REF/2008/0528

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
LEWIS WYN DAVIES

 APPLICANT

and

JOHN WOOD PROPERTY PLC

RESPONDENT

Property Address:  Land and buildings at Pentre Falyn, Llangoed, Beaumaris, Isle of Anglesey
Title Numbers:  CYM364444
 
Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at:  Llangefni Magistrates Court
On: 26 November 2009

Applicant Representation:  In person
Respondent Representation: William Hanbury, counsel
___________________________________________________________________________

DECISION

 Application for adverse possession made under Schedule 6 but determined also on the basis that the Applicant had acquired a possessory title prior to the coming into force of the Land Registration Act 2002 and prior to the first registration of any title to the land.  On facts, the Respondent is found to be unable to rely on paragraph 2(b) of Schedule 3 to the Land Registration Act 2002.  Quaere how section 29 of the Land Registration Act 2002 and Schedule 3 to that Act ought to be construed and given effect to insofar as they purport to remove previously acquired property rights.  The existence of a public right of way to a telephone kiosk on the land does not preclude the acquisition of a possessory title to the land subject to that right of way (R (on the application of Smith) v Land Registry (Peterborough Office), [2009] EWHC 328 (Admin) distinguished;  Haigh v West, [1893] 2QB 19 applied).

1.	For the reasons given below, I shall direct the Chief Land Registrar to give effect to the application of the Applicant dated 17 September 2007 but to note on the register that the Applicant’s title is subject to such rights as may be possessed by the owners for the time being of the telephone kiosk situated on the land and the telegraph pole erected in one corner of it, and of any rights of access to the kiosk and pole across the disputed land. 

2.	 This dispute concerns a relatively small piece of land bordering a countryside road to the north of Llangoed in Anglesey.  I inspected the site on the day before the hearing.  A building occupies nearly half the site, being set well back from the road.  It is constructed on three sides of breeze block and the front consists largely of corrugated metal, with a wooden door in a wooden frame.  There is a corrugated roof, which is overgrown, as is the area behind the building.  The door is currently padlocked.  The building has in it only old materials of little value.  It is divided in two down the middle by low wooden fencing.

3.	Seen from the road, towards the front left hand side of the land is an old red telephone kiosk, which had been there longer than any witness could remember.  Behind it is a telegraph pole, which appears to be a BT pole.  To the right of the land is another telegraph pole, which appear to carry electricity cables.  In the middle of the front of the land is old tarmac which leads from the highway to the building.  There is no fence between the land and the road.

4.	The land is flat, but is on a hillside.  The land and about 100 metres of land to its left are cut into the hillside.  At least the land to the left was, well over 100 years ago, a quarry.  Beyond the quarry and the land are two fields, the one on the left belonging to the Respondent, as does the quarry, and the one on the right belonging to the Applicant.  The land is at a higher level than most of the quarry, and is cut off from it by a low retaining wall that appears to have been there at the very least since before the 1950’s and possibly for much longer.  There is bushy growth above the retaining wall, although I was told that it was possible to get through it to the land from the quarry or the field above.  There is a steep drop from the fields above to the land – I was told that this was about 12 feet.  The field to the right descends steeply to the road to the right of the land, and there is possible access from the land to a small gate into the field close to it, although the path to this gate is steep.  There is a farm gate into this field directly from the road some distance away from the land.

5.	On the other side of the road, immediately opposite the land, is the entrance to the Applicant’s home, Pentre Falyn.  The Respondent is a company controlled by Mr. John Wood and his wife.  They live at a property called Pen Marian, a short distance away, having first rented and then purchased it.

6.	Both the Applicant’s property and the Respondent’s property have been registered at the Land Registry only relatively recently.  The Applicant’s land was first registered, in the Applicant’s name, on 22 October 2002 and the Respondent’s land on 3 September 2004, in the name of Sidney Leslie Blumenthal (“Mr. Blumenthal”), who gave evidence for the Respondent together with Mr. Wood.  

7.	The Land Registry filed plans show the boundary between the Applicant’s property and the Respondent’s property as going diagonally across the land, cutting the building in two in the process, with the larger part of the land including most of the building and the telephone kiosk as being in the title of the Respondent.  This plan does not show the exact line of the boundary.  The actual land contained in each registered title depends on the extent of the pre-registration title of each party (see Lee v Barrie, [1957] Ch 251, Derbyshire County Council v Fallon, [2007] EWHC 1326 (Ch), and Strachey v Ramage, [2008] EWCA Civ 384).  That would depend on what was conveyed to the Applicant and to Mr. Blumenthal, and would involve an examination of the pre-registration title deeds, and possibly also a consideration of when the two properties came into separate ownership, and of the land as it existed and was used over many years.  What is plain is that it is highly unlikely that the land was divided in this odd way, as there is no rational basis for such a division.  The strong likelihood is that the Land Registry plan, and possibly the pre-registration title deeds, show the boundary in the incorrect position, and the paper title to the whole of the land is in one or other of the parties, or belongs to neither of them.

