REF/2015/0711

PROPERTY CHAMBER LAND REGISTRATION

FIRST-TIER TRIBUNAL

IN THE MATTER OF A REFERENCE

UNDER THE LAND REGISTRATION ACT 2002

 

 

BETWEEN

MRS DESTINE MEHMET

 

APPLICANT

and

 

EUROROSE PROPERTIES LIMITED

 

RESPONDENT

 

Property Address: 85 Leasdale Road London N16 6DG

 

Title Number: MX215296

           

________________________________________________________________________­__________

D E C I S I O N

__________________________________________________________________________________

1.      On 15^th December 2014 the Applicant applied to HM Land Registry in Form DB for the common boundary between her title and the Respondent’s title to be determined pursuant to Part 10 of the Land Registration Rules 2003 (“the Rules”).  The Applicant is the registered proprietor of 85 Leadale Road, N16 and the Respondent the registered proprietor of 87 Leadale Road.  The application was supported by a detailed boundary survey and report dated 24^th October 2014 (“the Boundary Survey”), prepared by Mr Kevin Hainsworth, a Chartered Surveyor.  This included a plan showing the claimed legal boundary, depicted by a red line on the accompanying plan and marked A-B-C-D-E(“the Applicant’s Boundary”).  The Respondent objected to the application, on the grounds that the boundary line had been agreed and confirmed by surveyors acting for the Applicant and the Respondent’s tenants in a Party Wall Award dated 28^th February 2014 (“the Award”).  The dispute was referred to the Tribunal on 15^th October 2015. 

 

2.      By an application dated 26^th January 2016, the Respondent applied to the Tribunal for an order pursuant section 110 Land Registration Act 2002 (“the Act”) that the Applicant should commence proceedings in Court for an order determining the boundary. The basis of the application was that the Tribunal lacks jurisdiction to determine the issues in dispute between the parties.  The submission is explained in paragraph 11 of Miss Walker’s Skeleton Argument as follows:

“As is clear from the [parties’] statements of case, this is not a simple determination of an exact boundary.  It is, instead, a boundary dispute.  The issue is not where the physical boundary between the parties’ properties lay under the relevant conveyances and whether that is sufficiently certain.  It is where the legal boundary currently is, in light of all the circumstances of the case.  As such, the Tribunal’s binary jurisdiction to either accept or reject the Applicant’s DB Application would not resolve the real issues between the parties. It would not be able to determine the Applicant’s alternative claim to adverse possession, if it disagreed with her primary position under the conveyance, nor would it be able to determine the further issues of res judicata and estoppel raised by the Respondent.”

 

3.      The Respondent relied on a recent decision of HHJ Dight in the Upper Tribunal – Murdoch v Amesbury [2016] UKUT 3 (TCC) – in support of the argument that the power of the Tribunal is “binary”, in the sense that it “may direct the Registrar to give effect to or cancel the original application but nothing else.  There is no power for the [Tribunal] to prefer the objector’s position and to direct the Registrar to give effect to that position.  Nor is there any power to give directions requiring the Registrar to give effect to other findings and conclusions made by the [Tribunal] in the course of giving ….. “written reasons for the decision”…..”   It further points out that the Registrar’s Case Summary is limited to determining the exact line of the boundary, and there is no reference to adverse possession.  The Respondent submits that the dispute is therefore beyond the Tribunal’s jurisdiction, and the proper course is to direct the Applicant to commence court proceedings for a declaration as to the exact line of the boundary.

 

4.      Before considering the relevant authorities on determined boundaries, including Murdoch v Amesbury, I shall first summarise the statutory provisions governing the Land Registry’s jurisdiction to determine the exact line of the registered boundary.  The starting point is section 60 of the Act which is in these terms:

“Boundaries

(1)   The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section.

(2)   A general boundary does not determine the exact line of the boundary.

