REF/2006/0273

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN

	(1) LESLIE JOHN WILFRED APPLEBY
(2) LOUISE ELSIE APPLEBY

							APPLICANTS
and

	GILLIAN CLAIR DERBYSHIRE

							RESPONDENT

Property Address: Land known as 53 High Street, Rocester, ST14 5JU

Title Number: SF404236

Before: Mr Rhys sitting as Deputy Adjudicator to HM Land Registry

At: Stafford Combined Court Centre

On: 29th and 30th July 2008

Representation:

Applicant:		Mr Matthew Haynes of Counsel instructed by Messrs 
Cowlinshaw & Mountford
Respondent:		Mr Andrew Maguire of Counsel instructed by Messrs Eddowes, 
Simm & Waldron

D E C I S I O N

Keywords – Alteration of register – construction of conveyances – admission of extrinsic evidence of subsequent conduct

Cases referred to:

Ali v Lane [2006] EWCA Civ 1532
Alan Wibberley Building v Insley [1999] 1 WLR 894
St Edmundsbury v Clark (No 2) [1975] 1 WLR 468

1.	On 31st March 2005 the Applicants applied to the Land Registry to alter the register of Title Number SF404236 by removing from it three adjoining pieces of land, coloured pink, blue and mauve on the Notice plan (“the Disputed Land”).  I should say that the original application was amended to include all these three parcels of land, and when I refer to the application I am referring to the amended application. The Respondent is the registered proprietor of this Title and has objected to the application.  It was not possible to settle the matter by agreement and the dispute was referred to the Adjudicator on 13th February 2006.  I heard the case over the course of two days, at Stafford Combined Court Centre, with the benefit of a Site View in the presence of the parties and their representatives on the afternoon of July 28th 2008.  Evidence on behalf of the Applicants was given by Mr and Mrs Appleby, and Mrs Morton, the daughter of the former owner of the properties in dispute.  The Respondent gave evidence, as did Mr John Forrester, her predecessor in title.  A statement of her former husband (as former co-proprietor) was also given in evidence.

2.	Before I explain the nature of the dispute, I shall briefly describe the property in question.   The Applicants are the owners and occupiers of No 51 High Street, Rocester, Staffordshire (“No 51”).  The Respondent is the owners and occupier of the adjoining property to the east, No 53 High Street (“No 53”).  The houses are attached along their frontage to High Street.  There is a door leading into No 53 directly from the High Street – this is immediately to the east (or right) of the party wall with No 51.  To the west (or left) of the party wall is doorway which leads into a covered passage running through No 51, forming in effect a tunnel under the second storey of the house.  The tunnel leads out into a yard which separates the flank walls of No 51 and 53.  The yard is paved with blue cobbles or paviors. The flank wall of No 53 is set back (to the east or right) from the northern opening of the tunnel, to the east of the line of the party wall at the front of the two properties.  Accordingly, approximately half of this yard is to the east of the front party wall line, and the other half (directly in line with the tunnel itself) is to the west.  The western half adjoins the flank wall of No 51, and the eastern half adjoins the flank wall of No 53.  This eastern half is coloured pink on the Notice Plan and I shall call it “the Pink Land”.  At the back of both houses, the yard opens out into a tarmaced area, which terminates to the north with a low wall running parallel with High Street across the back of both No 51 and No 53. To the north of this wall is the rear garden of No 51, which is to the north of both properties.  The tarmaced area is the area coloured blue on the Notice Plan and I shall refer to it as “the Tarmaced Area”.  The Tarmaced Area, at its eastern end, runs into the concrete path which runs northwards along the eastern side of the rear garden of No 51 (which, as I have said, lies to the rear of both properties).  The concrete path continues for more or less the full length of the garden.  This path is coloured mauve on the Notice Plan and I shall refer to it as “the Path”.  The Path leads into the rear garden of  No 53 – which curiously is situated behind (to the north of) No 51’s garden – and also gives access to an additional piece of land owned by the Applicants to the north-west, which has been referred to as the Allottment.  There is a separate access from the Allottment to the highway on its western side.

