REF/2008/1668 and 1669

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
PARKLANG LIMITED

 APPLICANT

and

1.	MANCHESTER CITY COUNCIL
2.	SUNIL MOHINDRA AND MEERA MOHINDRA

RESPONDENT

Property Address:  Former passageway and land near the rear of 126/128 and 130 Wilmslow Road Rusholme Manchester
Title Number:  MAN122663  
 
Made by: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry
 
___________________________________________________________________________

ORDER

UPON hearing counsel for the Applicant and the First Respondent and the solicitor for the Second Respondents and for Elf Trading Limited
AND UPON the Second Respondents withdrawing their application
AND UPON the Applicant stating that it intends to apply to the Land Registry for a possessory title to the above property under Schedule 6 to the Land Registration Act 2002 with a view to that application being referred to the Adjudicator to be dealt with together with this application

IT IS ORDERED as follows:

1.	The application of the First Respondent for summary judgment for the Applicant’s application to be summarily dismissed is itself dismissed.
2.	Elf Trading Limited is joined as Third Respondent to the application.
3.	Service of the Applicant’s Statement of Case on the Third Respondent is dispensed with.
4.	The Respondents are to file and serve their Statements of Case by 29 January 2010 to include their Statements of Case in respect of the Applicant’s claim under Schedule 6 to the Land Registration Act 2002 if that application has been referred to the Adjudicator and the Applicant has filed and served an amended Statement of Case by 8 January 2010 covering the further reference.
5.	The Respondents are to pay the Applicant’s costs of the Respondents’ applications to be assessed on the standard basis.
6.	The Applicant is to file and serve on the Respondents by 11 November 2009 the further agreed information in respect of the costs schedule already filed and served by it.
7.	The Respondents are to file and serve their objections to the Applicant’s schedule of costs and further information by 25 November 2009.
8.	The Applicant is to file and serve any reply to those objections by 2 December 2009.
9.	The Adjudicator will then assess the costs ordered to be paid.

Reasons

1.	In this case, the Applicant has claimed to be entitled to be registered with a possessory title to the disputed land under paragraph 18 to Schedule 12 to the Land Registration Act 2002.  The First Respondent is the registered proprietor of part of the disputed land, and the Second Respondents are the registered proprietors of the other part.  It is said that the Applicant and its predecessor in title have been in occupation of the disputed land since 1986.  Although a number of points were originally raised as to why the Applicant’s claim was bound to fail, supported by two lever arch files of documents, the only point raised at the hearing before me was that the Applicant’s predecessor acknowledged the title of the First Applicant, the Council, to that part registered in its name in a transfer of other land dated 22 July 1994 (“the 1994 transfer”).

2.	If that contention were correct, time could only start to run against the First Respondent from the date of the acknowledgement (Limitation Act 1980, s.29(2)(a)).  No possessory title could then have been acquired prior to the coming into force of the Land Registration Act 2002, and any claim to a possessory title could only arise under Schedule 6 to that Act.

3.	In 1994, the Applicant’s predecessor in title, Abdul Latif, owned 122-124 and 126-128 Wilmslow Road, Rusholme.  The Council owned adjoining land to the rear of those properties, then registered at the Land Registry under title LA 3555569.  That land included its part of the disputed land, together with additional land and buildings.  According to the Applicant’s evidence, Mr. Latif had obtained planning permission to develop that part of the disputed land and part of the adjoining land and had built on it and that adjoining land up to first floor level in about 1992.

4.	The 1994 transfer was of part of title LA 3555569 between that development and Clareholme Road, Rusholme.  It included a covenant by Mr. Latif with the Council “so as to benefit the remainder of the land comprised in the above mentioned title (“the retained land”) … 3. To demolish the existing premises on the [property transferred] and develop the land to form part of the site of the Transferees adjoining premises numbered 126 and 128 Wilmslow Road, Rusholme.”  The transfer was signed by Mr. Latif.

5.	It is said by the Council that by giving this covenant Mr. Latif acknowledged that the remainder of title LA 3555569 other than the land transferred was the property of the Council and that this was an acknowledgement of title for the purpose of section 29(2)(a) of the Limitation Act 1980.  It is pointed out by the Applicant, however, that in fact the land transferred did not directly adjoin 126 and 128 Wilmslow Road, but only the development which Mr. Latif had commenced on the part of title LA 3555569 adjoining the land transferred by the 1994 transfer.  It could only be developed to form “part of the site of the Transferees adjoining premises numbered 126 and 128 Wilmslow Road” if the parties were proceeding on the assumption that the adjoining developed land was part of those premises.

6.	A further curiosity is that by a transfer the following year, the Council transferred to Mr. Latif (without any further covenants) part of the land so built on by Mr. Latif, leaving unsold the other part of the land on which he had built, now the disputed land.  There is presently no evidence and no disclosure as to the circumstances in which this transfer took place.