8.	No pre-registration documents of title have been disclosed by either side, however, and no application has been made for the boundary to be determined on this basis.  The Applicant has applied for a possessory title of that part of the land which does not appear from the Land Registry plans to be in his ownership.  Curiously, I note that the Respondent had previously applied, without any apparent grounds, for a possessory title to the triangle appearing to be in the Applicant’s title, but had withdrawn that application when it was objected to.  It appears to have been that application that alerted the Applicant to the fact that his title to the remainder of the land was challenged and which therefore led to this application by him.  In dealing with it, I proceed on the assumption that the triangle of land is not within his legal title.  In the absence of any pre-registration title deeds or any search for them, although the properties had been registered for the first time only in 2002 and 2004, it was not possible to consider any issue as to the correct paper boundary.

9.	The Applicant’s case is that this land has been owned and occupied by his family for over 100 years.  His case really starts, however, around 1956, when three of his uncles, Richard, Harry and Griffith were occupying and apparently owning Pentre Falyn.  The Applicant is 62 years old, and personally recalls that at about that time one of his uncles erected the building on the land.  At that stage it was built as a garage and was used to garage his uncle’s car.  The telephone kiosk was already there, and nobody is able to remember a time when it was not there.  Nor is there any evidence as to the basis on which it was put on the land or as to any arrangements over the years between anybody and either the Post Office or BT as to its presence, or as to any access rights to it.  There is hardstanding in front of the building, and the Applicant stated that he recalled this being laid after the garage had been built.  Although he did not witness it actually being laid, he had assumed that one of his uncles had laid it.  It was suggested in cross-examination that it could have been laid by BT (or the Post Office) for use by people using the telephone kiosk.

10.	Mr. Roger Wyn Lewis, who is 63 years old, gave evidence that he remembers the building being used as a garage when he was about 12 and for some years afterwards, and Mr. Owen Meurig Davies (who disclaimed any relationship with the Applicant) also recalled that it had been there for as long as he could remember.  Mr. Myrddin John Roberts, who is 57 years old, gave evidence that he remembered the garage when he was a child, but did not get to know the Applicant well until 1982, having been away from the area from 1965 to 1979.  He regarded it as the garage of the Applicant and his family.  He would see the Applicant’s uncles on the land, and he was afraid to park in front of the building because it was their garage.  

11.	The hardstanding extends right up to the entrance to the building, well beyond the telephone kiosk and well beyond what would have been necessary to enable a member of the public to park while using the phone. I regard it as improbable that it was laid in connection with the kiosk.  I am satisfied that on the balance of probabilities it was laid by one of the Applicant’s uncles.  I also note that it was possible to park on the highway close to the kiosk, and that there was therefore no need for somebody using the kiosk to park on the land although it was marginally more convenient to do so.  Although there was plainly a right of access across the land to the kiosk, I see no reason to infer that that was a right with vehicles as well as on foot.

12.	At some point, the building stopped being used as a garage and was converted to be used to rear calves.  In the process, the garage doors were replaced by a smaller door and a corrugated metal front, and two stalls were created inside the building.  According to the Applicant, this was following the deaths of two of his uncles in 1975, and the conversion was carried out by his uncle Griffith Davies (“Griffith”).  The Respondent’s predecessor in title, Mr. Blumenthal, who gave evidence for the Respondent, was the owner of what is now the Respondent’s field from 1970 to 2004.  He was also a friend of Griffith, and visited the area frequently, although he lived elsewhere.  His evidence was that he had no recollection of the building being used as a garage, and that it was already being used by Griffith when he bought his land.  He was happy to allow Griffith to continue to use the building.  He never raised the subject with Griffith.  He recalled that Griffith used to keep calves and farm implements in the building.  He did not go around there much after Griffith died in 1985, except to use the telephone kiosk, but he could not remember the building being used after that time.  He was rarely there after suffering a heart attack in 1997.

13.	The Applicant, however, gave evidence that he continued to use the building for calves and to store farm implements until he stopped farming in the early to mid-1990’s.  He was vague about the exact year.  He then used the building for storage of such items as bales of barbed wire, wood that was being dried for firewood, gates, fencing posts and other odds and ends.  He claims that he kept it locked.  While keeping calves there, he would take them to and from his field up a steep incline to the right of the disputed land and through a gate at the top.  