(3)   Rules may make provision enabling or requiring the exact line of the boundary of a registered estate to be determined and may, in particular, make provision about—

(a)   the circumstances in which the exact line of a boundary may or must be determined,

(b)   how the exact line of a boundary may be determined,

(c)    procedure in relation to applications for determination, and

(d)   the recording of the fact of determination in the register or the index maintained under section 68.

(4)   Rules under this section must provide for applications for determination to be made to the registrar.

 

5.      The relevant rules are Rules 118-121.  These provide both the procedure to be followed, and the criteria to be applied.  An application must be made in Form DB, and be accompanied by a plan identifying the claimed boundary together with “evidence to establish the exact line of the boundary.”  Although the Rules themselves do not prescribe any particular form of plan, or any required scale and degree of accuracy, a Practice Guide (No.40: Land Registry plans, supplement 4, boundary agreements and determined boundaries) issued by Land Registry has introduced certain additional requirements. By virtue of Rule 119(1)(b)If the Registrar is satisfied that “the applicant has shown an arguable case that the exact line of the boundary is in the position shown on the plan, or plan and verbal description, supplied in accordance with rule 118(2)(a)” he will serve notice on the adjoining land owners, to give them an opportunity to object.  If objections are received, which are not disposed of by agreement and are not considered “groundless”, the matter must be referred to the Tribunal under section 73(7) of the Act.

 

6.      The purpose of the procedure is to enable the Land Registry to determine the exact line of the boundary – to substitute an exact line for the general boundary line that normally applies.  The boundary in question is, of course, the legal boundary.  It may follow a physical boundary, and usually will do so, but the word “boundary” in this context is manifestly the (possibly invisible) legal demarcation between one registered title and another.  Although there is no definition of a general boundary in the Act, there is no reason to think that the guidance given in Rule 278 of the Land Registration Rules 1925 does not apply, namely that it does not indicate “whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream”. A boundary determined under section 60 of the Act and the applicable Rules is, by contrast, intended to be exact.  It is provided by Rule 120 that the Registrar shall, when the boundary has been determined, “add to the title plan of the applicant’s registered title and, if appropriate, to the title plan of any superior or inferior registered title, and any registered title affecting the other land adjoining the determined boundary, such particulars of the exact line of the boundary as he considers appropriate.”  He may, instead of or in addition to providing verbal particulars, make reference to “any other plan” – that is, a plan other than the title plan – identifying the exact line of the boundary.  Land Registry practice is to refer to the DB plan accompanying the application, where the application succeeds.  However, the Rules themselves permit a description of the exact boundary by means of verbal particulars alone, and/or by any other plan, not necessarily the original DB plan.  The overarching purpose of the DB process is, expressly, to enable the Registrar to determine the exact line of the legal boundary between two titles.  The procedure contained within the Rules, and supplemented by the Practice Guide, is designed to facilitate this purpose.

 

7.      At first blush, therefore, and without reference to authority, one might think that where a disputed DB application has been referred to the Tribunal, its jurisdiction is clear – namely, to determine the exact legal boundary line between the two titles.   The original application in Form DB initiates the process.  If the Registrar considers that claimed boundary is “arguable”, he will serve notice on adjoining owners.  If there is an objection which is not groundless, the dispute must be referred.  The substance of the dispute is the line of the legal boundary.  This perhaps simplistic view is however consistent with Court of Appeal authority on the nature of the matter referred by the Registrar under section 73(7) of the Act.  The case in point is Silkstone v Tatnall [2011] EWCA 801 from which the following passage (at para.37 in the judgment of Rimer LJ) is taken:

“The first point is that, in a case like the present, ‘the matter’ referred to the adjudicator was one that required him to decide the underlying merits of the objection. He was not concerned simply to decide whether the Silkstones had an arguable case to a prescriptive right of way over No 3. He was required to decide substantively whether they did have such a right of way. He had, therefore, to consider the merits of their claim and his determination of that question would provide the answer as to whether the objection was or was not well founded. It appears to me obvious from the legislation that the adjudicator’s jurisdiction requires him to decide the underlying substance of the objection on its merits.”

