of Schedule 6 to the 2002 Act.

Old regime

12.6.                     It is not appropriate to stay this claim to allow the Applicants to lodge an application under paragraph 18 of Schedule 12 to the 2002 Act, because (a) the alleged handing over of the Disputed Land in 1982 was consensual (b) the Disputed Land is not clearly demarcated on the ground and (c) the Club has not effectively excluded third parties from the Disputed Land.

12.7.                     Finally, if a trust had been created under section 75 of the Land Registration Act 1925, there is no evidence that it was created in the name of the current Applicants or that it has been transferred to them.

13.   At the hearing, Mr Firman for the Applicants conceded that he was not pursuing the matter under the old regime. I therefore need not consider that question further.

14.   I heard submissions from Mr Firman for the Applicants on the issues which were live. He relies on the continuing occupation of Mr Gerald Moore who has been a member and/or officer of the Club throughout the period since 1982. Mr Firman conceded that Mr Moore had not been in single exclusive possession, but that others have had an interest in the Disputed Land with his consent and agreement.

15.   On the question of consent to occupy, Mr Firman accepted that his case was that the initial entry into the Disputed Land by the Club was with the consent of the original mill owners, but submitted that that consent was withdrawn by the Respondent’s predecessor in title. He could not offer a date on which that withdrawal of consent had taken place nor could he say that it had been communicated to the Club. He derived it by the following reasoning: since the Respondent had expressly withdrawn consent when it purchased the site in 2006, the Respondent must have been echoing a stance earlier taken by its vendor.

16.   During the hearing, the possibility was explored of consent having been withdrawn automatically upon the Respondent’s Land changing hands. The Applicants had pleaded in their Statement of Case that in the late 1980s the Respondent’s Land had been sold to an entity called “British Syphon”. Since the only party said to have expressly given consent to the Club was the original mill owner, a transfer to British Syphon in the 1980s would have meant that the Club could be in possession without any consent from then onwards.

17.   During the hearing, it was apparent that neither party had any instructions or evidence as to the prior owners of the Respondent’s Land. The Respondent’s solicitor gave instructions to Mr Weekes during the hearing that the Respondent’s vendors in 2006 were a Mr Boyes and a Mr Clark who were receivers of a company. He had no records of the name of the company of which they were receivers.

18.   However, a careful look at the office copy entries for the Respondent’s Land shows the following:

18.1.                     The land was first registered on 25 April 2006 when it was conveyed to the Respondent.

18.2.                     In 1999, rights of way were granted over the Respondent’s Land by deed of grant. The grantor was the East Lancashire Paper Mill Company Limited. (entry 8 in the charges register)

18.3.                     The same East Lancashire Paper Mill Company Limited had entered into a Deed of Agreement with the local council about access to the Respondent’s Land in 1912. (entry 6 in the charges register)

19.   The clear inference from the above is that East Lancashire Paper Mill Company Limited owned the Respondent’s Land from before 1912 until some time after 1999. In fact, there cannot have been any conveyance or transfer of the land prior to 25 April 2006, because that is the date of first registration of the land. Since the entire Manchester and Bury region came within the compulsory registration area in 1974, any conveyance or transfer of the land after that date would have triggered a requirement of compulsory first registration.

20.   It is therefore possible to infer with reasonable certainty that the East Lancashire Paper Mill Company Limited was the entity which gave consent to the Club to occupy the Land and continued to own the freehold estate until first registration on 25 April 2006. The receivers who sold to the Respondents re likely to have been receivers of that company. It is also safe to infer that an entity called British Syphon did not have legal title to the Respondent’s Land in the 1980s. The Applicants have provided no documentary evidence for that claim. They simply assert it in their Statement of Case.

21.   On the estoppel gateway, Mr Firman asserted that the Club had been told by the original paper mill owners that they could “use it as long as you want to use it”. This did not appear in the Applicants Statement of Case or any other documents. It was orally asserted by Mr Firman at the hearing. He went on to submit that that phrase amounted to an irrevocable consent which he described as having effect “ad infinitum”. He relies on the Club’s expenditure on the Disputed Land as the detriment required to establish the estoppel. He asserts that this promise by the original owners binds the current owner, the Respondent. The Applicants did not give a date for this alleged promise.

Reasoning and conclusions

22.   I have reached the following conclusions on the issues argued before me:

Standing

23.   I accept the legal force of everything Mr Weekes says about the issue of standing. There is no trust in the legal sense and the shifting membership body of the Club as a whole is not capable of having been in single exclusive possession of the Disputed Land for a period of 10 years. The latter point is true because paragraph 1(1) of Schedule 6 to the 2002 Act requires the person bringing the application himself to have been in adverse possession for the previous 10 years, thereby abolishing the doctrine of successive squatters under the old regime with the exception of the circumstances set out in paragraph 11 of Schedule 6. Paragraph 11 of Schedule 6 provides for two circumstances, neither of which apply in this case: the first is where the successive squatters are successors in title to each other and the second is where the squatter has been dispossessed and has then regained possession.