14.	Mr. Roger Wyn Lewis gave evidence that he had sold the Applicant his first calves and had delivered them to the building.  He also gave evidence that he was afraid to park in front of the building without permission from the uncles.  Mr. Owen Meurig Davies remembered the building being used for calves, and that he had been clipped on the ear by one of the Applicant’s uncles for smoking beside it because it was a fire risk.  I accept this and the other evidence of the Applicant’s witnesses.

15.	I was also provided with a large number of signed statements from local residents, substantially in the same terms prepared by the Applicant to the effect that each of them had known that the building had been in the possession of, and used by, the Davies family for a specified number of years (in some cases 50 or more years) and had always thought that it was part of the smallholding.  Each statement referred to a plan in which the whole of the disputed land, including the building was coloured.

16.	The Applicant gave evidence that the building had been kept locked until there had been two break-ins around 2005/6.  On one of these occasions, the door was ripped off its hinges, and he had difficulty repairing the damage.  He also stated that every year he had cut the hedges around the building – otherwise, he pointed out, the entrance would have become overgrown.  He also stated that he had painted the front of the garage every year.  He had repaired the door following the break-ins and had now secured it with a new lock.

17.	There was an issue between the parties as to whether the building had been kept locked, or in recent years, even before the break-ins, whether the door had even been shut most of the time.  This was both with regard to the question whether the Applicant was in possession of the building and the area outside it, the manifestation of that possession, and the Applicant’s intention to possess.  There appeared to be nothing of significance in the building when I inspected it, and earlier photographs taken by a director of a company called Cubis Architecture and Design Limited (“Cubis”) in October 2005 also showed the building as in poor condition, with nothing inside it of any apparent value and creepers growing up the walls internally.  Cubis had an address in Llanfairfechan, which is on the mainland between Conwy and Bangor.  The director of Cubis who visited the building described it as having not been in active use for many years, as being abandoned and as containing old timber and debris.  The door was said to be wide open with no locking mechanism attached to it, and this appears to be confirmed by the accompanying photographs, although the photocopies in the trial bundle do show signs of damage to the door where one would expect to find any locking mechanism.  The writer was said by Mr. Wood now to be in the Czech Republic, and thus unable to give evidence.  The original photographs taken on that occasion were not produced in evidence and it was necessary to rely on the photocopies in the trial bundle.  I am unable to attach any significance to anything in that letter beyond the description of the building as it appeared on that day, there being no evidence that the writer had ever visited the property before or had any knowledge of its history.

18.	Mr. Blumenthal stated that this was, to the best of his recollection, similar to the condition it was in when he last saw it in 2004, before he sold the land to the Respondent, and Mr. Wood gave evidence in his witness statement that the building now had a door and a lock which had been affixed by the Applicant, but only recently.  Before that it was unlocked and basically derelict.  In oral evidence, he stated that the door had never been locked over a period of six years and most of the time the door was swinging open.  He also stated that rubbish and carcases of cattle were to be found behind the building, and that the only lock on the door had been the one recently placed there by the Applicant, although none of these points except the last had been pleaded or stated in written witness statements, and none had been drawn to my attention at the site view.

19.	It was forcefully put to the Applicant in cross-examination, and equally forcefully denied by him, that it could be seen from the photographs that there was no other lock than the one he had recently put on.  The Applicant asserted that the photographs showed that there was a second lock and that he had put it there following a break-in.  When I was later able to examine the photographs under a magnifying glass, a second padlock and bolt could clearly be seen.  They were also visible, if less obviously, in the copies of the same photographs forming part of the Respondent’s Statement of Case.  That does not answer the question of when the second, and earlier, padlock and bolt were put on, bearing in mind that there were said to have been two break-ins, but it does mean that the evidence given by Mr. Wood is not correct in this respect.  The Applicant’s witnesses gave evidence that the building was usually kept shut, although they could not remember if it was locked.

20.	It is also the case that the Applicant was forcefully cross-examined as to his contention that he had painted the front of the building every year.  He then stated that he had painted the galvanised sheeting and creosoted the door every year, and had creosoted the door that summer.  Again, an inspection of the photographs shows that the galvanised sheeting in front of the building is in a significantly better state that that to the side of it.  The door and frame are also showing no signs of rot that I was shown or that appear from the photographs, although part of the frame is overgrown at the bottom.  While the roof is heavily overgrown with vegetation, the exterior, as seen from the front does not look abandoned.  It appears to me that some effort has been made to prevent the front of the building from deteriorating, and I accept the Applicant’s evidence that he has maintained it, if rather roughly.  

