REF/2013/0472/0473

PROPERTY CHAMBER LAND REGISTRATION

FIRST-TIER TRIBUNAL

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

(1)    ANDREW SEXTON AND SALLY ANN SEXTON

(2)    MARGARET MUIR KEMBER

APPLICANTS

and

(1)    DENNIS ARTHUR GILL

(2)    JEAN LUCY GILL

RESPONDENTS

Property Address: Land adjoining 95 and 97 Highfields Road, Highfields

Caldecote, Cambridge CB23 7NX

 

Title Numbers: CB366874 and CB366876

Before: Judge Owen Rhys

Sitting at: Cambridge County Court

On: 14 ^th and 15 ^th May 2014

Applicant representation: Mr Wilson of Counsel instructed by GJ Legal Services Limited

Respondent representation: Mr Gore of Counsel instructed by Mills & Reeve LLP Solicitors

___________________________________________________________________________­_______

D E C I S I O N

__________________________________________________________________________________

ISSUES – Adverse possession – Closure of possessory title – whether proprietors in possession at date of application – whether monies paid under wayleave agreement sufficient for purposes of section 9(5) of the Land Registration Act 2002 – availability of a qualified title under section 9(4) – Applicants as Defendants to possession proceedings – whether their claims are barred – are there exceptional circumstances which justify not altering the register within paragraph 6(3) of Schedule 4?

 

CASES CITED

 

Powell v McFarlane (1977) 38 P & CR 452

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

Commission for the New Towns v JJ Gallagher Ltd [2003] 2 P&CR 24

Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch)

Paton v Todd [2012] EWHC 1248 (Ch)

 

 

INTRODUCTION

1.       This reference arises out of a series of applications by the Applicants to be registered as proprietors of part of the Respondents’ Title number CB353314, first registered with a Possessory Title on 19 ^th April 2010. CB3533314 is described as “ 42 West Drive, Highfields Caldecote, Cambridge (CB23 7NY)”, although the house (and garden) known as 42 West Drive no longer forms part of the title, for the reasons I shall explain. The remaining land in the title consists of two separate parcels. The first – with which these references are concerned – is a narrow strip of land (“the Strip”) some six feet in width that runs between Nos. 95 and 97 Highfields Road, originally forming a means of access from Highfields Road to the east and West Drive to the west. These two roads run more or less in parallel, approximately in a north-south alignment, and the Strip runs approximately east to west. In fact, the Strip runs more like south-east to north-west, and the two parallel roads lie along a south-west to north-east alignment. However, for the sake of clarity I shall simplify the alignment to north, south, east and west. The other parcel of land comprised within the title consists of a much larger piece of land, lying to the west of West Drive, and to the south of 42 West Drive, which is the Respondents’ home. 42 West Drive itself is separately registered under Title number CB353843, having been removed from CB353314 on 23 ^rd May 2010 in the circumstances that I shall describe. The First-named Applicants (“the Sextons”) are the registered proprietors of 95 Highfields Road or “Jesmond”(“No. 95”) under Title number CB172040. The second-named Applicant (“Mrs Kember”) is the registered proprietor of 97 Highfields Road or “Westholme” (“No. 97”) under Title number CB293843. No. 95 lies immediately to the south of the Strip, and No. 97 immediately to the north.

 

THE PHYSICAL APPEARANCE OF THE STRIP

2.       The present appearance of the Strip is as follows. At the Highfields Road end, it has the appearance of a grassed passageway running from the footpath and continuing between the flank walls of Nos. 95 and 97, with a narrow tarmac (or similar) path running down the middle. At the point where the Strip passes the front corner of each house, there is a substantial wooden gate (with lock) which blocks access to the Strip from the road. Just beyond the flank wall of No. 97 there is a substantial hedge that separates this part of its rear garden from the Strip, but there is a gap between the wall and the hedge permitting access from the Strip into the rear of No. 97. Similarly, just past the rear wall of No. 95 there is a small metal gate which permits access from the Strip into the rear garden of No. 95. The Strip continues towards West Drive between the rear gardens of Nos. 95 and 97. It is largely fenced on the side of No. 95 although there are gaps affording access into its lengthy rear garden. On the side of No. 97 there is a substantial hedge, but approximately half way along the Strip the hedge stops and there is open access between the Strip and the rear garden for approximately five or six metres (by my estimation). Beyond the end of the rear gardens of Nos. 95 and 97 there are substantial fences on either side of the Strip. These mark the gardens of Nos. 43 and 45 West Drive. The Strip has no hard surface, but has been cleared of vegetation and is easily accessible on foot. As the above description suggests, the Strip is directly accessible from both No. 95 and No. 97, and is physically contiguous to the entire length of these properties. On the other hand, the Strip has no physical connection to 42 West Drive, which lies on the opposite side of West Drive.

 

THE REFERRED APPLICATIONS

3.       The applications which have given rise to these references have something of a chequered history. On 6 ^th October 2011 both sets of Applicants applied to the Land Registry in Form ADV1 to be registered with title to parts of the Strip. The Respondents objected to both applications. The disputes were referred to the Adjudicator to HM Land Registry on 9 ^th July 2012. Due to a failure by the Applicants to comply with an “unless” order, on 12 ^th October 2012 the Adjudicator ordered the Chief Land Registrar to cancel the original applications. On 28 ^th December 2012 the Sextons made a further application in Form ADV1, and on the same date Mrs Kember applied under Forms ADV1 and FR1. Again, the Respondents objected. The disputes were referred to the Adjudicator (as the Tribunal was then known) on 6 ^th June 2013. Shortly after the references were made, the Respondents applied to strike out the Applicants’ cases on the basis of alleged abuse of process. This contention derived from the fact that the previous references had been struck out for non-compliance with the Tribunal’s orders. In the event, the application failed. Part of the reason for the refusal to strike out the Applicants was the fact that there are existing injunction proceedings between the same parties in the Cambridge County Court, relating to the Strip, and the County Court had stayed these proceedings pending resolution of the references before the Tribunal. Statements of Case were then served pursuant to the Tribunal’s order, and a further interlocutory issue arose. The Respondents took the point that the Applicants, as Defendants to possession proceedings in the County Court, were precluded by paragraph 1(3)(a) of Schedule 6 to the Land Registration Act 2002 (“the 2002 Act”) from making an application for adverse possession in relation to the Strip. This application succeeded to a certain extent. The Tribunal directed by order dated 20 ^th December 2013 that the Sextons’ application should be treated as an application to close the Respondents’ title to the Strip, but not as an application to be registered themselves. Because Mrs Kember’s application was made both under the 2002 Act, and also under the transitional provisions, she was not affected by this. Her application to be registered with title to part of the Strip continues, coupled with an application to close the Respondents’ title.

 

4.       The Applicants do not claim to have been in adverse possession of the entirety of the Strip. However, they contend that they were in possession of a large part of the Strip at the time of the Respondents’ first registration, in April 2010, and accordingly the Respondents were not entitled to be registered with possessory title. They rely on section 9(5) of the 2002 Act which provides that the registrar may grant a possessory title to a person where the registrar is of the opinion that “ …the person is in actual possession of the land, or in receipt of the rents and profits of the land, by virtue of the estate …” It is their case that the Respondents were not in possession of the land at the material time, nor in receipt of the rents and profits, and accordingly they should not have been registered and the register should be altered in order to correct a mistake. No point has been taken by the Respondents that the Applicants do not have locus to close the title, it being settled law that anyone may make such an application: see Paton v Todd [2012] EWHC 1248 (Ch) at paragraph 51. In any event, the Applicants claim to have been in possession at the date of registration, at least of part of the Strip. For their part, the Respondents deny that the registration was made in error. As I understand their case, they contend (a) that they are in fact able to make out a paper title to the Strip and should therefore be registered with an absolute or qualified title and/or (b) they were in receipt of the rents and profits of the Strip by virtue of a wayleave agreement and thus entitled to a possessory title. As a final long-stop, they argue that even if their initial registration was a mistake, the register should not be altered in view of the exceptional circumstances present in this case within the meaning of paragraph 6(3) of Schedule 4 to the 2002 Act. I shall explain these arguments in more detail in due course. For present purposes, this provides a broad summary of the parties’ respective positions.

 

THE HEARING

5.       I heard this case over two days at Cambridge County Court, having visited the site in the presence of the parties or their representatives on the preceding day. The Applicants were represented by Mr Alisdair Wilson of Counsel, and the Respondents by Mr Andrew Gore, also of Counsel. Although I was able to hear Mr Gore’s closing submissions, there was no time to hear from Mr Wilson, and I directed that his submissions should be lodged in written form. I have also received further written submissions from Mr Gore in response to the Applicants’ Closing Submissions. On the Applicants’ side, I heard evidence from Mr Sexton, Mrs Kember, and Mrs Street, the owner of 45 West Drive. For the Respondents, evidence was given by Mrs Gill, her daughter Melanie King, her son-in-law Anthony Paul Langford, Jean Stevens and Carol Rawles. Witness statements of Richard and William Langford were also relied upon. All of this evidence related primarily to the issue of possession of the Strip. The Respondents have also applied for permission to rely on a second witness statement of Mrs Gill, one of the Respondents, served after the hearing was concluded. This additional evidence relates to a wayleave agreement, and I shall consider this application when I come to deal with the issue to which it relates.

 

THE BACKGROUND TO THE DISPUTE

 

6.       The background to the dispute is, broadly speaking, as follows. At some time in 2009, a dispute arose between the Gill family and the Applicants with regard to the Strip. Although the date when the Applicants first entered into possession of the Strip is a hotly contested factual issue, it is common ground that this occurred no later than 2009 and Mrs Gill accepts that she became aware of the Applicants’ possession of the Strip no later than 2009. According to her evidence, the Respondents consulted solicitors, who advised that they should obtain a registered title to the Strip before attempting to seek possession. Accordingly, in the summer of 2009 the Respondents’ solicitors began to take steps with a view to first registration. As I explain below, the application was eventually made in March 2010, and related to a much larger area of land than the Strip alone, including 42 West Drive itself which was an unregistered title. The application resulted in the registration of the Respondents as possessory title owners of the Strip, on 19 ^th April 2010. The Respondents took no immediate steps to obtain possession. This may be connected with the fact that the Respondents’ solicitors were trying to have the title upgraded from possessory to absolute, an attempt which was finally rejected by the Land Registry in July 2011. At all events, from September 2011 onwards the Respondents used a variety of methods to remove the Applicants – the Sextons in particular – from the Strip. Primarily these involved self-help, although in tandem with this direct action in March 2012 the Respondents commenced proceedings for injunctive relief against the Applicants. The Strip was eventually cleared of the Applicants’ structures and other items by April 2013. Regrettably, there were a number of confrontations on site, the police became involved, and the Anti-social behaviour unit of South Cambridgeshire District Council eventually advised all parties to desist from entering the land.