24.   Even if it is possible for all the members to claim adverse possession, all the members would need to be applicants since there is no legal entity which can represent their combined interest.

25.   In my judgment, there is a scenario in which these Applicants could have the requisite standing to bring the claim. If they could show that the four individuals named as Applicants had (together as a group) exercised full control over the land for a period of more than 10 years prior to the date of the application and that all the members who entered the land during that time had done so as the guests of the four Applicants, then it would be possible to argue that they had together exercised single exclusive possession sufficient to gain title. There was no such evidence and the case was not pleaded in those terms.

Permission

26.   In order for an adverse possession claim to succeed, the possession in question must be adverse. One of the requirements inherent in the word “adverse” is that possession should not be with the permission of the true owner. See for example Romer LJ in Moses v Lovegrove [1952] 2 QB 533 at 544: “…if one looks to the position of the occupier and finds that his right to occupation is derived from the owner in the form of permission or agreement or grant, it is not adverse…”.

27.   In this case, the Applicants rely as part of their case on the fact that East Lancashire Paper Mill Company Limited “handed over” the Disputed Land to them in 1982. Mr Firman accepted that this was capable of amounting to the grant of consent by the company to the Club. He submitted, however, that the permission was withdrawn. I have outlined those submissions above. I was not persuaded by his reasoning on that point. There was no logical reason to accept that, as he suggested, the Respondent’s express denial of the Applicants’ right to occupy was linked to some similar refusal of consent by the Respondent’s predecessor. The Respondent would have been free to treat occupiers as it sees fit, subject only to the law, regardless of a predecessor in title’s attitude towards them.

28.   I remind myself at this point that as well as pleading in their reply to request for further particulars that the company “handed over” the Disputed Land in 1982/83, they had previously pleaded in their Statement of Case that adverse possession commenced in 1982.

29.   Mr Weekes rightly submitted that once it is established that occupation was with consent, the burden lies with the Applicants to show that consent was withdrawn. Before the current Respondent expressed its unwillingness in about 2006 to allow the Applicants to continue to remain, there is no reasonable prospect of the Applicants demonstrating the withdrawal of consent by a previous owner. The Applicants are unable to refer to any communication received by anyone at the Club withdrawing permission to occupy, prior to 2006. In my judgment, contrary to Mr Firman’s submissions, express withdrawal of consent would have to be communicated to the Club – it is not enough for it to remain in the mind of the owner.

30.   In the absence of express withdrawal of consent, the Club would have to rely on an implied or deemed withdrawal of consent. This could have happened in two ways: (a) a change of freehold owner [1] or (b) a change of occupier. In each of those cases, either the party giving consent or the party receiving consent have left the picture and the previous consensus with it. The analysis of the title above demonstrates that there is no evidence of a change of owner until 2006.

31.   What about the changing occupiers? Clearly, in a straightforward case of one occupier leaving the land and another arriving, any licence would terminate on the departure of the first. A licence is usually personal to the licensee, so when the licensee departs, the new occupier requires his own permission from the owner. In this case, however, the permission was granted not to a particular person or specific group of named people, rather it was permission granted to the Club – by its nature a shifting body of members over time. In my judgment, all members from time to time would benefit from that permission until it is withdrawn. Otherwise it would be necessary for the Applicants to argue that as soon as the make-up of the membership body changed after 1982/83, the new members would be trespassing unless the owner of the land specifically renewed its consent for those new members. That is clearly not what the owner of the land would have intended and it is not what Mr Firman submitted to me on this application. Another way of looking at that question would be to refer to the words of Romer LJ quoted above. All new members of the Club could (prior to 2006) claim that their permission to occupy derives from the original consent given to the members of 1983.

32.   For all those above reasons, I have decided that there is no reasonable prospect of the Applicants’ establishing that they have been in occupation for a period of 10 years which is adverse within the meaning of the law.

Estoppel

33.   The final issue to resolve is whether the Applicants have any reasonable prospect of succeeding on their estoppel claim. In my judgment, they do not. There is nothing in the pleaded case to indicate what representations are said to have been made, when they were made or what steps the Club took in reliance of those representations. I note that the Applicants had the opportunity to file any evidence on which they wanted to rely on the strike out application, but they elected not to do so. The estoppel claim in this context is, in any event, relevant only if the Applicants are able to prove 10 years’ adverse possession and for the reasons stated above, I do not think they have reasonable prospects of being able to do so. That does not, of course, prevent the Applicants from making an estoppel claim in any other jurisdiction.

34.   For all the above reasons, I have decided that the Applicants does not have reasonable prospects of success on their application and I will strike out the application under rule 9 of the Rules. I will therefore direct the Chief Land Registrar to cancel the Applicants’ application.

TIMOTHY COWEN

 

 

Dated this 10 ^th day of March 2014

BY ORDER OF THE TRIBUNAL