7.	Whether or not a document amounts to an acknowledgement of title depends on the true construction of the document in all the surrounding circumstances (Allen v Matthews, [2007] 2 P. & C.R. 441, at p.454, CA).  It appears to me that it is at least arguable that in the 1994 transfer the parties were proceeding in the belief that the land on which Mr. Latif had built was not part of title LA 3555569, but was part of 126-128 Wilmslow Road.  Indeed, at present, in the absence of any other explanation, I have difficulty in seeing why the Council should have sold the land transferred by the 1994 transfer to be developed to form part of the site of Mr. Latif’s adjoining premises unless that was the case.  It is also difficult to see why it should have sold that land without any reference to Mr. Latif’s building on its adjacent land if it regarded that land as its own, or why Mr. Latif would have built on it if he did not think the land was his.  Finally, it is difficult to understand why, in 1995, the Council should have sold Mr. Latif part of the land on which he had already built without reference to the rest of the land unless both thought at that stage that he already owned the disputed land.

8.	While it may well be that a covenant of the type relied on by the Council can amount to an acknowledgement of title, it is far from clear that it is such an acknowledgment in the present case.  Rather it may well be that, properly construed in the light of all the surrounding circumstances, the 1994 transfer was entered into by both parties on the basis that they regarded the land in the 1995 transfer and the disputed land as already being owned by Mr. Latif and as not being comprised in title LA 3555569.  On that basis, I am unable to see how the covenant could reasonably have been taken as an acknowledgement by Mr. Latif of the Council’s title to the land.  For that reason, the Council’s claim that the Applicant’s application should be summarily disposed of must fail.   

9.	The Applicant has sought to pursue a further claim under schedule 6 to the 2002 Act.  However, it has never made an application under that schedule.  Paragraph 15 of that schedule provides that rules may make provision about the procedure to be followed pursuant to an application under that schedule.  Rule 188 of the Land Registration Rules 2003 provides that such an application must be in form ADV1 and be accompanied by a statutory declaration complying with the requirements of that rule.  That has not happened here.  Schedule 6 provides a new method of obtaining a possessory title to registered land which does not depend on the provisions of the Limitation Act 1980.  The Land Registration Rules provide the procedure for this, including provision for objections under which an objector can require the application to be dealt with under paragraph 5 of schedule 6.  Those provisions require that the objections must be in form NAP (rule 190) and that the requirement that the application is to be dealt with under paragraph 5 of schedule 6 must be given within the time limit specified in rule 189.  There is no power to extend that rule.

10.	It appears to me, despite the contentions of counsel for the Applicant to the contrary, that the matter that has been referred to the Adjudicator cannot include a claim to a possessory title under schedule 6, or that if it is included in the reference, then it must fail because there is no entitlement without an application in the appropriate form.

11.	It would plainly be unsatisfactory if this case proceeded only on the basis of a claim under the transitional provisions in schedule 12 to the Act when, if that claim failed because 12 years relevant possession before October 2003 could not be shown, there would then have to be a further reference to determine whether a claim under paragraph 6 could succeed.  This can be avoided if an applicant claims a title both under the transitional provisions and under schedule 6 by the appropriate procedures, and if both claims are objected to, then both can be referred together to the Adjudicator.

12.	It can be avoided in the present case by the Applicant making a further application now to the Land Registry under schedule 6 in the appropriate form, and by the Respondents promptly completing form NAP and the matter being referred to the Adjudicator so that it can be dealt with together with the present application.

13.	The Council has referred me to paragraph 2.2 of the August 2009 Land Registry Practice Guide in relation adverse possession of registered land, where it is stated that if applications are made both under the transitional provisions and under the new procedure, the Land Registry will ask for confirmation as to which application should proceed first.  This may well be sensible when the applications are first made, as a lack of opposition to one claim may make it unnecessary to proceed with the other.  However, there is no suggestion in the Practice Guide that both applications cannot be initiated at the same time, and where there is a dispute which involves both and which needs to be referred to the Adjudicator, it would be contrary both to ordinary principles of litigation and to the principle of dealing justly with applications so as inter alia to save time and expense to insist that only one application can be referred to the Adjudicator and the other cannot even be proceeded with until after the first has been finally resolved.  Such an approach would be unnecessarily costly, and would sterilise the disputed land for an unnecessary length of time, possibly to the disadvantage of all parties to the dispute.

14.	I do not understand that to be the approach of the Land Registry, and I would expect that, once the Applicant puts forward his claim under schedule 6, and explains the circumstances, that the Land Registry will process that application, as it is required to do by paragraph 2 of schedule 6.

15.	Finally, the solicitor for Elf Trading Limited asks that that company be added as a Respondent.  It is clear that it did object to the application, and it appears to have been omitted from the list of Respondents in error.  Counsel for the Applicant has objected on the ground that it had no interest in any part of the disputed property, a contention that is disputed on its behalf.  It is unnecessary to resolve that issue.  Anybody may object to this application under the 2003 Act whether they have an interest in the property or not.  Whether there is any point in Elf Trading Limited being added is unclear, as its shareholders are, I understand, the Second Respondents, and it may be that if additional costs are incurred as a result of its addition as a Respondent, that is a factor that can be taken into account in deciding what order to make as to costs at the end of the day.

Dated this 30th day of October 2009

By Order of The Adjudicator to HM Land Registry