 

8.      Although in Silkstone the reference from the Land Registry arose out of a disputed unilateral notice relating to a claimed prescriptive easement, the principle is the same.  The grounds of the objection are as much part of the dispute as the original application itself.  If the objector puts forward a different claimed boundary line from the applicant, for example, there seems to be no reason why the Tribunal cannot decide whether that is the correct line, in preference to that claimed by the applicant.  In any event, it seems obvious that in deciding whether the applicant’s claimed boundary is correct, the Tribunal is bound to consider the merits of the alternative boundary contended for by the objector. I stress, of course, that this reading of the statutory framework has been made without reference to the authorities.

 

9.      In the present case, the Applicant relies on the opinion of her surveyor as to the true boundary line.  His reasoning is set out in considerable detail in the Boundary Survey.  In the alternative, and if the boundary she contends for is not correct, she relies on the doctrine of adverse possession, on the grounds that she has been in adverse possession of the land claimed by the Respondent and has barred its title.  The Respondent disagrees with his opinion as to the true boundary line, for the reasons explained at paragraphs 8 to 17 of its Statement of Case.  Instead, it contends for a different line: “For the avoidance of doubt, the Respondent avers that the true and/or exact line of the boundary between No.85 and No.87 is a straight line between the historic concrete posts at the end of the boundaries of No. 85 and No.87, one at the front of the properties, facing Leadale Road and one at the rear of the properties facing Timberwharf Road which follows the north face of the historic concrete spurs.”  I shall call this “the Respondent’s Boundary”.  The Respondent pleads certain facts and matters in support of this contention.  First, it relies on the opinion of three other surveyors.  Secondly, it relies on the Award by which, it contends, the exact boundary line was agreed.  Thirdly, it alleges that the Applicant is estopped from denying the Respondent’s Boundary by virtue of the doctrine of res judicata.  In turn, this is based on the contention that the boundary allegedly settled by the Award binds the Applicant.  Fourthly, the Respondent contends that the Applicant is estopped by representation from denying the Respondent’s Boundary. Again, the representation is said to derive from the Award.  With regard to the adverse possession claim, it argues that this was not the subject of any application to Land Registry and cannot be considered by the Tribunal in this reference.

 

10.  The issue in the reference is the true boundary line.  The Applicant’s DB application contends for the Applicant’s Boundary.  The Respondent objects, and puts forward a different boundary, namely the Respondent’s Boundary.  The arguments deployed in favour of the Respondent’s Boundary include estoppel and a boundary agreement, said to be contained within the Award.  As Ms Walker’s skeleton argument suggests, correctly in my view, the substance of the dispute referred to the Tribunal is “…… a boundary dispute.  The issue is not where the physical boundary between the parties’ properties lay under the relevant conveyances and whether that is sufficiently certain.  It is where the legal boundary currently is, in light of all the circumstances of the case.”    Section 60 of the Act, coupled with Rules 118-121, confers jurisdiction on the Registrar to determine the exact line of the boundary between registered titles.  Where an adjoining owner objects to the claimed boundary, and the dispute is referred to the Tribunal, it might appear perverse to construe these provisions as preventing the Tribunal from resolving the very dispute that has been referred.  Yet this seems to be the essence of Ms Walker’s argument.  She says this is “not a simple determination of an exact boundary.”, and, therefore, it is beyond the Tribunal’s jurisdiction to resolve.  She is of course relying on Murdoch v Amesbury in making this submission, an authority I shall consider in due course.  But leaving that authority to one side, a moment’s reflection will expose the fallacy of the argument.  An “exact boundary” necessarily exists in relation to every title.  There must always be a demarcation between the two legal titles, a line which may be established in a number of ways.  Usually it will follow a physical boundary, but not always.  In many cases it will be established by an examination of the pre-registration title documents. In other cases, it might have been the product of an oral or written boundary agreement.  It might have been established by means of an estoppel, which perhaps might also be considered as another form of boundary agreement.   An applicant for a determined boundary may rely on any form of admissible evidence to establish the exact line, and the Tribunal is bound to consider and assess that evidence in order to decide whether the application should succeed.  I do not see how it can be suggested that the Tribunal lacks jurisdiction to do this.  By the same token, if an objector puts forward evidence to contradict the claimed boundary – evidence of a boundary agreement, perhaps – necessarily the Tribunal must consider and assess this evidence in deciding if the applicant’s claimed line is correct.  Again, there cannot be any doubt about the Tribunal’s jurisdiction in this regard.   In other words, in order to resolve the referred DB application, the Tribunal must resolve the underlying dispute between the applicant and the objector.  If that dispute raises issues of an estoppel, or a boundary agreement, or any other issue which affects the boundary line, it is just as much within the Tribunal’s jurisdiction as an issue regarding the construction of the pre-registration title documents.  This view, I would add, is entirely consistent with the Court of Appeal’s approach in Silkstone v Tatnall.