 

THE ISSUES TO BE DECIDED

 

7.       As matters have developed, there are two groups of inter-related issues in the case. First, should the Respondents’ title to the Strip be closed? Secondly, if the answer is yes, should either or both of the Applicants be registered with a title to any part of the Strip? In order to resolve the first issue, I must decide whether the Land Registry has correctly registered the Respondents with a possessory title to the Strip. In turn, and in view of the way that the Respondents put their case, this requires me to consider whether they are able to prove a title to the Strip. If they cannot make out a title, I must go on to consider whether they were either in possession of the Strip, or in receipt of the rents and profits thereof, at the date of registration. Finally, even if they are unable to prove a title to the Strip, and were neither in possession nor in receipt of the rents and profits, I must decide whether to alter the register under Schedule 4 of the 2002 Act by closing the title. It is only if I decide that the title should be closed that it is necessary to consider the second broad issue, namely whether either or both of the Applicants should be registered with a possessory title to part of the Strip. Having said that, in considering whether exceptional circumstances exist which justify refusing the alteration, the likelihood of a title being obtained by the Applicants may be relevant.

 

8.       By order dated 6 ^th December 2013 (corrected on 20 ^th December 2013) the Tribunal ordered that the Sextons’ application to be registered under paragraph 1 of Schedule 6 to the 2002 Act – i.e with a title based on adverse possession – should be treated as an application to close the Respondents’ title and “limited to the extent of the land claimed by Mr and Mrs Sexton ….”. The Tribunal’s reasons are given. It appears that the purpose of this limitation was to avoid giving the Sextons “ a wider platform for their application than the one they actually made at the start…” As I read this, the Tribunal accepted the Respondents’ argument that if the Sextons were only claiming a title to one defined part of the Strip, their “deemed” application to close the Respondents’ title should be limited to the same defined part. The possessory title includes a substantial area of land to the south of 42 West Drive and to the west of West Drive itself (“the Additional Land”) which is not affected by the applications. An application to be registered with title to the Strip necessarily carries with it, it appears to me, an application to close the Respondents’ title at least as regards the Strip – see the Reasons attached to the previous Tribunal Order dated 28 ^th October 2013. On this basis, Mrs Kember has also applied to close the title to the Strip, and there is no limitation on her application such as applies to the Sextons. In my judgment, it would make no sense to limit the Applicants’ applications to close the Respondents’ title to any particular physical area of the Strip. If the Tribunal is satisfied that title to the Strip should not have been granted to the Respondents, and subject to the requirements of Schedule 4 paragraph 6 of the 2002 Act, the correct outcome is the closure of the title as regards the entirety of the Strip. This would not of course affect the Additional Land lying to the south of 42 West Drive.

THE TITLE DOCUMENTS RELATING TO THE STRIP

9.       The Respondents’ claimed root of title to the Strip is an Indenture dated 13 ^th October 1923 and made between Robert Rayment Hobbs (1) and Henry Maltby (2) (“the 1923 Indenture”). By this deed, the vendor conveyed the following property to the purchaser: “ All Those pieces or parcels of land situate in the parish of Caldecote in the County of Cambridge having a frontage of one hundred and twenty feet or thereabouts to a certain road leading from Old North Road Station to Cambridge and a frontage of one hundred feet to a certain Estate Right of Way And Also All that piece or parcel of land situate at Caldecote aforesaid having a frontage of forty feet to the said Estate Right of Way and containing an area by estimation of one acre and twenty-eight poles little more or less and which said pieces or parcels of land are more particularly delineated and described in the plan drawn hereon and thereon edged with red and numbered 77, 78, 79, 80, 81, 82, 177, 178, 179, 180, 181 and two thirds part of Number 288…”. For the purposes of understanding these descriptions, the “ road leading from Old North Road Station to Cambridge” is Highfields Road, and “a certain Estate Right of Way” is West Drive. Plots 77 to 82 run from south to north on the west side of Highfields Road. Plots 181 to 177 run from south to north on the east side of West Drive. These plots therefore occupy the entire area between Highfields Road and West Drive at this point, with the higher numbered plots lying to the west of the lower numbers. Plot 288 is on the west side of West Drive – that is, on the opposite side of the road to the other plots. The Strip is included within the land comprised in this conveyance.

 

10.   There are two later conveyances noted on the 1923 Indenture by way of memorandum. The first is that dated 21 ^st June 1930 and made between Henry Maltby (1) and Ellen Amelia Brand (2), by which the following parcels were conveyed, namely: “a piece of land with the Bungalow erected thereon at Caldecote in the County of Cambridge and forming part of plots No. 179 and 180…”. This is the land and building now known as 45 West Drive, which lies to the rear of No. 95. The conveyance also included the grant of a right of way “ over the pathway six feet wide situate on the North East side of the property hereby conveyed to and from the road leading from the Old North Road Station to Cambridge” – i.e the Strip. The second memorandum refers to a conveyance dated 28 ^th June 1930 and made between Henry Maltby (1) and Thomas Bowlam and Eileen Bowlam and relates to plots 81, 82, 177 and 178. This parcel of land subsequently became No. 97 and, at the rear, 43 West Drive. A subsequent conveyance dated 25 ^th October 1941 better describes the property as being bounded on the south-west by the Strip. On 31 ^st July 1930 there was a conveyance from Henry Maltby (1) to Mr and Mrs Clarke (2) of plots 79, 80 and parts 179, 180. This is the land that subsequently became Jesmond, or No. 95. The remainder of plots 179 and 180 had already been included in the conveyance of 21 ^st June 1930.

 

11.   The key conveyance as regard the Respondents’ claim to a paper title is that dated 1 ^st April 1943 and made between Henry Maltby’s personal representatives (1) and Arthur Fishpool (2) (“the 1943 Conveyance”). It is recited that Henry Maltby died on 10 ^th April 1933, that his estate passed to his widow as Settled Land Act tenant for life, and that she had agreed to sell certain property to the purchaser. The land is described as follows: “FIRST ALL THAT piece of freehold land ………….Together with the outbuilding erected thereon as now in the occupation of the purchaser SECONDLY ALL THAT piece of freehold land in Caldecote aforesaid having a frontage of feet or thereabouts to the road leading from the Old North Road Station to Cambridge aforesaid and a frontage of feet or thereabouts to the said estate right of way or drove Together with all the right and interest (if any) remaining therein of the vendor in a strip of land 6 feet wide coloured green on the said map or plan extending from the said road to the said estate right of way TOGETHER with the building standing thereon as now in the occupation of Stannard which said two pieces of land are for the purpose of identification only more particularly delineated and described in the map or plan drawn hereon and therein coloured red….”. The land in question consists of (a) the part of plot 288 lying to the west of West Drive, (b) plots 77, 78 and 181 lying between Highfields Road and West Drive, and (c) the Strip, which is identified on the plan as running from Highfields Road to West Drive between Nos. 95 and 97. The Applicants draw attention to the tentative wording of the grant as regards the Strip – “ Together with all the right and interest (if any) remaining therein of the vendor in a strip of land 6 feet wide…….”. This form of words clearly indicates uncertainty both as to the nature of the vendor’s title to the Strip, and indeed whether it is still retained by him.

 

12.   There is a memorandum on the 1943 Conveyance of a subsequent conveyance, dated 15 ^th February 1947 and made between Arthur Fishpool (1) and Patrick Joseph Cleary (“the 1947 Conveyance”) whereby “the piece of land secondly within described was conveyed unto the said Patrick Joseph Cleary Reserving unto the said Arthur Fishpool a right of way ten feet wide over and across the North-West boundary of the property hereby conveyed”. Neither side has been able to produce a copy of the 1947 Conveyance. However, the Applicants argue that the 1947 Conveyance disposed of the Strip to Mr Cleary, on the grounds that “the piece of land secondly within described” – that is, the land secondly described in the 1943 Conveyance – includes the Strip. The Respondents, however, contend that despite the wording of the Memorandum, the Strip was retained by Mr Fishpool out of the sale. Mr Gore’s skeleton argument sets out ten separate grounds for this conclusion.

 

13.   The next link in the chain of title is an Assent dated 18 ^th March 1959 (“the Assent”) and made by Mildred Jane Fishpool, acting as the administratrix of the estate of Arthur Fishpool deceased, whereby she vested certain land and property in herself beneficially. The property was described as follows: “ ALL THAT piece of freehold land in Caldecote aforesaid having a frontage of 40 feet to a certain estate right of way or drove and on the North West side thereof and containing an area by estimation of 1 acre 0 roods 28 poles more or less together with the building erected thereon and now known as Bonair Highfields Caldecote aforesaid all which said property is now in the occupation of the Administratrix and which said piece of land was for the purpose of identification only more particularly delineated and described in the map or plan drawn on [the 1943 Conveyance]…”. This is the Respondents’ property now known as 42 West Drive. The property comprised in the Assent does not include the Strip expressly, although it contains a general grant of “all other (if any) estate or interest in property (whether or not mentioned in the schedule hereto) as to which the administratrix is entitled under the said intestacy….”.

 

14.   The next document of title is the Conveyance dated 31 ^st December 1959 and made between Mildred Fishpool (1) and the Respondents (2) (“the 1959 Conveyance”). This conveys “ ALL THAT piece of freehold land in Caldecote aforesaid having a frontage of 40 feet to a certain estate right of way or drove and on the North West side thereof and containing an area by estimation of 1 acre 0 roods 28 poles (more or less) ALL WHICH said property is for the purpose of identification only and not by way of limitation delineated on the plan annexed hereto ….. TOGETHER with the building erected on the said plot of land or on some part thereof and known as “Bonair” Highfields Caldecote aforesaid TOGETHER ALSO with all the rights and interest of the owner for the time being of the said property hereinbefore described in a strip of land six feet wide extending from the said Estate right of way or Drove to the main road leading from Old North Road Station to Cambridge which said strip of land is for the purpose of identification only delineated on the said plan and thereon coloured green TO HOLD the same UNTO the Purchasers in fee simple”. This purports to convey the Strip to the Respondents.

 

15.   The same parties entered into a Confirmatory Conveyance dated 20 ^th July 1965 (“the 1965 Conveyance”), expressed to be supplemental to the 1959 Conveyance. The purpose was to include a right of way that had been granted by the 1943 Conveyance over 45 West Drive in favour of Arthur Fishpool, and which had been omitted from the 1959 Conveyance by mistake. The second recital to the 1965 Conveyance sets out the parcels clause from the 1943 Conveyance including the following: “together with all the right and interest (if any) remaining therein of the said Martha Annie Maltby in a strip of land coloured green on the plan attached to the said Conveyance…”. The third recital to the 1965 Conveyance confirms that “all that piece of land described above in the conveyance dated [1 ^st April 1943] was conveyed to the said Patrick Joseph Cleary…..”. Despite the purported conveyance of the Strip to the Respondents in the 1959 Conveyance, this confirms that it had already been the subject of a conveyance to Patrick Joseph Cleary.