3.	The dispute between the parties has arisen in this way.  By a Transfer dated 30th September 1998 and made between John Forrester (1) and Anthony John Derbyshire and the Respondent (2) (“the 1998 Transfer”), Mr Forrester conveyed land by means of the following description:
“the land comprised in a Conveyance dated 19th October 1970 made between (1) Arthur Cecil Forrester and (2) John Forrester…Which said property is for the purposes of identification shown on the plan annexed hereto and thereon edged red………”.
The plan attached to the 1998 Transfer is the same as that attached to a Statutory Declaration made by Mr Forrester on 25th September 1998 (“the Statutory Declaration”) to which I refer below.  The land edged red includes the Pink Land, the Tarmaced Area and the Path. Two areas are marked in green, and one in blue, but there is no reference to this colouring in the 1998 Transfer itself.  As I shall show, however, the Statutory Declaration provides an explanation.  The Land Registry registered the purchasers with title under Title Number SF404236 on 7th January 1999 (“No.53”).  On 17th May 2002 the Respondent became the sole registered proprietor of No.53.  She has resided there since 1999, and also runs a business from the premises.

4.	Some 14 years prior to the date of the 1998 Transfer, the Applicants had purchased the adjoining property, No 51 High Street. By a Conveyance dated 16th November 1984 and made between Robert Claud Nixon (1) and the Applicants (2) (“the 1984 Conveyance”) the following property was conveyed to the Applicants:
“ALL THAT freehold property situate and known as 51 High Street Rocester aforesaid which is for the purpose of identification only delineated and coloured pink and green on the said plan annexed hereto ……SUBJECT TO the rights of way of the owners and occupiers of the adjoining and adjoined properties numbered 53 and 55 High Street Rocester aforesaid over and across the land coloured green on the said plan”.
Robert Claud Nixon, a Solicitor, was the personal representative of Ruth Hill, the widow of the original owner of Nos 51-55 High Street (Mr Rowland Hill).  He had also been the personal representative of Mr Rowland Hill, and had assented to the vesting in Mrs Hill of No 51. Although the plan attached to the 1984 Conveyance was “for identification purposes only” it is in fact a detailed scale plan and in my judgment may be looked at for the purpose of assisting in construing the parcels clause and, in particular, the reference to 51 High Street.  The plan identifies the Pink Land, the Tarmaced Area and the Path as included in the conveyance.  The land coloured green on the plan – subject to a right of way in favour of No 53 and No 55 but comprised in the sale to the Applicants – consists of the entirety of the disputed land, namely the Pink Land, the Tarmaced Area and the Path.  On the face of it, therefore, there has been a double conveyance of the Disputed Land, but since the Respondent and her former husband were the first to be registered (albeit that their conveyance is second in time) they have the better legal title.

5.	Before I summarise the parties’ respective contentions, I shall say a little more about the conveyancing history of these properties. All three properties – numbers 51-53 High Street – were in common ownership at one time.  They were conveyed to Mr Rowland Hill by a Conveyance dated 31st December 1953.  There is a plan attached to that instrument but it is not particularly helpful.  On 7th December 1962 Mr Hill conveyed No 55 to Mr and Mrs Holgate.  On 15th September 1964 (“the 1964 Conveyance”) Mr Hill conveyed No 53 to Mr Arthur Cecil Forrester, John Forrester’s father.  The parcels clause is in the following terms:
“ALL THAT messuage or dwellinghouse with the outbuildings and appurtenances thereto belonging situate and numbered 53 in High Street Rocester in the County of Stafford together with the land forming the site thereof”
There is no plan. On 19th October 1970 Mr Arthur Forrester conveyed No 53 to his son John Forrester, by reference to the same description as was contained in the 1964 Conveyance.

6.	The Applicants’ argument is simple.  They say that they obtained title to the Disputed Land in 1984, long before the Respondent and her former husband purchased No 53 from Mr Forrester and became registered as proprietors of the land.  Since they already owned the Disputed Land, Mr Forrester could not have conveyed it to the Respondent in 1998.  They point to the description in the 1984 Conveyance, and the precision of the accompanying plan, and argue that there is no room for doubt.  The Respondent counters with the argument that Mr Hill – the common vendor of Nos 51-55 High Street – had already conveyed the Disputed Land to the Respondent’s predecessor in title (Mr Arthur Forrester) by the 1964 Conveyance.  As I have said, the description in the 1964 Conveyance is somewhat vague and does not include a plan.  Accordingly, the Respondent argues that extrinsic evidence is admissible – indeed necessary – to supplement and explain the verbal description.  The Applicants agree that extrinsic evidence is admissible to some extent.  