 

11.  I shall now turn to the authorities relied on by the parties.  There are two – Murdoch v Amesbury itself, and the subsequent decision in Bean and Saxton v Katz and Katz [2016] UKUT 168.  Murdoch v Amesbury was an appeal to the Upper Tribunal from a decision of the First tier Tribunal in a determined boundary case.  The judge at first instance had held that the application failed because the plan filed in support of it did not comply with the requirements of the Land Registry Practice Guide: in particular, the plan was not accurate to a tolerance of less than +/- 10 mm.  However, she went on to make certain findings as to the exact line of the boundary, although these findings were not included in the substantive order – i.e in the direction to the Land Registry.  The party which invited her to make these findings then applied for permission to appeal, not the substantive order itself, but the findings as to the true boundary line.  The underlying ground of appeal in this respect was the alleged want of jurisdiction to make those findings.  The Upper Tribunal allowed the appeal.  HHJ Dight held that where the plan lodged in support of the DB application was defective – as the judge had held at first instance – “…….. there is no requirement in the LRA 2002 or related rules for the true position of the boundary to be identified: as will be seen, the application must in those circumstances be rejected by the Registrar or the Adjudicator/Tribunal as the case may be.” (para. 62).   However, he then went on to set out his views on the scope of the Tribunal’s jurisdiction in relation to referred DB applications.  Ms Walker has cited certain of these passages from his judgment and she relies on them as identifying the limits of the Tribunal’s jurisdiction.  It would not be appropriate to express any views as to the correctness of the decision that a defect in the DB plan is fatal to the application – albeit that the requirements as to the accuracy of the DB plan are not contained in the Act or the Rules but in the Land Registry’s own Practice Guide, which has no statutory basis.  It was common ground on the appeal that the decision was correct, and this was clearly assumed to be the case by HHJ Dight.  Accordingly, Murdoch v Amesbury is only of very limited application, being a case where it was held that the DB application failed in limine, on the basis that it was defective.  It follows that HHJ Dight’s interesting views on the scope of the Tribunal’s jurisdiction, insofar as they purport to be of general application, must be regarded as obiter dicta.  In a case where the DB application fails in limine due to a defective plan, the Tribunal has no jurisdiction to go further, and consider the true boundary line.  Murdoch v Amesbury cannot, however, govern a case where the application does not fail in limine due to a defective plan. It does not, therefore, assist the Respondent in this case, where there is no criticism of the Applicant’s DB plan itself.