 

THE LAND REGISTRY’S VIEW – POSSESSORY TITLE ONLY

 

16.   Bearing in mind the documents of title offered by the Respondents, can it be said that they were entitled to be registered with a title absolute? The Respondents originally applied to the Land Registry in Form FR1 on 11 ^th February 2010 for first registration of land (including the Strip) to which they asserted a paper title. The Land Registry, however, declined to register them with Title Absolute, for the reasons spelled out in correspondence. On 29 ^th June 2011 the Peterborough Office of the Land Registry gave this explanation . “Unfortunately, I cannot consider upgrading the class of title currently given to the strip of land. All the conveyances involved convey only such estate, right and interest in the strip of land as the Vendors had. Such Conveyances are not a satisfactory basis for the grant of an absolute freehold title, because they fail to specify the precise nature of the estate and interest purported to be conveyed. By their very nature, they are couched in terms which cast doubt on the Vendor’s ability to convey the fee simple estate.” This response did not satisfy the Respondents, and their solicitor asked the Land Registry to reconsider. This resulted in a further letter from one of the Assistant Land Registrars dated 20 ^th July 2011, in the following terms: “ Whilst I note your comments ……regarding the class of title awarded to the strip of land to which you refer, I cannot accept your arguments. I note that in the years between the conveyance of 13 October 1923 and that of 1 April 1943, there appears to have been at least two sales-off of plots crossed by this strip. It is not clear now how they may have affected the ownership of the strip, and perhaps it was not clear to the parties to the 1943 conveyance, hence their apparent uncertainty as to the vendor’s ownership. I doubt that we can claim, over 60 years later, greater certainty as to the title to the strip than they did then and I am not convinced that Mrs Fishpool and your clients could retrospectively impose their interpretation of the 1943 conveyance in 1965 (if indeed they were trying to do so – the words “in fee simple” in clause 2 of the recitals can just as easily be interpreted as applying only to the land coloured red, given the rather clumsy drafting…”

 

17.   The considered view of the Land Registry is that the title offered by the Respondents does not fall within section 9(2) of the 2002 Act, which provides that: “A person may be registered with absolute title if the registrar is of the opinion that the person’s title to the estate is such as a willing buyer could properly be advised by a competent professional adviser to accept.” Section 9(3) is in these terms : “ (3) In applying subsection (2), the registrar may disregard the fact that a person’s title appears to him to be open to objection if he is of the opinion that the defect will not cause the holding under the title to be disturbed .” It is suggested – see Chapter 9-011 of Ruoff & Roper’s Registered Conveyancing – that this permits the registrar to register a “ good holding title” rather than a “ good marketable title”. Even allowing for registration of this lesser quality of title, however, the Land Registry has refused to confer an absolute title.

 

CONCLUSIONS REGARDING THE PAPER TITLE

18.   It seems to me that the Land Registry’s view is plainly correct, for at least the following reasons:

(a)     The 1943 Conveyance includes the formula “ Together with all the right and interest (if any) remaining therein of the vendor in [the Strip]…”. This demonstrates the vendor’s own uncertainty both as to whether he retains title to the Strip, and as to the quality of that title even if he does retain it. These are as tentative as words of grant can be.

(b)    The 1947 Conveyance conveyed the Strip to Mr Cleary, rather than retaining it within the title to 42 West Drive. The Strip is included within the parcel of land secondly described in the 1943 Conveyance. Mr Gore submits that the Strip should have been included as a third parcel, and its inclusion as part of the second parcel was a mistake. It is impossible to construe the document in this way. There is no doubt that the Strip is within the second parcel of land. The Memorandum records that “ the piece of land secondly within described was conveyed unto the said Patrick Joseph Cleary”, which includes the Strip.

(c)     The fact that the Strip was conveyed to Mr Cleary is confirmed by the recitals to the 1965 Conveyance. Recital (2) sets out in full the second parcel of land described in the 1943 Conveyance, expressly including the Strip. Recital (3) recites that “ all that the piece of land described above” was conveyed to Mr Cleary. Section 45(6) of the Law of Property Act 1925 provides that such a recital shall be sufficient evidence of the truth of its contents unless proved otherwise. Manifestly, therefore, it represents a defect in the title offered.

(d)    The 1959 Assent does not expressly include the Strip. Although it contains a general assent of all other property, the absence of any reference to the Strip suggests an understanding that it no longer formed part of the estate.

(e)     The 1959 Conveyance conveys “ all the rights and interest of the owner for the time being of the said property hereinbefore described in [the Strip]”. Once again, the quality of the vendor’s title is called into question by the vendor herself. Although the habendum to the 1959 Conveyance refers to a conveyance “ in fee simple”, on a true construction of the parcels clause as a whole these words cannot reasonably be read as applying to the Strip itself.

 

19.   In my judgment, the title offered by the Respondents falls far short of a title that “…. is such as a willing buyer could properly be advised by a competent professional adviser to accept.” No purchaser would be prepared to accept the title offered, which does not even purport to convey a fee simple absolute. By 1943 Mr Maltby was uncertain if he even retained the Strip – hence the terms of the 1943 Conveyance and the use of the words “ if any”. The vendors under the 1943 and 1959 Conveyances were therefore not prepared to convey an absolute title – perhaps mindful of their covenants for title – restricting the grant to such “ right and interest” in the Strip as they might own. Although the 1959 Conveyance purports to grant “ all the rights and interest” of Mrs Fishpool in the Strip, the confirmatory conveyance in 1965 confirms that the Strip had already been conveyed away to Mr Cleary. Mr Gore in his extensive written and oral arguments has set out a detailed analysis of the title documents, with a view to showing (a) that the Strip was retained by Mr Maltby, (b) that it passed to Mr Fishpool in 1943 and (c) was retained by Mr Fishpool out of the 1947 Conveyance. I am not persuaded by his conclusions, and in any event these arguments are misconceived. A purchaser cannot be obliged to accept a title which is so uncertain, and no competent professional adviser would advise him to do so. A title which requires the assistance of Mr Gore’s complex and sophisticated arguments to be regarded as complete, is neither a good marketable title nor a good holding title. If such a title were to be accepted, at the very least defective title indemnity insurance would be required.

 

A QUALIFIED TITLE?

20.   In any event, the Land Registry has made its decision, which would have to be challenged by way of judicial review. Mr Gore submits that it was open to the Land Registry to grant a qualified title to the Respondents. I am not persuaded that the Land Registry could have registered the Respondents with a qualified title. Section 9(4) of the 2002 Act provides that “A person may be registered with qualified title if the registrar is of the opinion that the person’s title to the estate has been established only for a limited period or subject to certain reservations which cannot be disregarded under subsection (3).” Neither of the situations envisaged applies in this case. The first would seem to apply where less than a fifteen year root of title is offered. There are no material reservations falling within the second category. Even a qualified title is a good title, albeit one that is too recent, or subject to particular reservations. The Respondents’ title is simply not good enough.

 

REGISTRATION WITH POSSESSORY TITLE

21.   Accordingly, the Land Registry was correct in refusing to register the Respondents with Title Absolute. It then falls to be considered whether it was right to register the Respondents with possessory title to the Strip, or whether, as the Applicants contend, their registration was a mistake. The Respondents’ application for voluntary first registration was made in Form FR1 dated 9 ^th February 2010. Section 3 identifies the extent of the land to be registered as being identified on the plan attached to the 1959 Conveyance. This includes the Strip, shown coloured green on the plan. Panel 12 of the FR1 requires the applicant to give information regarding possession of the subject land. Section 12 of the FR1 contains a certificate to be completed by the applicant, giving details of “rights, interests and claims affecting the estate….. known to the applicant…”. The applicant must place an “x” in the appropriate box. With regard to panel 12 of an FR1, the Land Registry Practice Guide 1 states as follows: "If squatters occupy any part of the property details must be given here, unless squatters interests have been disclosed on form DI under r.28(1) LRR 2003. We will not complete registration until the claims of squatters have been investigated.” The box which was ticked by or on behalf of the Respondents was in this form: “ The applicant knows of no other such rights, interests and claims. Only the applicant is in actual possession of the property, or in receipt of the rents and profits from the property.” The other available box, not ticked by the Respondents, reads as follows: “ The applicant knows only of the following additional such rights, interests and claims, including those of any person (other than the applicant) in actual possession of the property…”.

 

22.   The Land Registry raised various requisitions on the FR1, all of which appear to relate to the Additional Land which was not included within the 1959 Conveyance. Eventually, the Respondents made a Statutory Declaration to the effect that that they had been in undisturbed possession of the Additional Land since 1981. On 19 ^th April 2010 the Land Registry gave effect to the Respondents’ application by registering two parcels of land – 42 West Drive and the land adjoining it to the west – with a possessory title under Title number CB353314. This resulted in correspondence from the Respondents’ solicitors, challenging the registration. The letter is dated 28 ^th April 2010, and the material parts read as follows: “ With reference to the Conveyance dated the 31 ^st December 1959, we believe that the piece of land shown coloured pink should be registered with absolute title and the rest with possessory title. The plan does not show the strip of land coloured green attached to the 1959 Conveyance and we believe that this strip of land should be included in the possessory title. Please investigate the apparent error in the proprietorship register and the plan and let us have a reply as soon as possible. We assume that the possessory title will need to be allocated a separate title number.” The land coloured pink was 42 west Drive itself. I infer from this letter that the Strip had been omitted from CB353314 when first registered. On 13 ^th May 2010 a new title was created, CB353843, whereby 42 West Drive was registered in the Respondents’ names with title absolute. At the same time it appears that the Strip was included within CB353314 – see the official copy of the filed plan dated 13 ^th May 2010. As I have already stated, in July 2011 the Respondents attempted to have title to the Strip upgraded to an absolute title, without success. The Respondents’ FR1 therefore resulted in the creation of two titles: title absolute CB353843 (42 West Drive) and title possessory CB353314 (the Additional Land and the Strip).

 

THE MEANING OF POSSESSORY TITLE

23.   Section 9(5) of the 2002 Act provides as follows:

(5)A person may be registered with possessory title if the registrar is of the opinion—

(a) that the person is in actual possession of the land, or in receipt of the rents and profits of the land, by virtue of the estate, and

(b) that there is no other class of title with which he may be registered.