21.	I accept the evidence of the Applicant, supported to a degree by that of Mr. Blumenthal and Mr. Roger Wyn Davies, that calves were kept there from the early to mid 1970’s until the early to mid 1990’s.  The building fronts onto the public highway, and I would find it surprising if some form of security was not in place and if the door was not properly secured while the calves were there.  Indeed, Mr. Blumenthal recalled that there had been a bolt on the door.  At other times, the door could have been left open, while the calves were in the field.  I would add that whether they got to the field by the way stated by the Applicant or by a farm gate further along the road, as was suggested in cross-examination, appears to me to be immaterial, but I have come to the conclusion that the Applicant was a truthful witness, and I accept his evidence as to this.

22.	I also accept his evidence that most of the time there was a padlock on the door.  It was missing following a break-in when the building was inspected in October 2005, but I accept the evidence of the Applicant that he repaired the damage and secured the premises soon afterwards.  I am satisfied that the door had been repaired and secured soon after both break-ins, and that that fact would have been apparent on a reasonable inspection of the building. 

23.	There was uncontested evidence that members of the public used to park on the land without permission while waiting to use, or while using, the telephone, but apart from that I am satisfied that it was generally understood in the area that the land was that of the Davies family, and that in general people did not park without the permission of one of the uncles while alive, and subsequently the Applicant.

24.	There was a further issue as to who was paid a wayleave in respect of the BT pole.  Both parties produced evidence of payments in respect of poles, but neither was able to show that they were paid in respect of that pole.

25.	I note that Mr. Wood made no enquiries locally as to the building.  The obvious person to ask was the Applicant, who lived directly opposite it.  I also note, with some puzzlement, that despite the fact that Mr. Wood has stated in evidence that he regarded the property as abandoned, when he discovered that the Land Registry general plan excluded part of the property from his title, he caused the Respondent to apply for a possessory title to that part.  That application was itself abandoned, but I am unclear on what evidence it could possibly have been made.  I am also unclear why Mr. Wood should have had a person from the mainland, some 20 or so miles away, who does not seem to have known the building before, come to take photographs of it and write a letter to him about its state, and the fact that it had been abandoned for many years, if, as he stated in evidence, he himself walked past it three or four times a week, and, despite his being registered blind, his peripheral vision enabled him to see it clearly and to describe what was in it and around it.  I also find it strange that Mr. Wood should have needed this information from an outsider if he believed that the land had been acquired by his company from Mr. Blumenthal and it could be seen on his very regular walks that the building was not in use and the doors were swinging open.  Finally, I note that he persisted with his claim that the door was never padlocked until recently when the padlock could clearly be seen on the originals of the photographs exhibited to the Respondent’s own Statement of Case.  Insofar as there is a conflict between the evidence of Mr. Wood and that of the Applicant, I have no hesitation in preferring the evidence of the Applicant.

26.	I conclude that possession was clearly taken by one or more of the Applicant’s uncles, at latest when the garage was built in the 1950’s.  Apart from the telephone kiosk and possibly the telegraph pole, I am satisfied that the whole of the area was taken possession of up to the public highway despite the fact that there was no fence between it and the highway.  This was something that was obvious locally, it being well understood that this was their property and that their permission was needed to park there unless simply using the kiosk.  Fencing was not essential, and, especially after the laying of the hardstanding it must have been clear to all who was in possession of the area.   
 
27.	Although in latter years, the property was neglected and used much less than it was before the Applicant gave up farming, I am also satisfied that he did not abandon possession of it.  He painted and creosoted the front of the building from time to time and he used it to store wood and other items.  He also trimmed back the vegetation to keep the front clear.  Further, when, on two occasions, there were break-ins, he repaired the damage and re-secured the door. This may or may not have been enough to take possession and evince an intention to exclude the true owner had nothing gone before, but he already had possession of it, and indeed title to it, and in my judgment his limited use of it, coupled with the fact that others locally would seek and receive his permission to park there, was sufficient to show that he had not abandoned it.  