 

12.  The other relevant decision of the Upper Tribunal is that of Judge Elizabeth Cooke in Bean and Saxton v Katz.  This was another DB application case.  The judge at first instance held that the boundary line contended for by the applicant was correct, save for a short section at one end (referred to at first instance and on appeal as “the Front Section”).  She therefore directed the Chief Land Registrar to give effect to the DB application in part, but specified that the boundary on the Front Section was a right angle, rather than a curve as claimed by the applicant.  The applicant appealed, on the grounds that the judge’s findings as to the Front Section were wrong on the facts.  The jurisdiction issue was not raised as a ground of appeal, and neither party contended that the judge did not have jurisdiction to make the order with regard to the Front Section. However, in view of the decision in Murdoch v Amesbury, which was referred to in the appellant’s Skeleton Argument, it was necessary for Judge Cooke to consider the jurisdiction issue.  If the judge below did not have jurisdiction to make the order with regard to the Front Section, whether or not the parties took the point the Upper Tribunal would have been bound to set aside that part of the order.

 

13.  I shall set out the most pertinent passages in the judgment at some length, since they help to explain why the decision in Murdoch v Amesbury is of no relevance to the instant case.

16.  In Murdoch v Amesbury (REF/2012/0496) the First-tier Tribunal had to address two different problems with the plan: it did not meet Land Registry’s requirements that measurements be accurate to within +/-10mm, and the Respondent disagreed with the Applicant as to where the boundary was. The judge rejected the application because the plan was not 5 satisfactory. Having done so, at the request of the Applicant she then made a finding as to the position of the boundary, on a line that did not coincide either with the Applicant’s claimed line or with the position argued for by the Respondent.

17. The Applicant appealed that decision as to the position of the boundary, on the ground that having disposed of the reference the First-tier Tribunal did not have jurisdiction to go on to decide where the boundary lay. In the Upper Tribunal in Murdoch v Amesbury [2016] UKUT 3 (TCC), HH Judge Dight allowed the appeal, on the basis that the decision went beyond the statutory jurisdiction conferred by Section 73 of the 2002 Act and Rule 40 of the Rules. He said, at paragraph 62:

“If the plan is not accurate there is no requirement in the LRA 2002 or related rules for the true position of the boundary to be identified: as will be seen, the application must in those circumstances be rejected by the Registrar or the Adjudicator/Tribunal as the case may be.”

18. The decision in the present case was quite different from the decision at first instance in Murdoch v Amesbury. The plan submitted by the Applicants was technically satisfactory. As to the position of the boundary, it was found to be accurate, save for one small section. The Chief Land Registrar was directed (pursuant to Rule 40(2)(a)) to give effect to the application in accordance with the First-tier Tribunal’s direction that the boundary was determined to be on the line on the application plan save for the small Front Section, as to which a 30 different line was prescribed (by reference to letters on a plan). Similar orders have been made routinely by the First-tier Tribunal and are not, in my judgement, within the scope of the deciding principle of Murdoch v Amesbury [2016] UKUT 3 (TCC), set out in paragraph 13 above.

19. However, HH Judge Dight also discussed the nature of determined boundary applications and the ability of the First-tier Tribunal to examine matters of title. At paragraph 62 he said: “it is the accuracy of the identification of the line, rather than title to 4the line, which is the focus of the application according to the rules.” Since that statement was not concerned with the subject matter of the appeal, it is obiter and not binding on the First-tier Tribunal. Furthermore, I think it is important that I make it clear that the First-tier Tribunal has jurisdiction to dispose of determined boundary references, such as the one in this appeal, where the objection is not to the quality of the plan but to what the plan says about the boundary and where therefore it is necessary to look at the title to the properties concerned.

21. If that were not so, then the First-tier Tribunal would be unable to follow the scheme of the Rules, which require a determined boundary 5 application to be assessed not only on the accuracy of the plan (Rule 119(1)(a)) but also on whether the line on the plan is in fact the boundary (Rules 119(1)(b)). The latter is a question about title (to the land on either side of a claimed line). Section 60 of the Land Registration Act 2002 makes no mention either of title 10 to land or to plans; but the Rules refer plainly to both. It follows that where the requirement under Rule 119(1)(b) is in issue the First-tier Tribunal can examine the evidence and decide either that the application succeeds, because the line claimed is the boundary, or that it fails, because the line claimed is not the boundary.

