PROPERTY CHAMBER

FIRST –TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

REF NO 2013/0265 and REF NO 2013/0264

 

BETWEEN

 

 

(1)    MICHAEL FRANKLAND

(2)    JAYNE FRANKLAND

Applicants

and

 

 

 

GARY STUART SMITH

 

Respondent

 

Property address: Land adjoining 19 Bridge End, Billington, Clitheroe

Title number: LAN131089

 

 

Before Judge McAllister

Manchester Asylum and Immigration Tribunal

4 February 2014

 

Representation: Mr Foster of Counsel instructed by Forbes Solicitors appeared for the Applicants; Mr Goldstein of Counsel instructed by Messrs Steel and Son appeared for the Respondent

 

___________________________________________________________________________­

 

DECISION

Introduction

 

1.                     By an application dated 20 July 2012 the Applicants (‘Mr and Mrs Frankland’) applied for first registration of a piece of land adjoining 19 Bridge End, Billington (‘the Disputed Land’). Mr and Mrs Frankland are the freehold owners of 19 Bridge End, Billington and have occupied this property since January 1998, first as tenants, then as freehold owners. Paper title to the Disputed Land was conveyed to them by Charles Henry Petre and Robert Bernard Petre at the direction of the Dunkenhalgh Estate (‘the Estate’) by a transfer dated 2 July 2012. The application was allocated provisional title number LAN131089.

 

2.                     The Respondent, Mr Smith, objected to the application on the grounds that he had acquired title to the Disputed Land by adverse possession. On 26 July 2012 he made an application to the Land Registry to be registered with possessory title of the Disputed Land.

 

3.                     The matters were referred to the Adjudicator (as he then was) on 5 April 2013. By an order dated 23 April 2013 the two references were consolidated. Mr Smith remained the Respondent. It is common ground that Mr and Mrs Frankland have paper title to the Disputed Land. The only issue therefore is whether Mr Smith can establish title to all or part of the Disputed Land by adverse possession. His claim is that he has been in occupation since 1988 without the consent of the paper title owner. As the Disputed Land was unregistered, the claim falls to be determined pursuant to the transitional provisions in paragraph 18 of Schedule 12 to the Land Registration Act 2002, that is to say by applying the provisions of the Limitation Act 1980.

 

4.                     I had the benefit of a site view on 3 February 2013. The Disputed Land runs from the main road (to the south) down to the River Calder to the north. On the east it is bounded by 19 Bridge End Road, and on the west by a field. Set back from the road is a building (which one had the number 23 Bridge End Road, and which I will refer to as ‘the Garage’). The Garage is a large wooden structure on two levels. The back is supported by bricks. There is locked entrance on the road side and locked double doors at the rear. There is also a trap door and steps leading from the street level floor to the lower floor. At the time of the site visit the Garage was full of furniture, wood, building materials and assorted items, and there was no indication that they had been placed there recently.

 

5.                     It is possible to park a number of cars in front of and at the western side of the Garage, but it is clear from the evidence that this area is used by a number of people for parking. The plan attached to the application for first registration by Mr and Mrs Frankland, and the application made by Mr Smith, in any event exclude the area in front of the Garage. I will therefore exclude this area from the Disputed Land. The remainder of the Disputed Land is laid to rough grass. The total area of the Disputed Land is some 0.206 acres.

 

6.                     For the reasons set out below I will order the Chief Land Registrar to cancel the Applicants’ application and to give effect to the Respondent’s application in so far as it relates to the Garage. In other words, Mr Smith can establish title by adverse possession to the Garage only, but not to the remainder of the Disputed Land.

 

7.                     The Disputed Land falls away from the road down to the river, and there is a separate entrance to the south side of the Garage at lower ground floor level. Access to this is from steps leading down by the side of No 19 Bridge End Road, and along a very rough path to the Garage. A right of way by prescription has undoubtedly been obtained from the steps to this entrance. Accordingly I will further order the Chief Land Registrar to make an entry on the respective titles to in respect of this right of way.