28.	I am further satisfied that it was seen by the director of Cubis following the first break-in, but its state when seen at that time was not how it normally appeared on inspection.  The Applicant’s recollection as to dates was in many respects inaccurate and I am unable to place any great reliance on his evidence in that respect, but I am satisfied that his evidence as to the way he maintained and repaired and secured the building was truthful.  I am therefore satisfied that had Mr. Wood or his agent inspected the building either before the break-ins or after the damage had been repaired on each occasion, there would have been clear evidence that the building was not abandoned.  If Mr. Wood did indeed walk past it three or four times a week, and if he was able to see it using peripheral vision, as he stated, then he would have been well aware of the repairs that had been effected and that the door was generally kept shut.

29.	While I find that Mr. Blumenthal is a truthful witness, he did not visit the land very much after Griffith died, and either he happened to pass it when the door was open on his visit in 2004 or his recollection is mistaken.  In general, I am satisfied that the door was closed and secured.  I am satisfied that an inspection of the property at the time of the disposition would have shown that it was secured except immediately following the break-ins.  It would also have been apparent following the repairs which took place after the break-ins that there had been recent repairs to the door and a new bolt and lock fitted, and that the building was not abandoned.

30.	Had Mr. Wood had made any enquiries locally, he would have had no difficulty in discovering that it was commonly understood that the building belonged to the Applicant.  I find it surprising that, as a local resident, at least part-time, he made no such enquiries before employing an outsider to inspect it for signs of occupation.

31.	Counsel for the Respondent has submitted, relying on Glyn v Howell, [1909] 1 Ch 666 that only the area in possession of a squatter may be the subject of a successful claim to a possessory title unless the court can infer that occupation of a wider area is necessary to give effect, for example, to contractual obligations owed to third parties.  That case was concerned with ownership of an underground mine.  It may be, as is suggested in Jourdan on Adverse Possession at paragraph 11-06, that the cases such as this in cases concerning mining rights where there has been a rule that a squatter who works part of a mine does not acquire title to the whole result from the application of the rule that adverse possession must be open so as to be apparent to a reasonably careful owner.

32.	However, it is plain that there is no such general rule in other cases.  Thus in Higgs v Nassauvian Ltd., [1975] 1 All ER 95, Sir Harry Gibbs stated, in delivering the opinion of the Judicial Committee of the Privy Council, 

“It is clearly settled that acts of possession done on parts of a tract of land to which a possessory title is sought may be evidence of possession of the whole… This rule is not applicable to a question of undefined and disputed boundary… but this does not mean that acts done on part of the land are only relevant to prove possession of the whole if the land is enclosed by a wall or other physical barrier.  The property claimed by possession may be sufficiently defined in other ways… The question was one of fact and degree and depended on a consideration of all the circumstances of the case.”

33.	So too, in Powell v McFarlane, (1977) 38 P & CR 452, at p.471, Slade J stated –

“In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion… It is clearly settled that acts of possession done on parts of the land to which a possessory title is sought may be evidence of possession of the whole.  Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree.”

34.	In my judgment, in the present case, the following matters lead inevitably to the conclusion that the claimant’s uncles, and later the claimant, took possession of the whole of the disputed land:

(1)	The contours of the land and the fact that nearly half of that land was within the paper title of the claimant.
(2)	The fact that the garage was built across the disputed land and the adjoining land, as already described by me.
(3)	The fact that the claimant’s uncle laid the hardstanding.
(4)	It would not make sense to take possession only of the land on which the garage stood without taking possession of the land in front of it.  Without the land to the front, no access to the garage would be possible.
(5)	It was commonly understood locally that the land to the front belonged to the claimant, and before him to his uncles, and was not to be parked on without permission.
(6)	Once such possession had been taken of the land in front and of the garage, there was no other reasonable and practicable access to the land to the side and the back, which was clearly demarcated as part of that area.  This land was partly (by reference to the Land Registry’s general boundary) in the title of the Applicant and partly in that of the Respondent.  It was wholly neglected by the Applicant, and there is no evidence that, after the building had been erected, it was used in any way by him or his uncles.  If, however, one is asking if he used that area as an occupying owner may have done, the answer in part is that as to over half the area he and his uncles were the occupying owners.   He and they had taken possession of that land although they subsequently neglected it.   
(7)	Anybody looking at the land and the building on it would regard it as a single piece of land in a single possession, that of the claimant and, before him, his uncles.

35.	Since preparing this decision, my attention has been drawn to the decision of the Ontario Court of Appeal in Laing v Moran, [1952] 2 DLR 468, in which the court also concluded that a person who had constructed a garage and an unenclosed drive to the garage, partly on his own land and partly on his neighbour’s land had taken possession of the whole of the land on which the drive was constructed (see in particular at the foot of p.475).  A different view was come to there as regards the land behind the garage, but in that case the land was open and not enclosed as the land in this case is.