7.	It is settled law that evidence of the physical circumstances existing at the date of the relevant conveyance may be looked at – indeed, it is often essential to do so.  It is also established that events occurring after the date of the conveyance may be considered, provided that these are of probative value and assist in identifying the intentions of the parties to the instrument.  In the recent case of Ali v Lane [2006] EWCA Civ 1532 Carnwath LJ considered the authorities and concluded as follows:

“36.	The conclusion I would be inclined to draw from this review is that Watcham remains good law within the narrow limits of what it decided.  In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to the evidence being of probative value in determining what the parties intended.
37.	The qualification is crucial.  When one speaks of “probative value” it is important to be clear what needs to be proved.  In this case the issue concerns the line of a boundary which was fixed not later than 1947.  Evidence of physical features which were in existence in the 1970s is of no relevance to that unless there is some reason to think that they were in existence in 1947, or they are replacements of, or otherwise related to, physical features which were in existence in 1947.  Similarly, evidence of Mr Attridge Senior’s understanding of the position of the boundary, or actions by him apparently relating to that boundary, is of limited probative value , even if admissible.  Such evidence begs the question whether his understanding of the boundary was well-founded, and if so how strict he was in observing it, having regard to the disused state of the disputed land during that period.
38.	I would add that in principle reference to the intentions of the parties means the parties to the original conveyance. …….In none of the cases reviewed above was account taken of the conduct of subsequent owners.  Megarry J might possibly have been willing to go further. Where the evidence of the intentions of the original parties is unclear, long and unchallenged usage may, as he said, be “…good reason for tending to construe the (original) conveyance as having done what the parties appear to have treated it as having done..” I do not read that as necessarily confined to long usage by the original parties.  We do not need to decide if that is a permissible extension of the Watcham principle.  It would only apply if there were evidence of a long period of acceptance of a specific boundary by a succession of parties on both sides of the boundary. That is not this case.  The unilateral actions of the owner of one side (Mr Attridge) could not be relied on as binding on the owner of the other.”

I was also referred to the remarks of Sir John Pennycuick in St Edmundsbury v Clark (No 2) [1975] 1 WLR 468 at 477 C-F, in relation to the need to consider the surrounding circumstances when construing a conveyance, a view which was strongly supported in Alan Wibberley Building v Insley [1999] 1 WLR 894.

8.	These are the legal principles to be applied in this case.  With regard to the 1984 Conveyance, the reference to No 51 High Street permits one to look at evidence of surrounding circumstances, in particular the physical circumstances existing at the time.  Those physical circumstances have not changed to this day.  There are of course no boundary features present which indicate whether and to what extent the Disputed Land forms part of No 51 or No 53.  However, the plan attached to the 1984 Conveyance does, in my judgment, resolve any potential ambiguities in the verbal description. It is a detailed plan, drawn by a surveyor and is more or less contemporaneous.  It clearly shows that the Disputed Land is included within No 51’s title.  The intention of the vendor – not Mr Hill, to be sure, but his personal representative and a partner in the firm that had carried out the conveyancing of Nos 53 and 55 – was obviously to include in the conveyance the Pink land, the Tarmaced Area and the Path.  No further assistance in construing the document is required.  I conclude, therefore, that the Disputed Land was purportedly conveyed by the 1984 Conveyance – I say “purportedly” since, if the Respondent is correct, such a conveyance could have had no effect since (on her case) the land belonged to Mr Forrester Senior.

9.	Accordingly, for the Respondent to succeed she must be able to show that title to the Disputed Land had already passed to Mr Forrester senior before the date of the 1984 Conveyance. Certainly, the conveyance of No 53 is vague – it simply refers to No 53 High Street and there is no plan attached to assist in construing the description.  It is obviously legitimate – indeed essential – to look at evidence of the physical features on the ground as at 1964.  It appears that they were very much as they are today.  The Pink Land has not changed.  It is part of the yard area between Nos 51 and 53 and formed from the same blue cobbles or paviors that are visible today.  The Tarmaced Area may not have been tarmaced at that time.  Mr Hill evidently tarmaced it in the 1960s but it is not clear exactly when this occurred.  If it was not tarmaced, it was simply a continuation of the brick area, leading to an apple tree in the position of the wall, and into Nos 53 and 55.  The Path was in the same position as the existing path.  The only possible difference was that the so-called “western path” was slightly less obvious, being incorporated into the rose garden at the shed end of No 51’s garden.

