REF/2007/1276

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
 RONALD CECIL DICKENSON
DOROTHY MAY DICKENSON

APPLICANTS

and

LONGHURST HOMES LIMITED

RESPONDENT

Property Address:  Land adjoining 5 Walkers Way, Barrowby, Grantham
Title Number: LL274769 and LL112710

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Procession House
On: 28 July 2008

Applicant’s representation:  The first Applicant in person
Respondent’s representation:  Counsel

 DECISION

Adverse possession.  Application under schedule 6 of the Land Registration Act 2002.  Failure clearly to require in form NAP that the matter is dealt with under paragraph 5 of that schedule precludes the paper owner from seeking to rely on paragraph 5 thereafter.  Applicants went into possession of land adjoining their home, which they owned.  They then sold their home and took a leaseback as tenants.  Held, applying London Borough of Tower Hamlets v Barrett, [2006] 1 P&CR 9, that the applicants’ occupation was thereafter as an accretion to their tenancy, and that if anybody was entitled to apply to be registered with a possessory freehold title, it was the applicants’ landlord.  
1.	I shall direct the Chief Land Registrar to cancel the application of the Applicants dated 16 October 2006.  In essence, the reason for this is that, although I have substantially accepted the evidence of Mr. Dickenson, I have concluded that if anybody has acquired a possessory title, it is the registered proprietor of his home at 5 Walkers Way.  I would also add that, had the Respondent properly completed form NAP, the application would have been bound to fail, whoever brought it, and any new application would be likely to fail if any new form NAP, in response to such an application, is properly completed.

2.	The Applicants have lived at 5 Walkers Way (formerly known as 25, The Drift) since 1956.  At first they were tenants of the local authority, but in 1981 they purchased the property from the local authority and were registered at the Land Registry with title absolute.  They remained the owners of the property until September 1995, when they transferred it to their daughter, Judith Hall, who immediately granted a tenancy back to them of the property for the lifetime of them and the survivor of them or until they gave notice that they no longer wished to live there.

3.	I accept the evidence of Mr. Dickenson which he gave at the hearing, and the following findings of fact are based upon that evidence, and upon the documentation produced to me both by him and by the Respondent (Longhurst).  

4.	When the Dickensons moved in their home in 1956, it was part of a development built in about 1946.  Theirs was one of four houses facing away from The Drift and towards an open field.  Their front gardens faced towards the field.  Between the front gardens and the field was a strip of land.  A path was laid along that part of that strip closest to the front gardens, and access to the front gardens and the front doors of those houses was obtained by coming up a path from The Drift along the side of the most northerly of the houses and then turning south along the path running between the front gardens and the field.  The land between that path and the field was waste land.  The Dickensons’ house was the second house in the row coming down that path, so that the two houses to the south of it had a right of way over the path in front of the Dickensons’ house to go to and from the highway.

5.	The Dickensons never sought to obstruct that access, but, like their neighbours, they cleared the waste land beyond the path and laid it to grass.  Each neighbour looked after the strip of land in front of their house in the same way, but no land was in any way fenced off, and beyond keeping it tidy, the land was not used or occupied.  The Dickensons, however, in a sense, regarded the land in front of their home as their land.  They obtained access to it from their front gate, which opened directly on to it.

6.	In June 1992, all the land surrounding the Dickensons’ home was transferred by the local authority to Longhurst, which redeveloped it in the course of 1992.  The land transferred included the land between the Dickensons’ home and the field (the disputed land).  As a result of the redevelopment, the disputed land was fenced in on three sides, and no longer provided access to any other land.  The only open boundary was the southern boundary, and at some date prior to 29 January 1993 Mr. Dickenson erected a fence with a gate on that boundary enclosing the land completely.  The gate was padlocked and only the Dickensons had the keys to the padlock.  The Dickensons continued to tend the grass, and to have access to the disputed land both from their old garden gate and from the new gate in the new fence that they had erected.  In addition, in or about early 1993, they replaced the post and wire fence separating the disputed land from the field with a more solid fence.

7.	Longhurst has sought to contend that a letter written in 1995 by a Mrs. Mason demonstrated that the disputed land had not yet been fenced in by the Dickensons.  Mr. Dickenson has explained that that letter related to other land on or by Walkers Way.  I can find nothing in the letter to indicate that it referred to the disputed land, and I accept Mr. Dickenson’s evidence.