 

Background and evidence

 

8.                     Mr and Mrs Frankland purchased the Disputed Land for £10,000 from the Estate. The transfer contains a restrictive covenant to the effect that the Disputed Land will not be used other than as amenity/garden land and outbuildings in connection with No 19 Bridge End.

9.                     It is their case, in essence, that since they have lived at No 19 Bridge End (as tenants for a year prior to the purchase in 1999 and continuously thereafter), the land within the Disputed Land was overgrown and uncultivated, and that the Garage has been abandoned and derelict. I will deal with their evidence in more detail below.

10.                 It is not in disputed that Mr Smith’s father, Ronald Smith, was the tenant of the Disputed Land by reason of a yearly periodic tenancy from the Estate which began in 1956. The documentation relating to the tenancy describes the letting as ‘Land for Shop’ and the plan attached shows all the Disputed Land (and, for the avoidance of doubt, not the area in front of the Garage). Mr Smith Snr used the Garage as a garage for cars and motorcycles. He was also a qualified driving instructor. Mr Smith helped him from an early age. The garage was open every day from 6pm to 8pm Monday to Friday, and from 2pm to 4pm on Saturday. When old enough to do so, Mr Smith helped with delivering vehicles.

 

11.                 In about 1988 Mr Smith Snr retired, and, it is said, handed the keys to the Garage to Mr Smith. By letter dated 8 November 1989, written by a firm of solicitors on their behalf, Mr Smith, together with his father, offered to buy the Disputed Land. The offer was to buy at a nominal price in view of the long tenancy. Mr Smith’s case is that he was not a joint tenant with this father, but accepts he wanted to buy. It is also common ground that this letter is an acknowledgment of title within section 30 of the Limitation Act 1980. In order to be entitled to acquire all or part of the Disputed Land by adverse possession, Mr Smith must establish the requisite degree of factual possession and intent to possess for a period of 12 years from that date. There was no reply to this letter and Mr Smith, on his case, continued in occupation of the Garage (and the remainder of the Land) without paying any rent. The Estate records show that the rent had been increased to £20.00 a year in 1977.

 

12.                 In 1991 the Estate sent Mr Smith a demand of rent due to 1 November 1991.A further letter was written in 2001. This letter referred to a meeting on site. Mr Smith’s evidence was that he had no dealings with the Estate. In a recent letter dated September 2012 the solicitors for the Estate stated that, to the best of the Estate’s knowledge, the land was never occupied after 1981 and no rent was paid after that date (the date of 1981 is clearly wrong).

 

13.                 Mr Smith was married between 1992 and 1997, but had lived with his wife from the 1980s. Mandy, his ex wife, wanted to use the land itself, and Mr Smith’s evidence is that he re-fenced it. I have seen an invoice dated 7 August 1990 referring to fencing of land at Bridge End. At this time, the land was used for growing vegetables, housing chickens, and other activities. The Garage was full of building materials, furniture, children’s toys and catering equipment. Mandy organised a garage sale. She used the land for 3 to 4 years to grow vegetables in the 1990s. She also applied for planning permission to use the Garage for a taxi business in 1991, involving two taxis and one minibus, but then withdrew the application. The existing use was described in the application as ‘ sale and repair of motor vehicles and motor cycles for last 29 years’.

 

14.                 There is an issue as to whether Mr Smith repaired the stone wall dividing the Disputed Land from Mr and Mrs Frankland’s property (ie the east side), near the river. It is his case that this work was done in the early 1990s. Mr Smith accepted in cross examination that some work to the wall was done by Mr Frankland.

 

15.                 It seems to me clear from the evidence that very little use, if any, of the land to the north of the Garage sloping down to the river was made by Mr Smith after he separated from his wife. Mr Smith puts it in terms of allowing the land to go back to nature. He accepted that the land was as it appeared on the site visit from 1997 onwards.