22. It is therefore inevitable that the First-tier Tribunal will make findings about the position of the boundary, in order to give reasons for its decision (whether the application succeeds or fails). A very recent and typical example is Noel v Knights (REF/2014/0879); another is Cantelmi v Hart (REF/2013/0880), 20 considered and upheld by the Upper Tribunal ([2016] UKUT 35 (TCC)). Similarly in allowing this appeal, I have re-made the decision of the First-tier Tribunal by making a decision that the First-tier Tribunal could have made in reviewing its decision (see paragraph 73 below). It is a decision simply to give effect to the application as if the Respondent’s objection had not been made, and I have made that decision on the basis of an examination of title to the land and of the facts found at first instance, which leads me to a conclusion about where the boundary is.

23. There is a little more to say about the decision at first instance. In this case the First-tier Tribunal’s finding was not simply that the line claimed was the boundary. The line claimed was the line on the Applicants’ plan, and the judge’s line followed it except for the Front Section, where she substituted a right angle for a curve.

24. The Appellants are challenging the decision at first instance insofar (only) as the line determined as the boundary diverges from the Horan plan in this short section. They might have argued therefore that the First-tier Tribunal did not have jurisdiction to depart from the binary pattern of success or failure. They might have sought to draw support from the obiter dicta in Murdoch v Amesbury at paragraph 74: “It is plain … that the power of the Adjudicator/Tribunal to give directions to the Registrar is binary in that he may direct the Registrar to give effect to or cancel the original application but nothing else.”

25. However, they did not do so and in my view they were correct not to do so. Rule 40 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2014 (“the Tribunal Rules”) provides:

“(1) The Tribunal must send written notice to the registrar of any direction which requires the registrar to take action.

(2) Where the Tribunal has made a decision, that decision may include

a direction to the registrar to—

(a) give effect to the original application in whole or in part as

if the objection to that original application had not been made;

or

(b) cancel the original application in whole or in part.

(3) A direction to the registrar under paragraph (2) must be in writing,

must be sent or delivered to the registrar and may include—

(a) a condition that a specified entry be made on the register of

any title affected…”

 

26. Accordingly success or failure may be in whole or in part. And Rule 40(3) above enables the First-tier Tribunal to add a condition to its direction. As to the small section where the line determined by the First-tier Tribunal differed from the Applicants’ line, I take it that the direction to the registrar to give effect to the application included a condition that a specified entry (the line along the right angle) be made on the register in accordance with rule 40(3) above.

27. Accordingly, there is no doubt in my mind that the First-tier Tribunal had jurisdiction to examine the title to the land concerned, to decide the success or failure of the determined boundary application on the basis of the decision as to where the boundary lay, and to direct the registrar to give effect to the application subject to that specific direction as to the Front Section. The appeal as regards the Front Section is successful, but not because the First-tier Tribunal lacked jurisdiction to make the direction she did as to the Front Section; there was jurisdiction to make it, but the appeal is allowed on the basis that the decision was made in error as to fact and law in so doing.”

 

14.  The decision in Bean and Saxton v Katz therefore confirms that the Tribunal is bound to consider all admissible evidence as to the true boundary line in order to reach a conclusion as to the success or failure of the DB application.  The issue for decision is the true line of the boundary, and the Tribunal is entitled, indeed bound, to resolve the boundary dispute properly so called.  Judge Cooke also confirms that the power of the Tribunal to give directions to the Land Registry is not “binary”, to use HHJ Dight’s word, but is much wider in scope.  In particular, the Tribunal can, if the facts so merit, direct the Land Registry to enter a determined boundary which departs from the boundary line shown on the plan lodged with the DB application itself.  It may be observed that in Bean and Saxton v Katz the applicant’s case on the Front Section was based either on a boundary agreement, or on a legal presumption that a person who occupies land for 20 years is presumed to have title to it.  The case succeeded on the boundary agreement point, and it was never suggested, either at first instance or on appeal, that the tribunal could not hear evidence and make findings as to the boundary agreement which defined the true boundary line.