At this point I should mention the Respondents’ submission to the effect that a person may be registered with a possessory title even if he is not in actual possession or in receipt of the rents and profits. Mr Gore argues (see paragraphs 9-11 of his Response to the Applicants’ Closing Submissions) that there is nothing in section 9(5) of the 2002 Act to suggest that possession, or the receipt of rents and profits are “ the only circumstances where the Registrar may grant possessory title. It does not prevent the Registrar granting a possessory title where the evidence is based on documentary evidence which the Registrar considers less than perfect, as the correspondence from the Registrar makes plain was the case here.” There are only three classes of registered title - absolute, qualified and possessory. As a matter of real property law, a person without a paper title may nevertheless be regarded as having a form of title based on possession, sufficient to maintain an action of trespass. An applicant with a paper title may either be registered with absolute or qualified title in the circumstances explained in the 2002 Act. A person may be registered with absolute title even where it is “ less than perfect” in Mr Gore’s phrase – that is the effect of Section 9(3), whereby “ the registrar may disregard the fact that a person’s title appears to him to be open to objection if he is of the opinion that the defect will not cause the holding under the title to be disturbed”. In any event, a title does not have to be perfect, merely “…. such as a willing buyer could properly be advised by a competent professional adviser to accept”. Mr Gore’s reading of section 9(5) is untenable. He argues that since it is provided that the Registrar “ may ” award a possessory title in the specified circumstances (i.e possession or receipt of rent), he may also do so in different circumstances. This argument, if valid, could apply equally to sections 9(2) and 9(4) of the 2002 Act, so that the Registrar might decide to award an absolute title even if he was not satisfied that the applicant had a marketable title. The word “ may ” in sub-sections (2), (4) and (5) cannot possibly be read as giving the Registrar carte blanche to award any title that he chooses, whether or not the various statutory requirements are satisfied. The word simply indicates that the Registrar always has an ultimate discretion whether to award a title, even where the applicant has established the necessary requirements.

 

24.   Accordingly, when the Land Registry registered the Respondents with possessory title to the Strip, it must have been satisfied that they were either in actual possession thereof, or in receipt of the rents and profits. I have found that the Respondents were neither in possession of the Strip, nor in receipt of the rents and profits thereof, both when they applied in Form FR1 for first registration (in March 2010) and on 19 ^th April 2010 when they were registered with possessory title. Since there was no evidence submitted to the Land Registry relating to the rents and profits of the land, I conclude that it considered the Respondents to be in “ actual possession” of the Strip. In the absence of any other evidence, the Land Registry can only have based this view on the certificate at Section 12 of the FR1, namely: “ Only the applicant is in actual possession of the property, or in receipt of the rents and profits from the property”. If the Land Registry was correct in considering that the Respondents were in actual possession of the Strip, the registration was justified. If, however, the Respondents were not in actual possession at the relevant time, the registration would have been based on a mistake. In the course of this hearing I have heard a great deal about the possession and use of the Strip for the period from 1959 onwards, up to and including the date of the Respondents’ application to the Land Registry, indeed up to the present day. I am therefore in a position to make findings of fact as to the possession of the Strip at various material dates, and such findings are integral to the resolution of the referred applications. Before considering the evidence, however, I shall refer to other material which may cast light on this issue.

 

THE RESPONDENTS’ CASE ON POSSESSION

25.   First, I refer to the Respondents’ Statement of Case served on 9 ^th October 2013. Paragraph 4 states that: “….unfettered access along the land the subject of both the Kember Application and the Sexton application was possible until one or other of the Applicants or some third party placed a gate across the land in question or otherwise obstructed it at some time in or around 2009.” Paragraph 12 contains this passage: “ The Respondents and their lawful visitors and invitees had full unfettered use of the disputed land until access to it was prevented by the Applicant and/or Mr and Mrs Sexton some time in or around 2009.” On 27 ^th March 2012 the Respondents issued proceedings against the Applicants seeking injunctive relief in relation to the Strip. In particular, the Respondents sought mandatory injunctions, requiring the Applicants “ to remove the obstructions which are encroaching on [the Strip]…....”, including a fence erected by the Sextons and a gate erected by Mrs Kember. In the Particulars set out in the Particulars of Claim, it was alleged that the Sextons “committed a trespass on [the Strip] by using the land as a place to keep their chicken run, chicken waste and rubbish bins since at least September 2009. [They] have since removed the chicken run but have erected a fence across the [Strip] preventing the Claimants from accessing their property at 42 West Drive.” It was further alleged that Mrs Kember “has unlawfully and without consent used [the Strip] as an extension to her garden and as a place to keep her waste bins since at least September 2009. [Mrs Kember] has unlawfully and without consent erected a slatted fence or gate across [the Strip] further [preventing the Claimants from accessing their property at 42 West Drive.” The same allegations were made by the Respondents’ solicitors in their detailed letter before action – preceding the County Court claim – namely that the Applicants had excluded the Respondents from the Strip since 2009.

 

26.   It will be appreciated, therefore, that the Respondents have never contended that they were in possession of the Strip at the date on which they applied for first registration – in March or April 2010. This curious inconsistency may be explained by a confusion which persisted on the Respondents’ side until very recently, namely a belief that their registered title to the Strip is in some way based on a paper title. This point is made expressly by Mrs Gill at paragraph 10 of her first witness statement. The confusion may arise because three different parcels of land were the subject of their original FR1, and on any footing the title to 42 West Drive itself was a good paper title. Whatever the explanation, however, it is clear from the Respondents’ own case that their certificate at Section 12 of the FR1 – namely that “ Only the applicant is in actual possession of the property….” was untrue insofar as it related to the Strip. That conclusion may be sufficient in itself to resolve these references, at least to the extent that the Applicants’ applications seek to close the Respondents’ title. However, since there are also the Applicants’ adverse possession claims to resolve, I must consider in more detail the evidence relating to possession of the Strip. In dealing with possession, I shall also consider the wayleave agreement adduced by the Respondents, upon which they rely as demonstrating “receipt of the rents and profits of the land” within the meaning of section 9(5) of the 2002 Act.

 

THE APPLICANTS’ EVIDENCE

MR SEXTON

27.   Mr Sexton verified his Statement of Truth dated 9 ^th September 2013, and also made a detailed witness statement dated 17 ^th March 2014. The key points of his evidence may be summarised as follows. When he and his wife first bought No. 95 there was a gate leading from the Strip into the back garden, at the back of his house, and this has been in constant use ever since. He was also aware that the sewage pipe serving his property runs beneath the Strip from the rear of the house to Highfields Road. He identifies as “the red land” the area of the Strip alongside the flank wall of the house, as far as the public footpath, and says that he used to store items such as ladders on this land for a few days at a time. Once the Council provided wheelie bins, as opposed to static dustbins, he used to store these on the red land more or less permanently. The wheelie bins arrived in 2003, so he believed. For the first three years or so of his ownership he would regularly cut the grass on that part of the Strip which lay between his house and Mrs Kember’s. Occasionally he would cut the grass as far as West Drive. However, if he did this he felt he was intruding on Mrs Kember, whose garden was open to the Strip from the point he marks as “E” on his plan “ACS1”. The Strip was open to Mrs Kember’s rear garden beyond the second fence. There was a picket gate at the West Drive end of the Strip which had the number “45” on it and the gatepost. The gate would be closed but unlocked. Mr and Mrs Steel replaced the gate in 2013.

 

28.   On 2 ^nd May 1997 (the day of the General Election) his wife told him that someone had been clearing the Strip. She had felt threatened and had called the police. Mr Sexton was told by Mrs Stevens, at 45 West Drive, that the man in question was Mr Gill. Mr Sexton went to the house and spoke to Mr Gill about the way her had spoken to his wife, and suggested that he should come and clear up the cuttings and other mess that he had placed in the rear garden of No. 95. Mr Gill did come to clear it up. In November 1998 the Sextons sold a parcel of land at the end of their garden to a Mr Poppleton, who had bought 45 West Drive and planned to redevelop it. Mr Poppleton told Mr Sexton that he was unable to find out who owned the Strip, and suggested that he should fence it off and use it as part of his garden. Very soon after that conversation, and having discussed it with Mrs Kember, he placed a fence panel across the Strip just behind (i.e to the west of) the gate into his garden. He erected a chicken house (at B on plan ACS1) to the west of that, and put up a wire fence across the Strip to the west of the chicken house (at point C). As a result of these activities, which he recalled took place in 1999, it was no longer possible for anyone to walk along the Strip from end to end. Both he and Mrs Kember could still access their gardens from the Strip at a point east of the fence panel.

 

29.   Approximately 6 months after installing the chicken house, Mr Sexton decided to keep his chickens further from the house, due to the smell that they created. He therefore erected a second chicken house further west along the Strip (at point D). He then placed a second fence panel across the Strip (at point E). This was at the end of Mrs Kember’s garden fence, and her garden was open to the Strip beyond this point. Mr Sexton left the first chicken house and fence panel in place, using the former for storage. There was a chicken run between points D and E – between the second chicken house and the second fence panel. He had therefore enclosed the Strip between the two fence panels, B and E on his plan. Some time later – probably in 2004, according to Mrs Kember’s evidence – she erected a gate at the entrance to the Strip (“the Gate”) and gave him a key. Apart from this, the Sextons have never asked for nor have they been given permission to enter and possess the Strip, whether by the Respondents or anyone else.

 

30.   In the summer of 2008 Mr Sexton recalled an incident one Sunday morning. Mrs Kember had phoned him and asked him to speak to Mr Gill, who was at her house demanding a key for the Gate. She had refused, and Mr Sexton also refused. Mr Gill then left. There was another scene on the day of Mrs Sexton’s father’s funeral, on 20 ^th August 2009. There was loud knocking on the Sextons’ front door. Mr Sexton opened it to find both Mr and Mrs Gill. Mr Gill was aggressive and once again demanded a key for the Gate. Mrs Gill, according to Mr Sexton, was trying to defuse the situation. Mrs Sexton asked them both to leave and they did. Between September 2011 and March 2013 there were a series of incidents whereby Mr Gill and members of his family – including his son-in-law and daughter Melanie, both of whom gave evidence before me – removed or destroyed various items belonging to the Sextons, including the chicken sheds and fence panels. On various occasions the Gate was removed, but always re-instated by Mr Sexton – indeed, the Gate remains in position to this day. Eventually, by the end of March 2013, they cleared the Strip. By this time the police and the Anti-social behaviour unit of South Cambridgeshire District Council became involved, and all parties were advised to stay away from the Strip as far as possible. In summary, therefore, it is Mr Sexton’s evidence that he was in possession of that part of the Strip that lies between the two fence panels (B and E) between 1999 and March 2013 when the Strip was cleared. It is also his evidence that the section of the Strip between Highfield Road and the first fence panel (B) was gated by Mrs Kember in 2004 and only he and Mrs Kember had a key, and therefore access to that area, for the same period.