 

16.                 Mr Smith informed the rating authority that he had taken over the Garage. Rate demands were issued in Mandy’s name, and were paid, until the Disputed Land was rated as exempt from 1993 onwards, and were then transferred into Mr Smith’s name in 2000. In 1990 Mr Smith, through his surveyor, appealed against the level of rates. The appeal was successful in that the rates were reduced from £1850 to £600. Counsel for Mr and Mrs Frankland made much of the point that the Garage was rated as exempt, and that this could only be because the Garage was unoccupied, and declared to be such, by Mr Smith. There is, it seems to me, a simple answer to this point. The fact that a commercial building is treated as unoccupied (if indeed it was) for rating purposes does not mean that it is not in the possession of the owner, tenant, or squatter, as the case may be. Conversely, payment of council tax by a squatter is strong evidence that he is resident, but not necessarily that he is in possession.

 

17.                 As I have mentioned above, on the occasion of the site visit the Garage (which is locked) was full of furniture, builders equipment, toys etc. I have seen photographs taken in the mid 1990s which also show the Garage crammed with all sorts of objects. Electricity was supplied to the Shed until 2003. Mr Smith’s evidence is that he asked for the electricity to be disconnected for safety reasons: the building is made of timber, there is a lot of flammable material in the Garage, and the electricity supply did not conform to current safety standards (although it is fair to say that it was deemed ‘satisfactory’ following a visit by Norweb in 1989).

 

18.                 Prior to steps being built along the western side of 19 Bridge End, there was only a sloping cinder path. On 5 June 2000 Mr Frankland wrote a letter to Mr Smith thanking him for allowing him to build the steps (which encroached onto the Disputed Land) and offering to buy the Disputed Land from Mr Smith. The letter stated that Mr Frankland believed Mr Smith owned the Land. I will come back to this point below.

 

19.                 On behalf of Mr Smith, I also heard evidence from Gail Benson, Carlton Pirt, and Malcolm Fletcher. Gail Benson first became aware of the Disputed Land in about 1980. She worked with Mr Smith Snr at Calderstones Hospital, and was aware that he ran a garage for motorcycle repairs. The Garage was securely locked, and the motorcycles were kept there. Later on, she became friends with Mr Smith’s ex wife, and knew that the land behind the Garage was used for growing vegetables in the mid 1990s. More recently, in 2005, she and her partner Carl Pirt stored furniture in the Garage when they were moving house. Mr Pirt confirmed this. Part of the furniture is still stored in the Garage.

 

20.                 Mr Fletcher has known Mr Smith for some 40 years. At one point the Garage was used as a café, with tables and chairs outside. He recalls buying a couple of vehicles from Mr Smith Snr. Following Mr Smith’s marriage to Mandy, the land at the rear was kept neat for a few years: she kept a few hens, and grew vegetables. After she left the land was left as it is now. He also stated that the fence on the western side, adjoining the field, was always maintained, albeit that it appears to be common ground that it was possible for cattle to stray into the Land at times. To this day he stops off to see Mr Smith at the Garage, and is aware that he stores materials and furniture there. He recalls the Garage being called Bridge End Motorcycles, and that cars were also sold. He also confirmed Mr Smith’s evidence that tipping of rubble and other material took place on the west side of the Garage.

 

21.                 Mr Frankland’s evidence is that, when he first visited 19 Bridge End, at the end of 1997 the Garage was derelict and the land uncultivated. The boundary between 19 Bridge End and the land was open, although there were the remains of a post and wire fence down by the river. The position remained the same after he and his family moved in. In particular he describes the land as covered in bushes, weeds and trees, and tall tangled undergrowth. A number of cars were parked in the area in front of the Garage (measuring some 5 metres by 5 metres) and he would often leave his car there.

22.                 Mr Frankland made some inquiries as to who owned the Disputed Land, and was told that it had been used as a motorcycle repair shop sometime earlier. Some two and a half years after he moved into 19 Bridge End, he met Mr Smith and asked him if he could tidy up the land and generally make it less of an eyesore.

 

23.                 19 Bridge End required a considerable amount of work. This was done between 1999 and 2002. In the course of this, it was decided to put in new steps by the side of the property and a new wooden post and rail fence which could be used as a hand rail. A gap was left in the fence to allow access to the Disputed Land to chop down the weeds, and cut back the trees and shrubs, which he does at least twice a year. Mr Frankland also planted shrubs on the Land, principally to camouflage the Garage. Material from the building works was also deposited by him on the Land. His evidence was that he did not agree to leave a gap for Mr Smith to gain access to the rear of the Garage. Mr Frankland took a number of photographs at the time. In about May or June 2000 Mr Frankland built a dry stone wall at garden level from the bottom of the steps to the river. The wall runs for approximately 15 metres and is 1 metre high. It is his case that there was no wall there of any sort.