Can the Applicant rely on his pre-registration title?
36.	Counsel for the Respondent points out that the referred application is under paragraph 1 of Schedule 6 to the Land Registration Act 2002.  It is not in the trial bundle, but I have a copy provided by the Land Registry.  It is in form ADV1, and is supported by the statutory declarations and other documentation to which I have referred, showing (as I have found) possession, and the necessary intention to possess, going back at least to the mid-1950’s.  The application is expressly stated to be made under Schedule 6, paragraph 1 and to rely on Schedule 6, paragraph 5(4).  

37.	All the evidence put forward by the Applicant has been addressed and challenged by the Respondent.  The application is for registration of a possessory title.  I see no reason why (as has been the consistent practice of the Adjudicator) I should not deal with that application on the basis that title was acquired (subject to arguments advanced by counsel for the Respondent and dealt with below) while both properties were unregistered.  The alternatives would be (1) to direct that it should not be registered because he already had a possessory title, and thus could not have acquired one under Schedule 6, leaving him to make a further application using the correct form, AP1, to which no legitimate objection could be raised in the light of my findings, or (2) to permit reliance on paragraph 5(3) of Schedule 6 although no reliance was placed on it in form ADV1, the supporting facts having been spelled out in the supporting statutory declarations.

38.	I have been referred by counsel for the Respondent to the Land Registry Practice Guide 4, dated August 2009, but without any reference to Practice Guide 5, which deals with adverse possession of (1) unregistered land and (2) registered land where the squatter was in adverse possession for the requisite limitation period so as to have acquired a right to be registered as proprietor before 13 October 2003 (see the front cover of Practice Guide 4).  It is Practice Guide 5 which would seem to be at least as relevant to the present case as Practice Guide 4.

The effect of the transfer to the Respondent on any possessory title of the Applicant
39.	It is contended by counsel for the Respondent that the disputed land was transferred to the Respondent free from any possessory title which had previously been acquired by the Applicant or his uncles by virtue of section 29 of the Land Registration Act 2002.  This provides as follows:

(1)	If a registrable disposition of a registered estate is made for valuable consideration, the completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration.
(2)	For the purposes of subsection (1), the priority is protected –
(a)	in any case if the interest –
(i)	is a registered charge or the subject of a notice in the register,
(ii)	falls within any of the paragraphs of Schedule 3, or 
(iii)	appears from the register to be excepted from the effect of registration, and
(b)	in the case of a disposition of a leasehold estate, if the burden of the interest is incident to the estate.
(3)	Subsection (2)(a)(ii) does not apply to an interest which has been the subject of a notice in the register at any time since the coming into force of this section.

40.	Schedule 3 provides that the following unregistered interests override registered dispositions – (1) certain leasehold interests, (2) certain interests of persons in actual occupation, (3) certain interests of persons in occupation of the rents and profits of the land, (4) various easements, profits, customary and public rights and other specified rights.

41.	Paragraph 2 of Schedule 3 provides that an interest of a person in actual occupation is an overriding interest except, inter alia, 

(b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so;
(c) an interest –
(i)	which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and
(ii)	of which the person to whom the disposition is made does not have actual knowledge at that time;”

42.	Because the Respondent’s lawyers had not appreciated that any pre-2003 possessory title would be dealt with at the hearing, there was no evidence there as to the date of the disposition by Mr. Wood and his wife to the Respondent.  I therefore directed that evidence as to this should be provided, and in due course a transfer was provided from Mr. Wood and his wife to the Respondent dated 7 March 2006.   The sale from Mr. Blumenthal to Mr. Wood and his wife had been in 2004, when the land was first registered.  I am satisfied that in March 2006 it would have been obvious on a reasonably careful inspection of the land that it was occupied.  In March 2006 this would have been particularly obvious as the damage done to the door had recently been repaired and new locks fitted.

43.	It does not appear to me to enable a purchaser to rely upon paragraph 2(c) of Schedule 3 to the Land Registration Act 2002, that although it was obvious that somebody was in occupation of the land and was keeping the building on it secure, the purchaser had chosen not to enquire who that person was and what interest he asserted.  He was in possession and therefore had a possessory title, which may or may not have evolved into a title that the vendor or the purchaser would be unable to challenge.  

44.	I further note that the effect of section 29 is to take away the property of the person whose interest is not noted on the register.  That, on its face, makes applicable Article 1 of Protocol 1 of the European Convention on Human Rights.  Section 29 brings about this result without notice to the affected party and (on a literal reading of the provisions) even though the person’s occupation may have been obvious shortly before the time of the disposition and the purchaser had deliberately turned a blind eye to the possible rights of that person.      