 

MRS KEMBER

31.   Mrs Kember made a witness statement on 17 ^th February 2014, which she verified on oath. Her husband bought No. 97 in 1977, by a Conveyance dated 30 ^th September of that year. She became the sole owner upon his death in 2004. Like Mr Sexton, she said that access to her rear garden has always been obtained by a gate (marked A on her plan) giving on to the Strip. She believed that the house had previously been used as a doctor’s surgery and that this gate formed the entrance to the rear. She said that she always kept her dustbins on that part of the Strip that immediately adjoins her house – which she has marked with hatching on her plan. She recalls that various people mowed the Strip: her husband, Mr Sexton, Mr Stevens at 45 West Drive, and very occasionally Mr Gill, although she did not believe that he had done so after Mr Sexton arrived at No. 95. Sometimes she mowed it herself, at the same time as she mowed her garden. After Mr Sexton put up the fence panels (at points C and D on her plan) the Strip ceased to be used as an access to West Drive. She said that she did not have a good memory for dates but thought this was some time before her husband died. From that time onwards, she was the only person who tended and maintained the part of the Strip that she marked with cross-hatching on her plan – she said that she treated it as part of her garden. The section of the Strip from Mr Sexton’s second fence panel (point D) towards West Drive became overgrown and was not used as an access. At some time after her husband died she erected the Gate for security reasons. It was lockable and she gave the Sextons a key. At some point – she thought about 2 years after she put the Gate up, Mr Gill came to her house and asked for a key to the Gate. He threatened to take the Gate down if he did not get a key but she refused. The first time she was aware that Mr Gill was actually claiming to own the Strip was when she received a solicitor’s letter in September 2010. She recalled a number of incidents involving Mr Gill, his family and others, whereby they tried to remove items from the Strip and to clear it. Eventually they did clear it.

 

MRS STREET

32.   Mrs Street currently lives at 45 West Drive, which lies to the rear and to the west of No. 95. Originally, her mother’s partner, Mr James Jeffreys, moved into the house in 1999. She inherited the house in 2002, and she moved in together with her family in 2008. She first saw the house in the summer of 1999. At that time, there was a flimsy wooden gate across the Strip at the West Drive end, with the number “45” both on the gate and the gate post. They entered the property through the gate, and then from the Strip into the front and back gardens, which were then open to the Strip and unfenced. The Strip itself was blocked by bushes, weeds and brambles from the end of the back garden 45 West Drive. She saw that chicken huts had been erected lower down the Strip (towards Highfields Road). She was aware of various confrontations with Mr Gill. For example, when Mr Jeffreys bought the house, he insisted that he should erect a fence between the Strip and his garden, which he did. More recently, there was an altercation with Mr Gill, shortly before the Streets were informed that the Gills had obtained possessory title to the Strip. Generally she confirmed the evidence of Mr Sexton and Mrs Kember as to their use of the Strip. Although 45 West Drive has a right of way over the Strip – conferred by the Conveyance dated 21 ^st June 1930 – she has never known it to be used.

 

THE RESPONDENTS’ EVIDENCE

MRS GILL

33.   Her evidence as to user and possession of the Strip was set out in her first witness statement dated 28 ^th January 2014, which she verified on oath. In paragraph 14 of her witness statement she said this: “ Up until 2009 it was always possible to walk from one end of the Strip to the other, although when the vegetation had been allowed to get too high as it often did, particularly in the summer months, this could be difficult. Before 2009 there was never any suggestion of any part of the Strip being incorporated into the gardens of either 95 or 97 Highfields Road. On the contrary, at various times there were sections of fencing along both sides of the Strip although these were not always well maintained. Equally there was never any structure or fence blocking the Strip before 2009. It was always possible to travel its whole length, provided the vegetation was not too high and overgrown”. She states that she and her husband gave a former owner of No. 95 permission to use the Strip to access his back garden, but no such permission was given to Mrs Kember. She says that after the obstructions were placed on the Strip “in 2009”, she consulted her solicitors, who advised her that “ dealing to the trespass to the Strip would be more straightforward if the land was registered at the Land Registry. I therefore instructed them to carry out a voluntary first registration of Bonair, the adjoining land and the Strip. I did not want to raise the issues of trespass formally with Mrs Kember and Mr and Mrs Sexton until this had been done…….. Having completed the registration of Bonair and the Strip Jeffery Mills wrote to the applicants in July 2009 requiring the obstructions to be removed. Despite those letters they were not removed. Jeffrey Mills wrote to them again in September 2010 re-stating the requirement to remove the obstructions but again nothing was done.”

 

OTHER WITNESSES

34.   Melanie King (the Respondents’ daughter) and Anthony Langford (their son-in-law) stated that they had continued to use the Strip as an access between Highfields Road and West Drive after 1999 and did not notice any obstructions until 2009. Mr Langford claimed to have carried out maintenance of the Strip. He accepted that he had attempted to clear the Strip after 2011. Carol Lee Rawles was not able to give any evidence as to the use of the Strip after July 1998, but said that she had regularly used it prior to that time as an access to West Drive. Jean Margaret Stevens was not able to give any evidence as to the use of the Strip after 1998, but also said that she had regularly used it prior to that time as an access to West Drive. The Respondents also relied on witness statements from William Neil Langford. And Richard Langford. They did not attend to give evidence, but I admitted their statements in evidence. William Langford says that between 1998 and 2000 he attended Comberton Village College and regularly visited his grandparents by way of the Strip – the shortest route from Hardwick via Hardwick Wood. He also said that between March and July 2003 he worked for a local builder and lived with his grandparents. He says that he used the Strip for access during this period. Richard Langford produced a number of Google satellite photographs.

 

DISCLOSURE OF THE WAYLEAVE AGREEMENT

35.   The final piece of evidence which may bear on the issue of possessory title – in the sense of the Respondents being in receipt of the rents and profits of the Strip at the relevant time – is a Wayleave Agreement dated 1 ^st August 1988 (“the 1988 Wayleave”). This document was not referred at the time of the application for first registration. However, it was referred to in the Respondents’ Statement of Case, and a copy consisting of one page, and a plan, was attached. In due course the Tribunal made an order for standard disclosure by list. No list was served by the Respondents and the Applicants applied for an “unless” order. This was resisted by the Respondents, on the grounds that they had complied with the order for disclosure by serving the Schedule of documents and providing the copy documents attached to their Statement of Case, and stating at paragraphs 7 of the letter "The Applicants have therefore been in possession of the Respondents' List of Documents and of copies of the documents in that List since October 2013." The Tribunal refused the “unless” order, on the basis that the Respondents had indeed disclosed all relevant documents and copies thereof. Subsequently, witness statements were exchanged. In paragraph 23 of his witness statement, Mr Sexton specifically referred to the copy of the Wayleave as disclosed by the Respondents stating "... the Respondents have disclosed the first page of a "Wayleave Consent" which has a handwritten grid reference in the top right had corner and they have also disclosed a plan on which someone has handwritten "Copy of Eastern Electricity Plan for proposed installation". I have not seen the originals of either of these documents and make it clear that I require the Respondents to prove the provenance of these documents and their relevance to these proceedings".

 

PRODUCTION AT THE HEARING

36.   On the first day of the hearing before me, those representing the Respondents produced the original of the 1988 Wayleave. This contained a second page, on the reverse of the first, together with a plan stapled to it. The Applicants strenuously objected to the admission of the document, on the grounds that only an incomplete copy had been produced, and in view of the doubts expressed as to its provenance, it would be unjust to allow it in. Despite this challenge, I indicated that I would allow the 1988 Wayleave to be admitted into evidence, on the basis that someone would formally produce the document. Mr Gore, for the Respondents, informed me that Mrs Gill would do so since Mr Gill, the signatory to the document, was not being called to give evidence due to ill-health. The purpose of having the full document produced by Mrs Gill was to allow the Tribunal to explore the provenance of the document as challenged by Mr Sexton. For whatever reason, when Mrs Gill came to give her evidence on the following day, the 1988 Wayleave was not put to her, and she was not asked to explain it.

 

RESPONDENTS’ APPLICATION FOR FURTHER EVIDENCE

37.   The hearing concluded on 15 ^th May 2014, save only for delivery of the Applicants’ Closing Submissions, which I directed to be lodged in written form by 22 ^nd May 2014. On 20 ^th May 2014 the Respondents sought leave to adduce further evidence in the form of a second witness statement by Mrs Gill, producing (a) the 1988 Wayleave, (b) a further Wayleave dated 27 ^th March 1991 (“the 1991 Wayleave”) and (c) a number of other documents, including payment schedules, said to relate to these wayleaves. The further witness statement also contains Mrs Gill’s comments on those documents. Coupled with the application for additional evidence was an Addendum to Mr Gore’s Skeleton Argument seeking to rely on these documents as demonstrating that the Respondents are in receipt of the rents and profits of the Strip.

 

38.   The Applicants oppose the admission of the additional evidence for the reasons set out in Counsel’s Closing Submissions, namely:

“(1) The Respondents closed their case on Thursday 15/5/14. Under the normal principals governing trials and tribunals they should not be allowed to call further evidence.

(2) The extremely late service of the 2 ^nd witness statement of Mrs G and accompanying disclosure is in flagrant breach of the directions of the Tribunal. Directions are given to ensure fairness between the parties and that the matter can be justly dealt with.

(3) This application has occurred despite:

(a) an application by As made in January 2014 for full disclosure, which was opposed by Rs upon the basis that they had disclosed all the requisite documents; and

(b) specific reference to the Wayleave Document in Mr S's witness statement exchanged in February 2014.

(4) Rs have had every opportunity to provide this evidence at an appropriate time.

(5) Rs have at all times been represented by solicitors.

(6) In their application, and in the witness statement of Mrs G, Rs provide no explanation at all as to why their proposed evidence and disclosure is so late. They cannot pray in aid the amendment of A's SoC as it is clear that they sought to rely upon the Wayleave Document from the outset as it was annexed to their own SoC.

(7) The time for As to give proper consideration, and if necessary, investigate the new evidence and its potential legal impact has been substantially and unfairly curtailed.

(8) As did not had the opportunity of cross-examining Mrs G on the new evidence

(9) To extend and re-open the hearing to allow proper investigation and cross examination by As would not only lead to extra delay and expense, it would be disproportionate and oppressive to As, who have a reasonable expectation that once they have closed their case Rs will not be able to call any further evidence, further prolong this matter and engender further expense.

(10) The principles of fairness and justice in proceedings set out in the Mitchell v News Group Newspapers [2013] EWCA Civ 1357 have been held to be relevant to the exercise of the Tribunals discretion and enforcements of directions under the provisions of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 – see Bailey v Lockitt ALT/W/SR/222 (attached authority (3)) and in particular paragraphs [4]-[9]. In the light of that it is worth noting

(a) Rs non-compliance with the direction concerning the disclosure of documents and exchange of witness statement cannot be classified as trivial or insignificant.