8.	As part of the new development, the Dickensons were provided with a new access to their home with and without vehicles along the newly constructed Walkers Way to the south and from there, on foot only, by a path to the disputed land, and across the path on that land to their front gate.  They were also given access on foot only along a path running behind their house from Walkers Way to another highway. This arrangement was formalised by a deed dated 14 January 1993 between themselves and Longhurst by which they gave up their old rights of way that had been closed up and were granted the new ones.  It is clear from the plan annexed to the deed that the right of way, insofar as it was over the disputed land, was only over the path and not the rest of the disputed land.

9.	The Dickensons knew that at that time they did not own the disputed land, and by a letter received by Longhurst on 10 March 1994, Mr. Dickenson wrote to Longhurst asking if he and his wife could buy it.  Longhurst replied that they did not wish to dispose of it.

10.	I am satisfied that nothing done by the Dickensons prior to about January 1993 amounted to the taking of possession of the disputed land.  They did not intend to exclude anybody from it, and nothing that they did before that time could have led anybody to think that they were trying to do so, or wished to do so.  They were simply keeping the land tidy, as were their neighbours for the benefit of their homes.   

11.	I consider that matters changed in January 1993, when the land was completely fenced in and the gate padlocked.  I am satisfied that at that time and from then on, it was the intention of the Dickensons to exclude everybody, including the true owner, insofar as it was within their power to do so.  I therefore consider that the 12 year limitation period, which was then the relevant period, did start to run from that time. 

12.	While the grant of the right of way would have necessarily involved an acknowledgment of title at the time, ownership and possession are not the same, and I do not consider it relevant that the Dickensons may already have taken possession of the land, which they knew was not theirs by the time the deed was executed.  They were never given permission to fence in and occupy the whole of the disputed land or to go onto the grassed area, or to use the path except for access purposes.  I cannot see that the fact that they had a right of way over part of the land could mean that their occupation of the whole of the land in this way was permissive.

13.	However, it is also the case that in writing in March 1994 asking if they could buy the land, the Dickensons acknowledged Longhurst’s title to the disputed land in writing.  This had the effect, under section 29 of the Limitation Act 1980, that Longhurst’s right of action to recover the disputed land is treated as having accrued on that date, so that the 12 year period began to run again from that date, 10 March 1994.

14.	The 12 year rule, however, was ended in relation to registered land by the Land Registration Act 2002.  Section 96 of that Act provides that no period of limitation shall run against, amongst others, a registered proprietor, and that the old rules as to extinguishment of the owner’s title should not apply in such a case.  Instead section 97 of that Act provided that new rules set out in Schedule 6 of the Act should apply.

15.	Schedule 6, paragraph 1 of the Act provides that a person may apply to the registrar to be registered as the proprietor of a registered estate if he has been in adverse possession of the estate for a period of ten years ending on the date of the application.  Under paragraph 11(1) of Schedule 6, for the purposes of that Schedule, a person is in adverse possession of an estate in land if, but for section 96 of that Act, a period of limitation under section 15 of the Limitation Act 1980 would have run in his favour in relation to the estate.  Under paragraph 11(2), a person is also to be regarded for those purposes as being in adverse possession of an estate in land (a) if he is the successor in title to an estate in the land during any period of adverse possession by a predecessor in title to that estate, and (b) during any period of adverse possession by another person, which comes between, and is continuous with, periods of adverse possession of his own. 

16.	The Dickensons did apply under Schedule 6, paragraph 1, on 10 October 2006.  This was more than 10 years after they first 10 March 1994, so that, subject to one matter to which I shall return, they satisfied the 10 year rule.  The standard form ADV1, on which the application was made, includes section 12, which asks the applicant to confirm which, if any, of the conditions set out in Schedule 6, paragraphs 5(2) to 5(4) the applicant intended to rely on.  The Dickensons indicated that they would rely on paragraph 5(4).  

17.	Paragraph 5 provides as follows:

(1)	If an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the following conditions is met.
(2)	.......
(3)	.......
(4)	The third condition is that –
.............
(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him.
..............

18.	Given that the Dickensons had sought to buy the disputed land in 1994, and had been granted a right of way over it in 1993, it is plain that they knew that legally the land did not belong to them.  They may have thought of the land as theirs, having used it for so long and enclosed it for 12 years, but that is not enough.