 

24.                 In cross examination Mr Frankland stated that he was not sure who owned the Disputed Land. He had made a number of inquiries from local people and concluded that the Land was either owned by the Estate or Mr Smith. So far as the steps were concerned, it was only when the steps were in the process of being built that he realised that they would encroach some 18’’ into the Disputed Land. This led to the discussion with Mr Smith and the letter referred to above. He never received a reply to that letter.

 

25.                 From February 2001 onwards Mr Frankland was in contact with the Estate with a view to purchasing the Disputed Land. In the course of writing he complained about trees falling from the Disputed Land onto his land, and vandalism in the lower part of the Garage, with the effect that the lower doors remained open for some 12 months. This led to a further letter to the Estate in 2008. The Estate did not reply, and seemed to take very little interest in this parcel of land.

 

26.                 Mrs Frankland confirmed her husband’s evidence and added that she had gone into the lower part of the Garage in 2008 when it was open in search of her cat. She described the lower part as being full of rubble, junk and wood. Mrs Frankland also stated that she regularly parked her car on the area outside the Garage. She too stated that she rarely saw Mr Smith, and saw very little activity connected with the Garage.

 

27.                 I heard evidence from Mr Hollick and Mr McMellon on behalf of Mr and Mrs Frankland. Mr Hollick has lived across the road from the Disputed Land since 1974. He described in some detail the deterioration of the Garage over the years, and how he originally considered it a beautiful 50s building, something out of an old motoring magazine, which has been allowed to deteriorate over time. He also stated that since the garage closed in the 1980s he has not seen anyone go in or out of it.

 

28.                 Mr McMellon has lived at No 1 Bridge End since March 1993. He too stated that the Garage appeared derelict and in poor state of repair. The land behind the Garage has always been untidy and overgrown, unless cut back by some of the residents of Bridge End. In cross examination he stated he didn’t know or recognise Mr Smith and would be surprised to be told that he visited regularly. He accepted, however, that he had no reason to examine the land behind the Garage, and that his evidence rested on general impressions. He also stated that a number of people parked in front of the Garage, including a Mr Wright, who acted as though the space was his.

 

Conclusions on the evidence and analysis

 

29.                 In my judgment it is overwhelmingly clear that Mr Smith has been in exclusive possession of the Garage since his father’s retirement in or about 1988. He alone has had a key to the doors to the Garage. The Garage has been used over the years as a depository for furniture, materials, and all sort of items. It is clear from the photographs, all the evidence, and indeed the site view, that it has been crammed with an assortment of things. For a time electricity was supplied (and paid for by Mr Smith). Mr Smith is in the Council’s records as the rate payer. His former wife applied for permission to use the Garage as a taxi office.

 

30.                 It is also clear, in my judgment, that Mr Smith was in occupation without the permission of the Estate. He did not pay rent, and no steps were taken to evict him. Indeed it seems that the Estate took very little interest in the Disputed Land over the years. His occupation continued, without consent, following the acknowledgement of title in November 1989.

 

31.                 The test for factual possession is that of exclusive control: see Powell v McFarlane (1977) 38 P&CR 452. This is determined by considering the nature of the land and the manner in which land of this nature is commonly used or enjoyed. In the case of a building which is not residential, and is effectively a storage space, the best indication of possession is the very fact that goods are stored there and no-one else has access other than the squatter. It is also clear that Mr Smith at all times had the requisite intention to possess.

 

32.                 In Purbrick v London Borough of Hackney [2004] 1 P&CR 34, the squatter was a builder. He cleared out rubbish from a burnt out shell of a derelict shed, with no roof or door, stored materials in it, and covered it with a tarpaulin. He also blocked the doorway with corrugated iron which he locked and chained in place. The court held that it was irrelevant that he had not put a roof on the building: the fact that he could have done more with it could not defeat a claim for adverse possession. It would be a rate case, the court added, where the failure to carry out repairs or improvements to a dilapidated property meant that the squatter did not have the requisite degree of factual possession.