(b) There is no good reason why this evidence was not given at an appropriate time.

(c) Considerations regarding the exercise of discretion are not only limited to issues of prejudice to As.

(11) Directions concerning the proper procedure before the Tribunal should be complied with. There must be finality as to when evidence, including further evidence, can be adduced. This is not only fair to the parties in question but also for all those who make application to the Tribunal. Delays caused by a failure to abide by directions affect, not only the parties in question but also all those whose matters are to be heard by the Tribunal.”

 

39.   Mr Gore, in his Response to the Applicants’ Closing Submissions, rejects these criticisms. His overarching submission is that the Respondents could not be expected to produce evidence of their receipt of rents and profits because this did not become an issue until shortly before the trial. He submits that the Applicants never formally claimed that the registration of the Respondents with a possessory title was a mistake, because they were not in possession at the relevant time. This pleading was added by the late amendments. I do not accept this argument. Necessarily, a claim to remove the Strip from the Respondents’ title, and for the Applicants to be registered with title by virtue of their adverse possession, calls into question the validity of the original registration. It was always clear that the Applicants were seeking the closure of the Respondents’ title as regards the Strip. In those circumstances, the Respondents’ ability to bring themselves within the terms of section 9(5) of the 2002 Act was or should have been central to their case. In any event, they cannot argue that they did not appreciate the relevance of the wayleaves, since they referred to the 1988 Wayleave in their Statement of Case and provided a partial copy. Even if, as Mr Gore argues, the wayleave was being relied on to establish that the Respondents believed that they were the owners of the Strip, the documents were relevant and ought to have been fully disclosed and explained, particularly in view of the express challenge to its “ provenance”.

 

40.   With the exception of the Applicants’ closing written submissions, the hearing before me had concluded. On any footing it would be exceptional to allow a party to adduce fresh evidence after a hearing had been completed, at least without some very good reason to explain why that evidence had not been produced at the proper time. In the present case the issue of the 1988 Wayleave, its provenance and its authenticity had been flagged up expressly by Mr Sexton in his witness statement, but the Respondents did not provide an explanation. The same reservations were raised by the Applicants’ Counsel at the outset of the hearing, but Mrs Gill did not produce the document and deal with the reservations that had been expressed. In all the circumstances, I consider that it would be unjust and prejudicial to allow Mrs Gill’s further witness statement, together with the additional documents, to be admitted into evidence. Her evidence (with the exception of the 1988 Wayleave) could only be admitted if the Applicants were given an opportunity of cross-examining her on the documents, and it would be disproportionate for a further hearing to be held to resolve that issue. I may add that one of the letters exhibited to Mrs Gill’s second witness statement is a letter dated 30 September 2013 from UK Power Networks to Mrs Gill herself, enclosing “ a copy of the payment schedule and relevant consents”. This indicates that the Respondents were in possession of all these documents prior to the service of their Statement of Case, but as previously stated they were not referred to or disclosed at that time.

 

THE 1988 WAYLEAVE

41.   I am prepared to allow the 1988 Wayleave itself into evidence, however, despite the failure to provide a full copy prior to the hearing, or to ask Mrs Gill to produce it. The 1988 Wayleave, as disclosed by the Respondents at the hearing, consists of a page printed on both sides, with a plan stapled to it, which is dated 1 ^st August 1988 and signed by Mr Gill. It bears the reference “ 11/719764”. By it, Mr Gill consents to the execution by Eastern Electricity Board of “the works described in the First Schedule hereto”, and to maintain the same, in consideration of “ Yearly sums by way of rent…”. The First Schedule appears on the reverse of page 1 and is in these terms: “[ONE] underground cables and [NO] low voltage telephone and signalling cables along the route shown by a [RED] line on the plan across the land of the Owner …… on the said plan.” The words in square brackets have been inserted in manuscript. There is a blank between the words “ Owner” and “on the said plan” which has not been filled. The plan stapled to the document is an Ordnance Survey extract, with the Strip coloured in red and the words “ Copy of Eastern Electricity Plan for proposed installation” written thereon. Two arrows are drawn onto the plan at either end of the Strip with the words “Proposed cable route”. However, I have a number of reservations about the 1988 Wayleave. In particular, the First Schedule has not been completed, in that the land of the Owner is not identified by reference to the plan. Secondly, the plan itself is described as “ Copy of Eastern Electricity Plan for proposed installation”, but no original has been produced. In any event, the plan does not marry up with the First Schedule of the 1988 Wayleave, since the Strip is coloured red, but the route of the underground cable (as described in the First Schedule) is not shown by a red line. The plan itself is not printed on the same paper as the wayleave. In my judgment, it would be unsafe to rely on a document which displays these defects and anomalies on its face.

 

THE OTHER MATERIAL

42.   In case I am held to be wrong about the admissibility of the new evidence, I should describe it in more detail. The new documents consist of the 1991 Wayleave (number 11/719766), a letter from Mr Gill dated 4 ^th December 1989, and a series of remittance advices and payment schedules. The 1991 Wayleave provides an interesting contrast to the 1988 Wayleave in some respects. The First Schedule has been completed in typescript, and clearly identifies the works to be carried out on the Owner’s land as follows: “The placing of an overhead line consisting of One Strut shown by a black dot on the attached plan across the land of the Owner shaded red on the said plan”. The plan is printed on the same paper as the document itself, and there is no reference to it being a copy. The strut is placed within the curtilage of 42 West Drive, not on the Strip. The remittance advices and payment schedules are all headed “ 11/719766” or “ 11719766”, the same reference that appears on the 1991 Wayleave. Mrs Gill’s witness statement seeks to explain that the reference was consolidated with that of “11/719764” but there is no supporting evidence of this. Overall, these documents do not appear to take the matter very much further, even if admissible.

 

43.   In any event, the 1988 Wayleave, and the other documents (if admissible) do not in my judgment support the Respondents’ case that they were correctly registered with possessory title to the Strip. In order to be registered with possessory title under section 9(5) of the 2002 Act, a person must either be in physical possession of the land, or in receipt of the rents and profits. A person is in adverse possession either by way of his own exclusive factual possession, or by his receipt of all the rents and profits arising from the land, where it is in the possession of a third party. In the latter situation the true owner’s title may be barred if his own tenant pays the rent to a third party. However, the receipt of payments under the 1988 Wayleave, even if proved, would be insufficient for a number of reasons. At its highest the agreement simply acknowledges that the Respondents will not object to the placing of an electricity cable beneath the surface of a very small part of Strip, against a nominal yearly payment. It is akin to the grant of an easement, and does not purport to grant possession of the surface of the Strip. The sums payable by virtue of a wayleave cannot properly be described as the rents and profits attributable to possession of the land. A wayleave agreement permitting the installation and maintenance of a cable underneath the Strip could not possibly deprive a squatter, who was in exclusive factual possession of the surface, from obtaining adverse possession as against the paper title owner. The squatter and the person in receipt of the wayleave rent would not in this situation both be in possession of the land. The phrase “ in receipt of the rents and profits of the land” must be given a sensible meaning, consistent with its context, namely the law of adverse possession. In my judgment, the receipt of payments in respect of the 1988 Wayleave, even if proved, does not satisfy the requirements of section 9(5) of the 2002 Act.

 

POSSESSION OF THE STRIP - FINDINGS

44.   My findings of fact with regard to possession of the Strip are as follows.

44.1           Clearly, in days gone by the Strip was used as a pedestrian cut through between West Drive and Highfields Road. Although Mrs Rawles said that she used to ride her moped along it, and recalled Mr Gill using a motorbike, no other witnesses mentioned vehicles and I think she is mistaken in her recollection. The physical limitations of the Strip, the fact that witnesses recall it being seriously overgrown at times, and the presence of dustbins and other items in the area between the two houses (Nos. 95 and 97) make it most unlikely that it would even be possible to ride such vehicles on the Strip. During the period that the Strip was used for an access it could not be said that anyone had exclusive factual possession of it.

44.2           However, the use of the Strip as a cut-through diminished over the years. West Drive was adopted as a highway and made up to highway standards some time in the 1980s, and prior to that time it was rough and unsurfaced. As Mrs Stevens put it, “ it would have made sense for the houses on West Drive to have short cuts through to Highfields Road so as to avoid the need for a long walk around what was originally in part at least a relatively rough road which was not adopted and not made up to normal highway standards.” Although the Respondents’ witnesses sought to give the impression that the Strip was an important and necessary means of access, the fact that the owners of 45 West Drive, who had an express right of way over it, do not appear to have used it at all, suggests that it became largely redundant as an access from the time that West Drive was adopted and made up as a road.

44.3           Mrs Kember began to store her dustbins on the land adjacent to her house (the hatched area on her plan) from the time that she moved in, namely the late 1970s. There was a gate in the position marked “A” on her plan, which was there when she moved in and appeared to be an established access to the rear of No. 97.

44.4           Use of the Strip as a through access ceased altogether during the course of 1999, when Mr Sexton erected the first and second fence panels, and the chicken sheds. From that time onwards, he and Mrs Kember between them had exclusive possession of the Strip eastwards from the end of Mrs Kember’s garden. Although the Gate was not erected by Mrs Kember until 2004, the area between the two houses, as far as the first fence panel, was only used and enjoyed by them, in the sense that they stored their bins and other items there, and eventually their wheelie bins. Mrs Kember treated the section of the Strip between the end of her garden and Mr Sexton’s second fence panel (at point B) as her own, there being no physical boundary between the Strip and garden at this point.

44.5           The section of the Strip between the end of her garden and West Drive had become overgrown by 1999 as Mrs Street attested. The Google photographs produced by the Respondents show a progressive increase in the amount and extent of vegetation along the Strip from 2000 onwards.

44.6           In October 1972 solicitors acting for the then owner of No. 97 wrote to Mr Gill for permission to lay a pipe under the Strip on the grounds that “We understand … that you may own a strip of land between [No.95 and No.97] ”. There is no documentary evidence that any such permission was given, and I consider it improbable that any oral permission was given.

44.7           Mr Gill has on other occasions acted as if he was the owner of the Strip. For example, he required Mr Jeffreys to erect a fence alongside his garden, and occasionally mowed the grass on the Strip. He cleared vegetation from the Strip in 1997, which gave rise to a heated conversation with Mr Sexton. However, he did not ask Mrs Kember for a key to the Gate until approximately 2006 – which he was never given – and there was at least one altercation between the Gills and the Sextons regarding the Gate and use of the Strip in 2009. Neither the Sextons nor Mrs Kember ever acknowledged that Mr Gill had any right or interest in the Strip.