19.	The registrar then gave notice of the application to Longhurst pursuant to paragraph 2 of Schedule 6.  Paragraph 3(1) of Schedule 6 provides as follows:

(1)	A person given notice under paragraph 2 may require that the application to which the notice relates be dealt with under paragraph 5.
(2)	The right under this paragraph is exercisable by notice to the registrar given before the end of such period as rules may provide.

20.	Paragraph 4 of Schedule 6 then goes on to provide that if an application under paragraph 1 is not required to be dealt with under paragraph 5, the applicant is entitled to be entered in the register as the new proprietor of the estate.  That must, of course, be subject to his establishing that he has been in adverse possession of the estate for the period of ten years.

21.	Rule 189 of the Land Registration Rules 2003 provides that the period for the purposes of paragraph 3(2) of Schedule 6 is the period ending at 12 noon on the sixty-fifth business day after the date of issue of the notice.  Rule 190(1) provides:

“A notice to the registrar under paragraph 3(2) of Schedule 6 to the Act from a person given a registrar’s notice must be –
(a)	in form NAP, and 
(b)	given to the registrar in the manner and at the address stated in the registrar’s notice.” 

22.	Section 5 of form NAP states “Place “X” in the appropriate box or boxes.  There are three boxes.  The first consents to the application.  The second states, “I require the registrar to deal with the application under schedule 6, paragraph 5, to the Land Registration Act 2002.  The third states “I object to the registration on the grounds stated in panel 6”.  Longhurst, or those acting for it, did not place a cross in the second box, but only in the third box.  In box 6 they referred to an attached witness statement for the grounds of objection.

23.	The witness statement, by a solicitor acting for Longhurst, deals with the conveyancing history, including the 1993 deed granting the new rights of way and asserted in paragraph 7 that the Applicants had always had permission to use the land and that there was a footpath over it.

24.	Had Longhurst placed a cross in the box in the box requiring the registrar to deal with the matter under paragraph 5, the registrar would have been bound to refuse the Dickensons’ application or I would have been bound to direct him to do so.  I am unable to find anything even in the witness statement that requires the registrar to deal with the matter under paragraph 5, and in any event, in relation to the witness statement, I doubt whether a requirement in the witness statement not accompanied by a cross in the second box in form NAP, would be in form NAP and in the manner provided in the registrar’s notice.

25.	As a result of Longhurst’s failure so to require within the time provided, they cannot rely on the provisions of paragraph 5 in relation to this application.

26.	This leaves one outstanding question.  When the Dickensons first fenced in and took possession of the disputed land, they were owners of their home.  This was still the case in March 1994, when time started to run afresh.  However, in 1995 they transferred the title to their home to their daughter and became her tenants.  I accept the evidence of Mr. Dickenson as to why this happened.  A relative had had to go into care, and the local authority had exercised its powers to take a charge over the relative’s home to sell it in order to pay for the costs of the care home.  The Dickensons did not want that to happen to their home.  To avoid it, as they hoped, they transferred it at that time to their daughter.  For completeness, I note that there have subsequently been differences between them and their daughter, that the daughter has transferred the property into the joint names of herself and her husband and that there are now said to be divorce proceedings on foot between her and her husband as to which there is no further evidence.

27.	The question which I have to address is as to whether the Dickensons have been in possession of the land since 1995 as an addition, in effect, to the tenancy, or separately in their own right.   If it was occupied on behalf of their landlord as an addition to their tenancy, then the question would arise whether any period of limitation under section 15 of the Limitation Act 1980 could have run in their favour in relation to the freehold estate (cf paragraph 11(1) of Schedule 6 to the 2002 Act).  If they occupied the land independently of the tenancy, then in my judgment, the period of limitation would have run in their favour.

28.	Counsel for Longhurst has contended, relying on Smirk v Lyndale Developments Ltd., [1975] Ch 317 and London Borough of Tower Hamlets v Barrett, [2006] 1 P & CR 9, that any possession of the disputed land by the Dickensons was presumed to add to the demised premises rather than to give the tenant a freehold interest in the adjoining land.  Accordingly, it is said, even if the Dickensons would have been entitled to be Unsurprisingly, Mr. Dickenson was not in a position to assist on this point, which is further complicated by the fact that those cases were under the pre-2003 law as to adverse possession.