10.	This evidence of the physical appearance of the land in 1964 does not assist at all in determining whether any of the Disputed Land was intended to pass to Mr Forrester senior.  Since there were no physical boundaries, and I find as a fact that the Disputed Land was used indiscriminately by the owners of Nos 51-55 and their licensees, it is not possible to determine whether all or any part of the Disputed Land was included simply by looking at the physical circumstances.  As explained above, in this event it is permissible to have regard to evidence of subsequent conduct, subject to the very important caveats mentioned in Paragraphs 36 and 37 of Carnwath LJ’s judgment in Ali v Lord.  There is no evidence at all of any relevant conduct by Mr Forrester senior.  There is, however, some evidence of conduct by Mr Hill, namely the fact that he appears to have paid for the tarmacing of the Tarmaced Area, and there is no evidence of any objection by (for example) Mr Forrester Senior. Mrs Morton’s evidence was that Mr Hill removed the apple tree in the 1960s, because it was dangerous, and tarmaced the area and built the wall at the same time.  It has been argued by the Respondent that the building of a wall across the top of the Tarmaced Area denotes a recognition that it did not belong to Mr Hill.  I cannot draw that inference.  It is certainly no less likely that Mr Hill was simply recognising that the Tarmaced Area was in common use by the adjoining occupiers of Nos 53 and 55 and that he wished to separate his garden from what was in effect a public access.  It does not unequivocally point to any conclusions about the boundary.  We also know from Mr Forrester junior that Mr Hill himself, and other authorised by him, were in the habit of using the Path – however, again this does not assist in determining ownership.

11.	In terms of conduct, there is no other conduct by either Mr Rowland Hill or Mr Forrester Senior, the original parties to the 1964 Conveyance.  I am urged by Mr Maguire, for the Respondent, to consider the actions of Mr John Forrester with regard to the boundary.  Even if there were some evidence of Mr Forrester’s understanding of the boundary, it is almost certainly the case that such evidence is inadmissible.  In the words of Carnwath LJ quoted above:
 “It would only apply if there were evidence of a long period of acceptance of a specific boundary by a succession of parties on both sides of the boundary. That is not this case.  The unilateral actions of the owner of one side ……. could not be relied on as binding on the owner of the other.”

12.	Assuming that such evidence is admissible, however, in the present case the only evidence that could possibly assist the Respondent is the fact that, in the 1970s, Mr John Forrester laid gas pipes in the Path and subsequently electrical cables and water pipes, and then made the Path good where damage had been caused.  I do not think this necessarily points to any particular view of ownership.  On any footing, No 53 is entitled to a right of way over the Path.  That would not in itself permit a dominant owner to lay such services, but it is absolutely clear from the evidence that I have heard that all these neighbours lived in complete harmony and co-operation prior to the unfortunate dispute that has now arisen – certainly during the lifetime of Mr and Mrs Hill. The fact that Mr Hill did not seem to object to the laying of these pipes – even if he was still alive at this time, which is itself in doubt – does not in my view evidence any settled and shared view that the Path belonged to John Forrester.  In any event, of course, these actions do not relate to the remainder of the Disputed Land – namely the Pink Land and the Tarmaced Area.

13.	In all the circumstances, therefore, I cannot find any extrinsic evidence which allows me to conclude, on the balance of probabilities, that the Disputed Land was conveyed to Mr Forrester Senior in 1964.  I am therefore left with the clear words and plan of the 1984 conveyance which in my judgment manifestly evidence an intention to convey the Disputed Land to the Applicants.  Mr Nixon, the vendor, who had been Mr Rowland Hill’s solicitor and executor is likely, I think, to have known what land remained within Mr Hill’s title (as passed to his widow), and would not have included land which he understood had been already sold. Since I cannot be satisfied that the Disputed Land had passed to Mr Forrester Senior in 1964, I conclude that it passed to the Applicants in 1984.  
14.	Accordingly, I consider that the Applicants are entitled to succeed in their application, and the Respondent’s objection fails.  I shall therefore direct the Chief Land Registrar to give effect to their application dated 31st March 2005.  I am also minded to award the Applicants their costs of the adjudication on the standard basis, to be subject to a detailed assessment.  However, I will give the parties an opportunity of making written submissions on the issue.  I direct that the Respondent shall file any such submissions on or before 18th September 2008, and the Applicants may respond on or before 26th September 2008.  When these are to hand, I shall make the appropriate order.

DATED this 2nd day of September 2008

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY