REF/2007/0103

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

IN the matter of a reference from hm land registry

B E T W E E N

(1)	LESLIE GORDON COOPER
(2)	JACQUELINE ANNE COOPER

APPLICANT(S)

and

PATRICIA GICK

RESPONDENT

Property Address: Land at Leaside, Windmill Field, Bosham, West Sussex
Title Numbers: WSX296288 and WSX300223

Before: Ms Stevens-Hoare sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Chichester County Court
On: Friday 29 February 2008

Applicant Representation:	Mr Stephen Jones (Counsel)
Respondent Representation:	Mr James Meeke, Addison Law

DECISION

KEYWORDS: Adverse Possession – Applications under Schedule 6 of the Land Registration Act 2002 – Procedure – Factual Possession

Cases referred to:
Powell v McFarlane (1977) 38 P&CR 452
J A Pye (Oxford) Ltd  v Grahame (2002) UKHL 30
Lord St Leonards v Ashburner (1870) 21 LT 595 at 596

Introduction
1.	The Respondent is the registered proprietor of the property known as and situated at Windward Windmill Field, Bosham, West Sussex (“Winward”) registered under title number WSX296288. That title was first registered on 9 February 2006.  The Applicants are the registered proprietors of the adjoining property situated at and known as Leaside Windmill Field, Bosham, West Sussex (“Leaside”) registered under title number WSX300223. Windmill Field is a very pleasant private road. In front of each of the houses is an area of grass verge that is fairly deep and level for a verge. There is then a single track tarmac road. On the other side of the road is an area of ground that is well covered with trees and plants.  
2.	The registered title of Winward includes Windmill Field itself and the grass verges in front of all the houses along that track. On 13 June 2006 the Applicants applied under Schedule 6 of the Land Registration Act 2002 (“the Act”) to be registered as the proprietors of the verge immediately outside of Leaside (“the Verge”) thereby removing the Verge from the Respondent’s registered title. 
3.	The Respondent objected to that application and in due course the matter was referred for adjudication.
		
Background – Generally & Evidence
4.	The Applicants purchased Leaside on 17 December 1993. Their vendor let them into possession in about September and they have occupied that property as their home since then. 
5.	The Respondent purchased Winward in 2005. Although her son lived in the original property the Respondent has extensive building works undertaken at Winward and did not move in herself until late December 2006.
6.	I have seen a photograph of the front of Leaside when it was purchased by the Applicants. The Verge appeared to be a open, flat grassed area with one Pear tree planted on it. The Verge runs back to a low wall dividing the front garden of Leaside from the Verge. The wall is completely visible and bare in that photograph. I have also seen more recent photographs of the Verge and other verges along Windmill Field. The Verge stands out in its own right and in comparison to the other verges and has changed completely. The Verge is obviously a cultivated and well cared for area and it presents as an area of garden.  There is now a flower bed around the base of the Pear tree which is located fairly centrally in the Verge. There is a mixed shrub hedgerow along the front of the wall such that the wall is not really visible. There is also a small flowerbed running along the front of the hedgerow. There are two further flower beds with smaller trees one each side of the original tree. The edge of the Verge is marked by a number of stones. 
7.	The Second Applicant is a particularly keen gardener. She gave evidence that she started gardening the front garden including the Verge from the outset. She indicated that by the time they moved into the property the garden and verge had been allowed to become somewhat overgrown.  She began clearing and cutting the grass immediately. Then when the season was right she introduce the flower bed around the Pear tree and planted the hedgerow. That was during the first few months of their occupation at the end of 1993 and January 1994. The first stones marking the edge of the Verge were introduced in June or July 1994. The other flower beds and saplings were not introduced until 2000. 
8.	The Second Applicant explained how, since they have been at Leaside, if anyone was walking over the Verge, particularly with a dog, she would ask them not to. She indicated that it was her understanding others had a right of way in the sense that it would be perfectly permissible for them to step onto the Verge in an emergency to let a vehicle pass but no more. 
9.	The Second Applicant gave evidence that even now, with the plants on the Verge established, she goes out for a short period to tend and tidy the garden including the Verge pretty well every day through most of the year. In the initial period she spent a great deal of time in the front garden where she could oversee the Verge and working on the Verge itself. 
10.	The Second Applicant was absolutely clear that she and her husband understood the Verges to be theirs and would not have put so much work into it if they had not. She indicated that the solicitors who acted for them on their purchase said the position with respect to the verges was not clear and they should ask the vendor. It was suggested to her that it was clear from the deeds that the Verge was not part of their title and she always knew that. The deeds to Leaside do not refer to the verges as a distinct feature and the plan attached does not show them. The deeds include a right of way over the “roadway” and the plan shows a strip of land that could be the roadway including the verges or not. The Second Applicant’s evidence was that they were told by their vendor and by the Respondent’s predecessor in title that the Verge formed part of Leaside. Indeed the Second Applicant indicated that it was the general understanding of the neighbours that the verges belongs to the properties they were in front of.
11.	The Respondent indicated that she regularly saw the Second Applicant out tending the Verge when she visited Winward in the first year of ownership. She also described a number of confrontations between the parties over the removal and replacing of the stones and the like. She accepted that although she removed the stones from time to time until May 2006 the Applicants always put them back. The Respondent indicated that since 2006 she has made a point of walking across the Verge but accepted that she only does that because there is a dispute and she wishes to demonstrate ownership. She accepted that the layout of the Verge is such that one is force to take a very unreal route and it was clear no one would walk on it unless they were wanting to make a point.
12.	The Respondent called Mr Cluff whose mother in law owned the Winward before the Respondent and who lived next door to Winward with his wife since the 1970s. He accepted although his wife and brother in law dealt with the property on their mother’s death he did not have any cause to pay particular attention. He confirmed that he would notice the Applicants out cutting grass and keeping the Verge tidy from time to time. He confirmed the introduction of the flower beds, stones and flowering shrubs but was not confident about dating their arrival, he thought about 10 years ago. He accepted that you couldn’t really get a car on the Verge but suggested you could walk across it without difficulty and he had done so for 30 years but not with his wife. That suggestion did not appear in his witness statement which was only made the day before the hearing. 

Background - Procedure
13.	The Applicants made their application on an ADV1 which was accompanied by statutory declarations. The form was completed to indicate that the application was made under Schedule 6 paragraph 1 of the Act not paragraph 6(1). Further in response to question 12 which asks “if applying under paragraph 1 please confirm which, if any, of the following conditions you intend to rely on” and they indicated paragraph 5(4). 
14.	The Respondent objected using a NAP. In response to the invitation to “Place X in the appropriate box(es)” the Respondent completed the “I object to the registration on the grounds set out in panel 6” box but did not complete the “I require the registrar to deal with the application under Schedule 6, paragraph 5....” box. 
15.	Following the referral of this matter the parties produced statements of case as ordered. The Respondent’s statement of case challenged whether the acts relied upon by the Applicants amounted to factual possession and took the point that the Applicants could not rely on the condition in paragraph 5(4) of Schedule 6 because the Verge had not been registered land for 12 months before the application. The Applicant put in a further Statement of Case relying on s15 of the Limitation Act 1980 alleging that the registration of the Respondent was a mistake susceptible to alteration under Schedule 4 on the basis that the paper title had been extinguished by adverse possession before it was registered and seeking to rely on paragraph 5(2) in the alternative. The Respondent put in a Statement of Case objecting to the introduction of “a new claim that is not covered by their original application”.
Preliminary Issue – Procedure
16.	I was asked to decide as a preliminary issue, before hearing evidence, what arguments the parties were at liberty to advance. As requested I gave the parties an immediate decision at the hearing of this matter on the basis I would record that decision and the reasons in my final judgment. 
17.	Schedule 6 paragraph 1 provides “A person may apply.....if he has been in adverse possession.... for the period of ten years ending on the date of the application.” Paragraph 2 imposes an obligation on the registrar to give notice. Paragraph 3 provides that “A person given notice under paragraph 2 may require that the application.....be dealt with under paragraph 5...” and that “the right under this paragraph is exercisable by notice to the registrar given before the end of such period as the rules may provide.” Paragraph 4 then provides that if an application under paragraph 1 is not required to be dealt with under paragraph 5, the application is entitled to be entered in the register. Paragraph 5 contains three separate conditions the satisfaction of which results in registration. The paragraph starts with the words “If an application under paragraph 1 is required to be dealt with under paragraph 5, “the applicant is only entitled to be registered ....if any of the following conditions is met.”
18.	Someone is entitled to apply under Schedule 6 if they can establish 10 years adverse possession. The need to satisfy a condition from paragraph 5 of Schedule 6 only arises if an objector makes a requirement that paragraph 5 be engaged. The statute provides that the right to make that requirement is exercised by giving notice within such time as the Rules require. It follows, so far as the statutory provisions are concerned if an application is made by someone under paragraph 1 of Schedule 6 and someone objects but does not give notice requiring the matter to be dealt with under paragraph 5, provided the applicant can establish they qualify under paragraph 1 as being someone who has been in adverse possession for 10 years they will be entitled to be registered. 
19.	Rule 188 of the Land Registry Rules 2003 (“the Rules”) provides that applications under Schedule 6 must be made on an ADV1 supported by a statutory declaration. Rule 188(2)(g) provides that the Statutory Declaration must contain the facts that would support any conditions under paragraph 5 which it is intended to rely upon if notice is given requiring the matter to be dealt with under paragraph 5. There is no requirement in the Rules that the Applicant indicate in the ADV1 which conditions reliance will be placed on. Although the question about the Applicant’s intention in the event a requirement is made for paragraph 5 to be engaged actually appears on the prescribed form the Act and the Rules do not require the Applicant to make an election as to the three conditions the obligation under Rule 188 is confined to the intended reliance.
20.	The Applicant indicated an intention to rely on the third condition in paragraph 5 and not either of the other conditions. The third condition is problematic for the Applicant if she is forced to rely on it in isolation because the disputed land has to have been registered for more than one year prior to the date of the application. The Respondent makes the very valid point that this jurisdiction is a creature of statute and on a referral under s73 of the Act as defined by the application and objection that have not been disposed of by agreement or the objection being groundless. 
21.	Unfortunately for the Respondent that very same point can be made about to the Respondent’s case. The Respondent did not give the Registrar notice that she required this matter to be dealt with under paragraph 5. It was suggested that the indication in the NAP that the Respondent objected on the grounds in panel 6 operated by implication to engage paragraph 5. I reject that suggestion. Schedule 6 paragraph 3 is explicit about the need to make a requirement and to do so by giving notice to the registrar in a specified time frame. The prescribed form has a specific objection that uses the language of requiring the registrar to deal with the application under paragraph 5 and the form allows that to be ticked in addition to the generic objection that the Respondent did tick. In any event the Respondent did not in her stated grounds make any reference to paragraph 5, any of the conditions, the fact that land had not been registered for 1 year or any other fact that related to paragraph 5 as opposed to the general challenge to the Applicants’ assertion they had been in adverse possession. 
22.	I concluded that the Respondent having failed to make any requirement that the matter be dealt with under paragraph 5 the Applicants were entitled to be registered under paragraph 4 provided they fell within paragraph 1. In other words the only issue was whether the Applicants had been in adverse possession for 10 years because the Respondent is not entitled to make an requirement under paragraph 3 of Schedule 5 post referral. 
23.	If I am wrong about that conclusion and paragraph 5 has been engaged, I concluded that since neither the Act nor the Rules impose any obligation on an applicant to give notice of the condition under paragraph 5 they are in fact relying on, notwithstanding the requirement to set out in the statutory declaration facts it is intended to rely on if paragraph 5 is engaged, an applicant would not be limited to those facts in the event paragraph 5 was subsequently engaged. Further I note that paragraph 5 contains no reference to any application or statement or giving of notice relating to the conditions by the applicant. Rather it provides that if the respondent has made the necessary requirement the applicant can only succeed if one of the conditions is met. In those circumstances it is open to me to conclude having heard the evidence that any one of the conditions has in fact been satisfied and therefore the applicant is entitled to be registered.

Adverse Possession – the Law
24.	The parties both referred me to the classic statements as to the requirements for adverse possession in relation to factual possession and the squatter’s intention to be found in J A Pye (Oxford) Ltd v Graham and in Powell v McFarlane.  The particular nature of the land involved and the manner in which is might usually be enjoyed is a relevant factor in assessing whether the squatter’s activities involve sufficient exclusivity and physical control to amount to possession. 
25.	Although it is right to say that enclosure provides strong evidence of the necessary physical control, the absence of enclosure is not a bar to adverse possession. The simple cutting of grass, something that could be consistent with rights other than ownership does not generally amount to possession however the planting of trees and the like is generally cogent evidence of possession: Lord St Leonards v Ashburner. Similarly cultivation of land as a garden or for crops involving breaking the surface and planting will generally be sufficient; Powell v McFarlane.

Decision
26.	Having seen her giving evidence I found the Second Applicant to be a truthful witness. It was apparent from her own account of herself she is a somewhat obsessive gardener and very particular about everything being just so. I formed a view that she is someone who is very clear about what she wants and thinks and who has no difficulty communicating that clearly and forcefully to others. 
27.	It was very telling that although the Respondent was not living at the Winward in the first year of her ownership and was just visiting, albeit regularly, the Respondent saw the Second Respondent tending the Verge often enough to have formed the view she was out there regularly. I have no doubt that the Second Applicant decided at a very early stage that she was going to have a verge that would be seen  and she could be proud of. She has devoted a great deal of time and effort to achieving that. The effect of the Second Applicant’s activity is that the Verge is clearly delineated and its presents as a cultivated area, an addition but nevertheless part of the garden of Leaside. Further the Second Applicant’s activities result in the Verge not being usable by vehicles and it being clear to pedestrians that they are expected not to use it and its usefulness as a grass verge to walk on has been effectively removed. It is also clear from the Respondent’s evidence that the Applicants have a surprisingly high degree of physical presence on the Verge or overseeing it from their front garden.
28.	Although I accept Mr Cluff was here to tell the truth and assist the Court regrettably he could give little assistance and the apparent suggestion that he has been regularly walking across the Verge for the last 30 years did not have the ring of truth but came out more as an afterthought. It may well be there was a time before the Second Applicant took over the Verge, when he would walk across it but I do not accept, particularly in light of the Respondent’s candid acceptance of the reality that he continues to use the Verge regularly as he suggests. Indeed if he made such use of the Verge I have absolutely no doubt he would have been challenged by the Second Applicant long before now and if he had not desisted there would have been some sort of confrontation.
29.	Further I accept the Second Applicant’s evidence that at the time of the purchase the Applicants were not advised the Verge was outside their title but that it was unclear and so having spoken to their vendor they understood that it was part of their premises. I also accept that the Respondent’s predecessor, being altogether more relaxed and content to let the Second Applicant do as she wished with the Verge as Mr Cluff told me, may well have had conversations with the Applicants that they interrupted as confirmation of their understanding as to ownership. 
30.	Having regard to the fact that the Verge is a verge the Second Applicant has done all that an owner could or might do with a verge and more. Indeed it is hard to see what else the Applicant could have done that would have gone further in exerted exclusive control over the Verge aside from enclosing it which would not have been an option given the need for some visibility and a place for people to step aside when cars are coming through. Further it is clear that the Applicants believed the Verge was part of their property and intended to occupy and use it as such at all times since they moved in.
31.	In those circumstances I conclude the Applicants had been in adverse possession of the Verge for at least 10 years prior to the making of this application and it should therefore be allowed.
32.	Further I have concluded the Applicants had in fact been in adverse possession of the Verge for 12 years by the time the Respondent’s paper title to the Verge was registered. It follows that to that extent the Respondent’s registered title is incorrect and susceptible to rectification under Schedule 4 of the Act. Since the Respondent is not currently in possession of the Verge any application for alteration of the register would, in my view, succeed. However that is not the application before me. 
33.	The application I am dealing with under Schedule 6. If my preliminary decision was incorrect and paragraph 5 of Schedule 6 is engaged I must consider whether the Applicants have satisfied one of the conditions. It was effectively and correctly conceded that they cannot rely on the third condition because although the Verge was now registered over a year ago it was not as of the date of the application which is the relevant point of reference for paragraph 5(4)(d). However, having concluded that I am permitted to consider whether any of the conditions are satisfied I have considered whether any other condition applies. The second condition is whether the Applicants are entitled to be registered for some other reason. Having been in adverse possession for over 12 years while the Verge was unregistered with the result that the paper title was extinguished, aside from any entitlement under the Schedule 6 regime they are entitled and could have applied to alter the register pursuant to Schedule 4 and for first registration in their own name on the basis of 12 years adverse possession of unregistered land. I have conclude they are entitled to be registered for some other reason namely 12 years adverse possession of unregistered land rather than 10 years adverse possession of registered land and the satisfaction of a condition. 
34.	Since the Applicants have been successful in this matter subject to any submissions, if the Applicants apply for costs, I would be minded to order that the Respondent pay the Applicants’ costs to be assessed. If the Applicants wish to apply for costs an application supported by a schedule of costs should be sent to the Respondent and the Adjudicator’s office within 28 days of this judgement. In the event of such an application being made the Respondent should send any submissions relating to the whether an order for costs should be made and in what sum to the Applicants and the Adjudicator’s office within 28 days of receipt of the Applicants application for costs.

Dated this 25th day of March 2008

By Order of The Adjudicator to HM Land Registry