29.	Smirk v Lyndale Developments Ltd. was a case concerned with unregistered land, where the tenant had occupied adjoining land owned by the landlord, not, as here, land owned by a third party.  Further, he had done so after the commencement of his tenancy, and not, as in the present case, while he was the legal owner of the land so occupied.  Pennycuick VC held, so far as relevant here, in a judgment which was approved on this point by the Court of Appeal, that the tenant had been occupying the additional land as an addition to his tenancy.  Having reviewed earlier cases, he concluded that there was a rebuttable presumption of fact that the tenant was occupying the additional land in addition to the land comprised in his tenancy, and not otherwise adversely to the landlord (see at p.332H).

30.	Tower Hamlets v. Barrett was concerned with registered land, but the possessory title was alleged to have been acquired by 2002, before the Land Registration Act 2002 came into force.  The Barretts were the freehold owners of a public house.  They claimed title to an adjacent area by way of defence to a possession action brought by the local authority.  The land appears to have been registered in the name of the GLC, but the council was its statutory successor in title.  The Barretts had previously been tenants of Trumans, and their occupation of the additional land had begun while they were tenants and the full period of 12 years had expired before they had purchased the pub from Trumans.  The Court of Appeal concluded that there was a rebuttable presumption that a tenant acquires possessory title for his landlord, provided that the relevant land is close to, and occupied with, the land demised under the tenancy.  There was further held to be a presumption that where the adjoining land remained included in the tenancy, and the landlord and the tenant thereafter agreed a sale of the reversion or the grant of a new tenancy, there is a presumption that the sale or the new tenancy should extend to the adjoining land.

31.	In Tower Hamlets v Barrett, at paragraph 111, Neuberger LJ said that it appeared to him that on the sale of a reversion to the land originally comprised in a tenancy, one should presume, or at least be relatively ready to accept, that the possessory title is included in the sale.

32.	In the present case, there was no possessory title to be transferred in 1995, but it does not seem to me that there was any intention on the part of the Dickensons to treat the disputed land any differently from their registered property which was being transferred.  They regarded it as an adjunct to their home and I consider that from then on they occupied it on that basis as an addition to the land that they were renting.  I can see nothing in the evidence to suggest that, at the time of that transfer, they had any intention of treating it in any other way.  Nor is there any evidence that at any stage they indicated to their daughter that they were holding it on any other basis.

33.	I can see no basis on which they could have reasonably have intended to retain, separately from their home, occupation of a small strip of land at the back which was enjoyed, and for all practical purposes could only be enjoyed, by them as an addition to that home.  I therefore conclude that, but for the effect of section 96 of the Land Registration Act 2002, their occupation was as an addition to the tenancy and that the period of limitation was not running in their favour in relation to the freehold estate, but in favour of the freehold owner of their home from time to time (King v Smith, [1950] 1 All ER 553, at 557 per Cohen LJ).  

34.	On that ground, it appears to me that the Dickensons’ application to be registered as freehold owners must fail.  It is unnecessary for me to decide what rights the freehold owner might have to be registered.  It is unlikely that, if they were to apply, Longhurst would repeat the mistake made on this occasion in failing to require that the matter be dealt with under paragraph 5 of Schedule 6 to the 2002 Act.  Longhurst has been saved from the consequences of that failure, so far as the present application is concerned only because the Dickensons had given their legal title to their daughter and were only tenants of their home.

Costs
35.	Longhurst has applied for its costs in the event that it is successful, and I have been supplied with a costs schedule going back to a date prior to 31 January 2007.  I can only deal with costs from the date of the reference, which was received on 5 October 2007.  Longhurst may wish to consider if it wishes to pursue this claim at all against very elderly applicants who are hardly to be expected to be aware of the problems arising from their tenancy, which do not seem to have been expressly referred to in Longhurst’s Statement of Case or explained to the Dickensons, but appear to have been spelled out for the first time in counsel’s skeleton argument.  Longhurst may also wish to consider whether any award could ever be enforced against pensioners who, 13 years ago, transferred what may well have been their only asset to their daughter.

36.	If Longhurst wishes to pursue this claim, a fresh schedule must be provided by 31 August 2008, limited to the period from 5 October 2007.  They should also include a brief statement relating to the proportionality of the costs incurred, and explaining any detailed work undertaken, bearing in mind that most of the work appears to have been done in preparing the witness statement which accompanied form NAP.  They may also wish to explain the employment of no fewer than 7 members of staff on this case, although I appreciate that this number may decrease once work before 5 October 2007 is excluded.

Dated this 31st day of July 2008

By Order of The Adjudicator to HM Land Registry