 

33.                 It is also settled law that a squatter need not use the land continually: see Bligh v Martin [1968] 1 WLR 804. Mr Smith plainly visited and used the Garage at various times over the years (and indeed furniture was stored there on behalf of others as recently as 2005). Moreover, it is right to say that once the period of 12 years has elapsed (which in this case would have been in 2001) the paper owner’s title was barred, and thereafter, unless it can be shown that he has abandoned possession, the squatter’s title remains good (and the law on this point is not entirely clear: there is an argument that his title remains good unless some other person acquires the land by adverse possession). In any event, in this case, the position is clear: Mr Smith did not, at any time, abandon possession of the Garage.

 

34.                 However, on the facts of this case, the question arises whether, if Mr Smith can establish title by adverse possession, he can also do so in relation to the remainder of the Disputed Land. In my judgement, he cannot. There is ample authority for the proposition that acts on one part of an area may be treated as constituting possession of the whole area provided that ‘there is such a common character of locality as would raise a reasonable inference;’ that, if a person were possessed of one part, he would possess the whole of it. So, at one extreme, a person who has occupied a house but only used one small part of it, will be taken to have had possession of the whole, and at the other, a person who cultivates a small part of a very large field cannot be said to be possession of the whole field.

 

35.                 In this case, the following facts, are in my judgment, relevant. The history of the Garage has been amply set out in evidence. The building was once a garage for motorcycle repairs, with access to it from the road, and, in so far as access to the lower part was gained from the back, from the side. There would be no apparent reason to make use of the land at the back in connection with the Garage, either when it was used for the purpose of repairing motorcycles or when it was used as storage. There is indeed no evidence of any use having been made of the land at the back, save for a brief period in the mid 1990s, by Mr Smith’s ex wife. Such fencing as there was on the western side and northern side was designed to keep the cattle in the adjoining field from straying into the Disputed Land and from there to number 19 Bridge End. There was no ‘common character of locality’ between the Garage and the land. I am of course aware that the land formed part of the tenancy granted to Mr Smith Snr, but the question I have to decide is whether Mr Smith obtained adverse possession of the whole of the Disputed Land from 1989 onwards. The definition of the demised land is of no real assistance on this point.

 

36.                 Mr Smith readily accepted that he did not do anything on or to the land after his ex wife left. I do not accept that the decision to allow the land to be left to its natural state can be said to amount, on the facts of this case, to adverse possession. I fully accept the evidence of Mr and Mrs Frankland that they went on to the land regularly for the purpose of cutting down the weeds and bushes and generally to make it less unsightly. Both the Franklands and Mr Smith have used the land, at times, it seems to deposit rubbish. I prefer Mr Frankland’s evidence relating to the construction of the wall: I do not accept that Mr Smith erected a wall as he claimed to have done.

 

37.                 In short, on the facts of this case, there is no reason to treat the Disputed Land as having ‘a common character of locality’, or, to put it another way, to treat the acts of possession relating to the Garage as raising the reasonable inference that he was also in possession of the land at the rear (see, for example, West Bank Estates v Arthur [1967] 1 AC 665.) The true question is the extent of the Disputed Land that was in fact used. The Garage and the land are separate and distinct: and Mr Smith has failed, in my judgment, to establish exclusive possession of the land at the rear for any period of 12 years.

 

38.                 The order I have drafted allows for liberty to apply in respect of the right of way to rear of the Garage in the event that the Land Registry, or the parties, wish to comment, although I suspect the position is more than clear enough.

 

Costs

 

39.                 In view of my order, I am minded to make no order as to costs. If either party wishes to submit that they should be entitled to costs, written submissions and a schedule of costs are to be filed and served by 25 April 2014, and replies two weeks after receipt of the same. I will then consider what order to make.

 

BY ORDER OF THE TRIBUNAL

 

 

Dated this 4 ^th day of April 2014