45.	As stated by the Grand Chamber in J.A. Pye (Oxford) Ltd and J.A.Pye (Oxford) Land Ltd v The United Kingdom (Application no. 44302/02), paragraph 54, a taking of property under the second sentence of the first paragraph of Article 1 without payment of an amount reasonably related to its value will normally constitute a disproportionate interference that cannot be justified under Article 1.  In that case, it considered, by a majority of 10-7, that the fair balance required by Article 1 of Protocol 1 was not upset by the 12 years limitation rule in relation to registered land.  

46.	It appears to me that there are serious issues to be considered as to the compatibility of the new rules depriving persons of their property rights in all the circumstances described in section 29 and Schedule 3 with Article 1 of Protocol 1, if literally applied, and if they are not so compatible, as to how they should be construed or dealt with.  This is particularly so in a case like the present, where, in my judgment, whatever the position at the time of the disposition, it would have been clear to anybody in the position of Mr. Wood, as he walked past regularly, that the property was occupied and he deliberately chose not to make enquiries about it.  It is unnecessary for me to come to any decision on the point, however, and I do not do so.

The schedule 6 claim
47.	For completeness, if, for any reason, I am wrong in determining the dispute in the manner set out, I am satisfied that the Applicant did reasonably regard himself as owner of the disputed land for well in excess of 10 years ending on the date of his application to be registered with a possessory title.  The belief was reasonable, inter alia, because he was the owner at least with a possessory title and because he was well aware that his family had been in possession as apparent owners for half a century at least, and nobody had ever challenged that possession or title until the Respondent came on the scene.  I do not consider that anything done or said by or on behalf of the Respondent at any time altered that belief or rendered it in any way unreasonable.

48.	I do not consider in any event that the 10 years period of reasonable belief had to continue right up to the date of the application for the title.  That would produce the perverse result that if the other party even succeeded in casting doubt in the mind of the party in possession as to his title, he could no longer succeed, however long he had held the belief and however reasonable that belief might have been.   Paragraph 1(1) of Schedule 6 requires a person to have been “in adverse possession of the estate for the period of ten years ending on the date of the application.”  Paragraph 4(4) of that Schedule requires that “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”.  While paragraph 5(4) is ambiguous, it makes more sense in my judgment that the belief could be held during any ten years of the period referred to in paragraph 1 than that it had to be held to the moment of the application being made.

49.	It follows that paragraph 5(4) of Schedule 6 to the Land Registration Act 2002 is satisfied, there being no question that the other provisions of that paragraph are satisfied, and the applicant is therefore entitled to be registered as the new proprietor under that paragraph.

The alleged public right of way
50.	The Respondent contends that there was a public right of way to the telephone kiosk throughout the period of occupation by the Applicant and his uncles and that that would prevent any of them from obtaining a possessory title to the land.  I have had no evidence as to the basis on which the telephone kiosk was placed on the land, or as to the basis of public access to and from it, or as to the route of that public access.  It is clear that a right of public access on foot must exist, or have existed while the kiosk was in use, although it is not clear across what part of the land it could lawfully be exercised.  However, whatever may have been the practice, I am not prepared to assume that there was ever any public right to park on the land to use the kiosk, or that there was any public right of access across the land from parked cars to it.

51.	The Respondent relies on R (on the application of Smith) v Land Registry (Peterborough Office), [2009] EWHC 328 (Admin) for the proposition that no adverse possession may be claimed over land that is subject to a right of way.  In that case the whole of the land over which adverse possession was claimed was and remained a public highway (see paragraph 4 of that decision).  As there pointed out, it was classified in 1987 as a byway open to all traffic and as such was from at least that date a highway maintainable at public expense, and by virtue of s.263 of the Highways Act 1980, the surface vested in the local authority.

52.	At paragraphs 6 and 7, Judge Pelling QC pointed out that the right to pass and repass was over the whole width of the highway and not just that part of it currently used to pass and repass, it was not open to a local authority to licence an obstruction of the highway except in accordance with specific statutory powers, and by s.137 of the Highways Act 1980 it was a criminal offence for any person without lawful authority to wilfully obstruct a highway.  That being so, he continued at paragraph 8, “it is difficult to see any circumstances in which adverse possession to part of a highway could be established other than by acts that would constitute obstruction under what is now s.137 of the Highways Act 1980.”