 

15.  My conclusions, in the light of these two decisions of the Upper Tribunal, are as follows.  For the reasons already stated, there is nothing in the ratio of Murdoch v Amesbury to suggest that the Tribunal may not resolve all aspects of the boundary dispute that has arisen as a result of the Applicant’s DB application, leaving to one side, for the moment, the issue of adverse possession.  If I am wrong about this, I must decide which of two inconsistent decisions of the Upper Tribunal should be followed.  I have no hesitation in following the reasoning of Bean v Katz which, in my judgment, provides a more coherent reading of the relevant statutory provisions and procedure.

 

16.  I shall now consider the question of adverse possession.  At paragraphs 27 to 29 of the Statement of Case, the Applicant pleads as follows: “If, contrary to the Applicant’s primary case, the original boundary line between No.85 and No.87 lay to the south of the line A-B-C-D-E, then the Applicant will nevertheless say that she has acquired title to any land lying between that original boundary and the line A-B-C-D-E as a result of adverse possession.”  She provides various detailed particulars of the acts of possession upon which she relies.  She contends that as a result of her adverse possession, and the combined effect of section 15 of the Limitation Act 1980 and section 75 of the Land Registration Act 1925, the registered proprietor of No.87 held the disputed land on trust for her from 1987 onwards.  By virtue of paragraph 18 of Schedule 12 to the Act, she is therefore entitled to be registered as proprietor of the disputed land.  In its Statement of Case, the Respondent pleads that the issue of adverse possession is not within the Tribunal’s competence to decide, citing Murdoch v Amesbury.   However, in the event that the Tribunal considers itself able to deal with issue of adverse possession, the Respondent joins issue on the factual assertions made by the Applicant.  Furthermore, it pleads (see paragraph 21.1) that the occupants of No. 87, Mr and Mrs Rottenberg, are the Respondent’s tenants.  As such, adverse possession by the Applicant cannot affect the freehold reversion.

 

17.  An application for title based on adverse possession may either be made under paragraph 12 of Schedule 18 to the Act – but only where it is alleged that the proprietor’s title had become barred before 13^th October 2003 – or under Schedule 6. An application under the transitional provisions is made in Form AP1, but in Form ADV1 if it is a Schedule 6 application.  Such applications presuppose, of course, that the land subject to the adverse possession is within the title of another.  If the land is within the possessor’s title the concept of adverse possession is wholly inapplicable.  In the present case, one of the ways in which the Applicant seeks to support the Applicant’s Boundary is by virtue of the doctrine of adverse possession.  If she does establish, on the facts, that she has been in exclusive factual possession (with an intention to possess) of all the land up to the line A-B-C-D-E for more than 12 years prior to 13^th October 2003, it follows that this is the true boundary line as at the date of the DB application.  In my judgment, it is unnecessary in these circumstances for a separate application for adverse possession to be made.  Since the issue is one which must necessarily be determined in order to resolve the DB application, any findings of fact that are made would be binding on the parties.  If an application were made, the only interested parties would be the parties to this reference, and in my view such a step would be a waste of time and money, and ultimately pointless.  It follows that the issue of adverse possession is indeed one that can and should be resolved by the Tribunal in the existing reference.

 

18.  For all these reasons, therefore, I am refusing the Respondent’s application for a direction under section 110 of the Act.  Standard case management directions will be issued in due course, with a view to bringing the matter on for a hearing in the second half of this year.

 

Dated this 3^rd day of June 2016

 

 

 

BY ORDER OF THE TRIBUNAL