44.8           The Applicants remained in possession of the parts of the Strip which I have referred to above until finally dispossessed in or around March 2013. From that time onwards, it cannot be said that anyone was in exclusive factual possession of the Strip, which remains the position today.

44.9           For the reasons explained in more detail above, the Respondent were neither in possession, nor in receipt of the rents and profits of the Strip, by virtue of the 1988 Wayleave.

 

MY ASSESSMENT OF THE WITNESSES

45.   In reaching these conclusions I have preferred the evidence of the Applicants and Mrs Street to that of the Respondents where it conflicts. There is a fundamental disagreement as to the date when the Applicants took control of the Strip, a conflict which is of critical importance in relation to the claim of adverse possession. The Applicants say it was from 1999 onwards, whilst the Respondents say that the Strip was open and unobstructed until 2009. With regard to this specific issue, the Respondents rely on the oral evidence of Mrs Gill, her daughter Mrs King and her son in law Mr Anthony Langford, and on statements from other Langfords (presumably her grandchildren). My resolution of this conflict depends on my assessment of the witnesses.

 

46.   I found Mr Sexton to be a thoroughly convincing witness. He gave an account that was clear, detailed and internally consistent, and was not shaken at all under Mr Gore’s very thorough cross-examination. Although Mrs Kember freely acknowledged that she was “ not good on dates”, she was quite clear as to the central facts and chronology, which were consistent with Mr Sexton’s evidence. Again, she was a credible witness. Mrs Street was the only witness concerning the use of the Strip from 1999 onwards who is independent from any of the parties. She gave clear evidence as to the use and appearance of the Strip from a period of about 3 months after Mr Jeffreys moved into 45 West Drive. In my view she was a patently honest witness, with no axe to grind and doing her best to assist the Tribunal.

 

47.   By contrast, I found Mrs Gill to be a very unsatisfactory witness. This dispute has been running in one shape or form since early 2012, by virtue of the previous application to the Land Registry and reference to the Adjudicator, and the ongoing County Court proceedings. Detailed letters before action have been written, and voluminous witness statements and pleadings have been prepared. However, Mr Gore asked for permission to ask some supplemental questions of Mrs Gill, which I allowed. In the course of her examination in chief she mentioned, for the first time, that Mr Sexton had told her in June 2010 that he had only been on the Strip for two years. If this were true it would obviously be a very important piece of evidence and as such it is remarkable, and highly suspect, that the evidence was given for the first time at the hearing. Mr Sexton had already given an account of his conversation with Mrs Gill in May 2010 – see his witness statement at paragraph 18. Mrs Gill was also driven to acknowledge in cross examination that she did not know whether Mr Sexton had blocked the Strip in 2008 or some time before. She was extremely evasive in answering this question going beyond any allowance that might be given for her age. Eventually she admitted that she had no idea when the Strip had been blocked. Given that the principal factual dispute between the parties relates to the timing of the Sextons’ entry onto the Strip, and given the consistent repetition by the Respondents of the 2009 date throughout these and earlier proceedings and letters before action, this was an extraordinary admission. Regrettably, I formed the view that Mrs Gill was not a reliable witness.

 

48.   Neither Mrs Rawles nor Mrs Stevens could speak as to the position after 1998. The only witnesses who said that the Applicants took possession as late as 2009 were members of the Respondents’ family. That in not itself, of course, a reason for discounting their evidence. However, it has to be said that both Mrs King and Mr Anthony Langford demonstrated animus against the Respondents which in my judgment did compromise their evidence. As to Mr Langford, on various occasions between 2011 and 2013 he was personally responsible for removing from the Strip and in some cases destroying items belonging to the Sextons, and was involved in various altercations. He evinced a degree of disdain for the Applicants which was not attractive, and it was my impression that he, rather than Mrs Gill, was the prime mover in this dispute. He stated that some of his actions – including the attempt to fence off the Strip after all parties had been advised to cool off – were taken on the advice of police officers, but that seems highly improbable to me, and no evidence from the police was obtained in support. Generally, I do not think I can rely on his evidence.

 

49.   There were also aspects of Mrs King’s evidence which were not credible, such as the lengthy conversation with Mrs Sexton said to have taken place in 2001, including a discussion regarding the Sextons’ proposed gate. I am inclined to agree with Mr Wilson’s analysis, to the effect that this evidence was based on her belief that the Sextons had erected the Gate in 2001, when in fact it was erected by Mrs Kember in 2004. Ms King would not have known this when making her witness statement. A photograph had been produced by Mr Sexton indicating that the Gate had been erected in 2001, but he readily conceded in evidence that he had been mistaken about the date. This suggests that Mrs King had no actual knowledge of the Strip in 2001, contrary to her evidence. I accept that she used the Strip in her younger years, as she says, but I do not accept that she continued to do so after 1999.

 

50.   The photographic evidence was, as is so often the case with Google satellite pictures, inconclusive and ultimately of no assistance. William Langford’s evidence as to his alleged use of the Strip post-2009 could not be explored in cross-examination, and I cannot give it any weight where it conflicts with the Applicants’ evidence.

SHOULD THE REGISTER BE ALTERED BY CLOSING THE POSSESORY TITLE?

51.   Since I have held that the Respondents were not in possession of the Strip nor in receipt of its rents and profits, within the meaning of section 9(5) of the 2002 Act, it follows that they were registered by mistake. The mistake lay in the Land Registry’s belief (founded on the Respondents’ certificate in the FR1) that they were in actual possession. The Applicants have of course applied to be registered with a title to the Strip, but before considering that issue, I must decide whether I should alter the register by closing the Respondents’ possessory title. Schedule 4 paragraph 6(2) of the 2002 Act sets out the approach to be adopted where the proprietor of the registered estate is in possession of the land in question. Here, " possession" means " physically in his possession" – see section 131(1) of the 2002 Act. The relevant date is the date of the application for alteration - see Paton v Todd [2012] EWHC 1248 (Ch) at paragraph 60. This is a matter of record. The Applicants first made an application in October 2011 which was cancelled on 16 ^th October 2012 due to failure to comply with an unless order made by the Adjudicator. The current applications were made in late December 2012 and early January 2013. It is common ground between the parties that the Strip was not finally cleared of the Applicants’ items until March 2013. Therefore, on any view, the Respondents were not in possession at the time of the application. In any event, even if the land had been cleared, and bearing in mind the nature of the Strip as an accessway (once it had been cleared), the acts of the Respondents did not amount to physical possession even after the clearance. Accordingly, the Respondents do not have the additional protection afforded to proprietors in possession under paragraph 6(2).

 

52.   If I should be wrong about this, and the Respondents were in physical possession of the Strip at the relevant date, an alteration may be made if they have by fraud or lack of proper care caused or substantially contributed to the mistake or it would for other reasons be unjust for the alteration not to be made – see Schedule 4, paragraph 6(2)(a) and (b). In this case, the Respondents' mistaken registration of the Strip with possessory title was caused or substantially contributed to by their lack of proper care, in that their certificate at panel 12 of the FR1 was inaccurate. Were it not for the statement that they were in possession at the date of the FR1 in early 2010 – which was untrue – the registration would not have been effected. If the Land Registry had been informed (by the Respondents ticking the appropriate box on the FR1) that the Applicants were in possession and trespassing on the land as the Respondents claimed, it is very likely that they would have been notified of the application and would have had an opportunity to object to it. In any event, in all the circumstances of this case it would be unjust to refuse to make the alteration. It would not be just for the Respondents to retain the fruits of their flawed application.

 

EXCEPTIONAL CIRCUMSTANCES

53.   Schedule 4 paragraph 6(3) of the 2002 Act provides that where the registrar has power to alter the register, he must do so unless there are “ exceptional circumstances which justify not making the alteration”. In other words, where a mistake has been proved, it must be corrected in the absence of exceptional circumstances. The correct approach in applying this sub-paragraph was set out by Morgan J. in Paton v Todd at paragraph 66, as follows: “ Thus, in a case within para. 6(3), the court must ask itself two question: (1) are there exceptional circumstances in this case? and (2) do those exceptional circumstances justify not making the alteration?” Having identified the exceptional circumstances that exist in any particular case , the starting point for considering whether those circumstances justify a refusal to alter the register is the effect of such a refusal on the parties - see paragraph 79 of Paton v Todd.

 

54.   Mr Gore, for the Respondents, argues that there are such exceptional circumstances present in this case, which justify a refusal to alter the register. He relies in particular on the following factors. First, since (he argues) the Applicants are not entitled to be registered themselves, the result would be that there is no registered proprietor of the land. This is an exceptional circumstance – see Paton v Todd at paragraph 88 . Secondly, closure of the Respondents’ title creates uncertainty as to the title to the Strip, and is likely to invite further conflict and litigation. Thirdly, the Respondents have some form of paper title to the Strip, albeit that their title is insufficient to be registered with title absolute. All these circumstances are exceptional, and justify not closing the Respondents’ title.

 

55.   Mr Wilson, for the Applicants, draws my attention to the following factors as circumstances which justify the alteration: factors which may also be relevant to paragraph 6(2) of Schedule 4.

(1) The Respondents were mistakenly registered as a result of their failure to give accurate and sufficient information to the Land Registry. Their behaviour should not be rewarded by allowing them to remain as registered proprietors.

(2) The Respondents argued that they should have been registered with qualified title which would justify not making an alteration. For reasons already set out, it is highly unlikely that the Land Registry would have granted qualified title to Respondents. If they wish to be granted qualified title they should apply in the usual way and the Land Registry should be left to make such enquiries and give such notice to others as it things fit (in the context of any findings made by the Tribunal in these proceedings) and others should be provided with the opportunity of making such objections as they think fit.

(3) It is submitted by the Respondents that an alteration would cause injustice to Respondents as, as far as they were aware, they had purchased the freehold of the Strip. The conveyance to Respondents did not state that they were obtaining the freehold to the Strip. The 1959 Conveyance merely purported to convey " all the rights and interests of the owner for the time being" over the Strip. This clearly indicated doubt as to what, if any, such rights would be. Furthermore, this was in the context of the 1943 Conveyance which expressly uses the formulation "(if any)" in regard to the title offered, and which had been endorsed with the Memorandum recording the 1947 Conveyance.

(4) The Respondents point to the finding in Paton v Todd that an application by a party who has no interest in the land can be regarded as an exceptional circumstance, albeit not one that would, in itself, justify not making an alteration. The circumstances in Paton v Todd are very different to those that are before the Tribunal. In Paton v Todd, the applicants were never in actual possession of the disputed land. Here, the Applicants actually took possession of the land, and were dispossessed.

(5) The Respondents unfairly obtained registration of the Strip with the expressed intention of giving them an advantage in civil proceedings against the Applicants. In all the circumstances, it would be grossly unjust to reward their behaviour by allowing them to keep the unfair advantage they had obtained by their mistaken registration.