53.	Judge Pelling QC went on to refer to the decision of the Court of Appeal in London Borough of Bromley v Morritt, [unreported, 21 June 1999].  That was a case for trespass and nuisance caused by the construction of a fence and wall on part of the public highway.  In dismissing an appeal against a decision in favour of the local authority, Mummery LJ stated –

“On the judge’s finding of fact the land enclosed by the fence and wall was part of the public highway.  As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists.”

54.	Judge Pelling QC concluded that this statement was obiter only, and so not strictly binding on him, although he considered that he should give it considerable weight.

55.	He went on to refer to a decision of Swinfen Eady J in St. Ives Corporation v Wadsworth, [1908] Knights LGR 306, where the question for decision related to “a small piece of land in the corner between a bridge … and the Defendant’s house” which the Plaintiff alleged to be part of an ancient highway.  It was accepted or assumed in that case that rights could not be acquired over a highway by adverse possession.

56.	Judge Pelling QC then cited the opinion of Lord Scott in Bakewell Management Ltd. v Brandwood, [2004] 2 AC 519, where he confirmed that earlier statements of law by the Court of Appeal in 1963 that a party could not acquire any legal rights under the Town and Country Planning Act 1947 by a use of land which was illegal under that Act was plainly correct.  Judge Pelling QC stated (paragraph 14 of his decision) that that finding supported by analogy the proposition that it was “a legal impossibility for the Claimant to claim adverse possession to part of a highway by reference to the illegal obstruction of it for a period of 12 years prior to the making of the claim contrary to the terms of the primary legislation which makes such obstruction criminally and not merely tortiously unlawful.”

57.	He went on to distinguish Haigh v West, [1893] 2QB 19, where the Court of Appeal found that a possessory title had been acquired over land which included a public right of way although, as stated by Lindley LJ at p.31 of that decision, “the title so acquired must be subject to the right of way.”  As Judge Pelling QC pointed out towards the end of paragraph 17 of his decision –

“the key point is the last one that is the title obtained was “subject to the public right of way”.  This, of course, is radically different to what is contended for in top this case [sic], where the Claimant is seeking to maintain that the public right of way has been extinguished over that part of the highway on which his caravans and other structures are located.  It is this factor which makes Haigh v West clearly distinguishable because no one in that case was suggesting that the public right of way was extinguished.”

58.	 So too, nobody in the case before me is contending that such public right of way as there may have been to the telephone kiosk has been extinguished by anything done by the Applicant or his uncles, or that there has been any illegal interference with that right of way.  Judge Pelling QC makes it plain in paragraph 19 of his decision that he is following Mummery LJ’s dictum in relation to “a contention that a possessory title has been obtained which has the effect of extinguishing some or all of the public highway concerned.”

59.	Following Haigh v West and also Pye v Graham, which concerned a field over which there was a public footpath, I am satisfied that a possessory title to land can be obtained notwithstanding that there is a public right of way over part of it provided that the acts of possession relied on do not illegally interfere with the public right of way and that the title acquired is subject to that right.

60.	Further, what is an appropriate degree of physical control over land must, as Slade J stated in the much cited passage from Powell v McFarlane, (1977) 38 P & CR 452, depend on all the circumstances.  What must generally be shown is that the alleged possessor has been dealing with the land as an occupying owner might have been expected to deal with it and that no one else has done so.  Where land is subject to a public right of way, an occupying owner can only be expected to deal with the land in a manner consistent with the existence of the right of way and without wrongfully interfering with it.  For that reason, he could not, for example, be expected to fence off the land so as to exclude the public from exercising the right of way.  

61.	In this case, the use of the land as a forecourt for the garage and for parking for the occupier, and for friends with permission, did not interfere with any public right of way and was using the land as an occupying owner might be expected to use it.  

62.	There is also an issue as to the position regarding the kiosk and the telegraph or telephone pole.  So far as the pole is concerned, it seems likely that the pole was originally erected under a wayleave or similar and it is sufficient that the possessory title is registered subject to the rights of the owner of the pole.  So far as the kiosk is concerned, in the absence of any suggestion that the Post Office have any title to the land on which the kiosk stands, it seems to me that the possessory title must be subject to whatever rights the Post Office or its successors in title may have to the land on which the kiosk stands.    The possessory title must also be expressed to be subject to such public rights of way as may exist between the highway and the kiosk.  Whether any do still exist now that the kiosk is no longer in use and has apparently been sold to the local authority is not something that I need to consider.

63.	Subject therefore to the preservation of the rights of the owners of the telephone kiosk and the telegraph pole, and of any existing rights of way, the application succeeds.

Dated this 16th day of February 2010

By Order of The Adjudicator to HM Land Registry