(6) . The Tribunal is invited to find that, if the Respondents are allowed to retain their unmerited registered title over the Strip, it is highly likely that they will continue to use it as a metaphorical stick with which to beat the Applicants (and others). It is of particular note that the Respondents consistently allege that some rights which the Applicants exercise over the Strip (rights of access to No.95 and rights of drainage) were granted by way of oral permission (however unlikely that may be). Such allegations of permission are likely to have greater significance if the law considers that Respondents are the owners of the Strip. There is evidence that the Respondents attempted to fence off the whole of the Strip despite all parties having accepted the advice of the Anti-Social Behaviour Unit of the local authority to refrain from going on the Strip.

(7) The Respondents are prepared to put forward, and/or allow others to put forward, allegations and accounts that are untrue.

(8) The Respondents have demonstrated that they are prepared to behave, and encourage others to behave, in a high-handed and aggressive fashion which would not bode well for the future should they retain possessory title of the Strip.

(9) No injustice would arise from closing the Respondents' possessory title. They would still be entitled to enforce such legitimate rights as they might have over the Strip.

 

56.   In line with the guidance in Paton v Todd, I must first decide whether there are any exceptional circumstances, and, if so, whether they justify a refusal to alter the register by closing the title as regards the Strip. The fact that the Applicants are not immediately entitled to be registered as proprietors, for the reasons I set out below, might properly be regarded as an exceptional circumstance. Mr Gore submits that the result would be to create uncertainty as to the ownership of the Strip, which is itself an exceptional circumstance. If there were no practical purpose to be served by altering the register, that might also constitute an exceptional circumstance – see Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch). I do not consider the fact that the Respondents claim to have title to the Strip to be an exceptional circumstance. As matters now stand they are in no better position than the Applicants, neither party being able to obtain a title absolute.

 

57.   In my judgment, however, I am satisfied that the only exceptional circumstance which exists is the fact that (subject to the outcome of the Applicants’ applications) the Strip may be left without a registered proprietor. In my judgment this does not justify the refusal of an order to close the possessory title. I consider that Mr Wilson’s submissions on this point are compelling. It must not be forgotten that there is a “presumption” – for want of a better word – in favour of altering the register to correct a mistake. I do not consider that there is any justification for allowing the Respondents to retain a possessory title, merely because the alternative might be to leave the Strip unregistered – depending on the outcome of the Applicants’ present application or potential future applications. The following remarks of Morgan J at paragraph 85 of Paton v Todd are in point: “ The Deputy Adjudicator also thought that it was the policy of the LRA 2002 to provide a register from which one could identify the owner of any parcel of land. In a general sense, that is true but it does not seem to me to justify registering as the proprietor someone who was not the unregistered owner of the land and who is not otherwise entitled to the land, just to produce the result that there is an identified registered proprietor. Further, I do not see that the fact that the owner of the blue land is and is likely to remain unknown as a justification for registering as the owner someone who has not been the owner of the land.” It seems to me that this reasoning applies in the present case. In the present case, on their own admission the Respondents decided to apply for a title to the Strip for the express purpose of strengthening their hand in recovering possession from the Applicants. Once the Land Registry had rejected the Respondents’ defective paper title, they ought not to have been registered, and were only registered because they had certified that they were in possession. There are no circumstances here that would justify the refusal of an order to close the title as regards the Strip.

 

DO THE APPLICANTS HAVE A PAPER TITLE?

58.   A decision that the Respondents’ title should be closed leaves open the Applicants’ own claim to be registered with an absolute or possessory title. Mr Wilson, as I understand it, puts his case in this way. First, he argues that the Applicants are able to establish a paper title to the Strip on the basis of the usque ad medium filum presumption, the presumption applying even where land on both sides of the road are in the same ownership – see Paton v Todd at paragraph 34 citing the judgment of Neuberger J in Commission for the New Towns v JJ Gallagher Ltd [2003] 2 P&CR 24 . He also submits that the presumption applies to private as well as to public ways. Although no application has been made to the Land Registry based on a paper title, he argues that the Tribunal could nevertheless direct the Chief Land Registrar to grant an absolute title. Secondly, as regards Mrs Kember, he argues that she is entitled to be registered with a possessory title to the hatched land (adjacent to her house) based on more than 12 years’ adverse possession under the pre-2003 law. As regards the Sextons, and as regards Mrs Kember’s claim to the cross-hatched land (at the rear of her garden), I had understood Mr Wilson to have submitted that the Applicants were entitled to a possessory title, even though it cannot be shown that the paper title owner has been barred. He pointed to the wording of section 9(5) of the 2002 Act, which merely requires a person to be “ in actual possession” of the land, and argued that mere possession is sufficient. He referred to this as a “Common Law Possessory Title”. It is true that there is no statutory requirement for any particular period of actual possession, although it is the practice of the Land Registry not to register the squatter's title in the absence of evidence to show that the paper title has been extinguished – see Ruoff & Roper on Registered Conveyancing at 6.006. In his closing submissions, however, he seems to have rowed back from this argument, submitting that “ the Tribunal is not invited to direct that the Registrar grant As with Registered Possessory Title simply by reason of that possession (in the absence of a successful claim of adverse possession or under the Presumption referred to below).” I am not entirely clear as to how the Applicants now put their case with regard to adverse possession, although of course their applications based on adverse possession form the subject-matter of the dispute that has been referred to the Tribunal.

 

59.   Dealing first with the claim to a paper title, I accept that there is at least an arguable case based on the presumption. However, I do not think that it would be right to deal with the issue in the absence of an application to the Land Registry. The correct procedure would be for an application to be made in FR1, based on the paper title. This gives the Land Registry an opportunity of considering the title offered. If the Land Registry is satisfied with it, so be it. If not, it will reject the application. If the Land Registry accepts the application, but an objection is received from a person who receives notice of the application (if any), the dispute may be referred to the Tribunal.

 

WERE THE APPLICANTS IN ADVERSE POSSESSION?

60.   As regards the claim to a possessory title, whether the case is founded on the Limitation Act 1980, Schedule 6 of the 2002 Act, or mere possession, on any footing the Applicants must establish that they were in a sufficient degree of possession as at the date of their application. For these purposes, this means exclusive factual possession, as this phrase was explained in the leading case of J.A Pye (Oxford) Ltd v Graham [2002] UKHL 30. At paragraph 41 Lord Browne-Wilkinson cited this well-known passage from the first instance decision in Powell v McFarlane (1977) 38 P & CR 452 as encapsulating the test: “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. …. 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."

 

61.   I have found that the Sextons were in exclusive factual possession of that part of the Strip that lay between the two fence panels, from 1999 until 2013. Given Mr Sexton’s evidence, they also clearly had an intention to possess. Mrs Kember was in the same degree of possession of the length of the Strip between Mr Sexton’s second fence panel, and the end of her garden, also with an intention to possess. Although not enclosed by her, it was practically inaccessible by reason of the overgrown nature of the Strip between that point and 45 West Drive. The Sextons and Mrs Kember between them were in exclusive possession of the areas beside their respective houses. Although the Gate was not erected until 2004, once the Strip had ceased to be used as a though route in 1999, only they had any use for the land and in practice only they were in possession of it. All other things being equal, therefore, the Applicants were in adverse possession of the length of the Strip, from the public footpath as far as the end of Mrs Kember’s garden, from 1999 onwards.

 

ARE THEY ENTITLED TO A POSSESSORY TITLE?

62.   These findings do not inevitably lead to their registration with possessory title. There are problems with these claims, in that the Applicants are barred from making an application under Schedule 6 of the 2002 Act by reason of paragraph 1(3)(a), so they could not obtain a title as matters now stand. However, as a result of my Decision, it has been determined that (a) the Respondents do not have a good title to the Strip and (b) they have never been in possession of the Strip. As a result, I shall direct the Chief Land Registrar to close the possessory title as regards the Strip. Once the title is closed, it would seem to follow that the Respondents’ trespass action should be struck out. At that point, the Applicants would no longer be barred under paragraph 1(3)(c), and they could make a new application. However, given that they have been out of possession since March 2013, it may not be open to them to do so, since they would probably not qualify under either of paragraph 1(1) or paragraph 1(2)(a) of Schedule 6. On that basis, their only possibility of being able to obtain a possessory title would be by reference to the current applications. Until the County Court claim has been struck out, however, those applications cannot be pursued. Once the proceedings are struck out, there would no bar to those applications proceeding. At that point, it might be possible to award a possessory title to the Applicants.

 

63.   There is a further issue, namely the extent to which the Applicants would be obliged to satisfy the requirements of paragraph 5 of Schedule 6, in the event that they were able to pursue the current applications. The Respondents were only entitled to receive notice of the Applicants’ applications because they were the registered proprietors of the Strip. As such, they were in a position to serve a NAP counter-notice, invoking the requirements of paragraph 5. Once the Strip is removed from their possessory title, they have no status in relation to the Strip. If a new application were made, they would not receive notice of it. In the circumstances, it might be regarded as anomalous that the Applicants are obliged to satisfy the conditions, merely because the Respondents were wrongly registered as proprietors as at the date of application. The position of the true paper owner of the Strip would not be prejudiced, because registration with possessory title does not prejudice the interest of such a person – see section 11(7) of the 2002 Act. Alternatively, even if the NAP still applies, this might be a case where the second condition of paragraph 5 applies.

 

THE PROPOSED ORDER

64.   At all events, given the complexity of the situation, and the technical difficulties that I have referred to, I shall give effect to the Applicants’ applications dated 28 ^th December 2012, but only to the extent of closing the Respondents’ title as regards the Strip, by directing the Chief Land Registrar to remove the Strip from the Respondents’ title number CB353314. I shall stay these proceedings as regards the residue of the application, and give permission to apply to the Tribunal as regards the matters outstanding. The Applicants can then decide whether they wish to pursue the existing applications, having disposed of the County Court proceedings, or to make some other application. If the matter does come back to the Tribunal, I shall reserve the reference to myself, and at that point consideration may be given to whether the Respondents should be heard, and on what issues. For the purposes of this Decision, I shall therefore direct the Chief Land Registrar to give effect to the Applicants’ applications dated 28 ^th December 2012, by removing the Strip from Title number CB353314. On the face of it, I do not see why costs should not follow the event, the essential dispute being whether or not the Respondents’ possessory title should be closed. I am minded to make an order that the Respondents should pay the Applicants’ costs, to be subject to a detailed assessment on the standard basis if not agreed. However, I will allow the Respondents the opportunity of making submissions on costs, to be filed and served no later than Wednesday 9 ^th July 2014. The Applicants may respond within 7 days. I shall then consider the issue further.

 

Dated this 1 ^st day of July 2014

 

 

 

BY ORDER OF THE TRIBUNAL