REF/2008/1105
 
ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
1.	DENNIS PHILIP CROWE

 APPLICANT

and

STAPLETON CONSTRUCTION LIMITED

RESPONDENT

Property Address: Salisbury Gardens on the south west side of Dudlow Lane Wavertree
Title Number: MS373750
 
Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at:  Liverpool ETS
On: 12 and 13 May 2010

Applicant Representation:  Mr. David Green, Counsel
Respondent Representation:  Mr. R.A. Hall, Counsel
___________________________________________________________________________

DECISION

 Prescriptive easement to use open space as a communal garden established on the facts and found to be an overriding interest.  Nature of requisite user for such an easement considered.  Caution effective although registered to protect a similar  right under a lease which was accepted at the hearing as being void under the law against perpetuities.

Cases referred to: Dunn v Blackdown Properties, [1961] Ch 33; Re Ellenborough Park, [1956] Ch 131; Jackson v Mulvaney, [2003] 1 WLR 360; Bridle v Ruby, [1989] 1 QB 169.

1.	For the reasons given below, I shall direct the Chief Land Registrar to replace the caution of the Applicant with a notice that the property comprised in title MS373750 is subject to a prescriptive easement for the benefit of 29 Montclair Drive Wavertree Liverpool, being the property comprised in leasehold title MS233802, and the freehold title to that property, to use and enjoy the land comprised in title MS373750 (subject only to the rights of the owner for the time being of the electricity substation on that property) together with other persons with the like rights as a communal garden for recreation, leisure and amenity purposes.

2.	The Applicant, Mr. Crowe, and his wife are the registered proprietors with good leasehold title of 29 Montclair Drive, Wavertree, Liverpool.  It is registered at HM Land Registry under title number MS233802.  The lease, which is dated 7 April 1924, is for a term of 993 years from 25 March 1920.  It formed part of a development of land owned by the Marquess of Salisbury.  The development, so far as relevant to this case, included Montclair Drive, Rutherford Road and Sinclair Drive.  The land in title MS373750 to which the present application relates is known as Salisbury Gardens, (“the garden”) and is open land surrounded by the three roads to which I have referred and Dudlow Lane.  Montclair Drive is to the south east of the garden, Rutherford Road is to the south west, Sinclair Drive is to the north west and Dudlow Lane is to the north east.  Access to the garden is obtained from gates on Dudlow Lane and Montclair Drive and also through gates leading from many of the houses backing onto the garden.  Mr. Crowe’s home is on the corner of Montclair Drive and Dudlow Lane, and has access to the garden through a gate.

3.	Mr. and Mrs. Crowe’s lease is of the land coloured pink on the lease plan together with the semi-detached house recently erected on that land “Together with liberty for the Lessee in common with the Lessor and all other persons for the time being having the like liberty to use and enjoy the ornamental garden referred to in the Schedule hereto (if and when formed) but subject to such covenants and provisions with respect to such user and enjoyment and otherwise as are hereinafter contained”.

4.	The Schedule provided that a committee should be formed for the purpose of maintaining and keeping in good order during the continuance of the term granted by the lease the ornamental garden coloured green in the plan marked "A" in the margin of the Schedule if and when made and the walks originally or from time to time made in the garden and for various other matters in connection with the maintenance and upkeep of the garden.

5.	The Schedule went on to provide for an annual contribution to be made to the expenses of the committee and for the way in which its members were to be chosen and carry out their business. There was also provision as to who could enjoy the benefit of the garden, if and when formed, and for the making of reasonable rules and regulations by the committee governing the way in which the garden was to be enjoyed. 

6.	Unfortunately, as a matter of law, the rights granted by the lease over the garden if and when formed were in breach of the rule against perpetuities, and therefore void. This is because, on the evidence available, the garden had not been formed at the date of the lease, and there was no guarantee that it would ever be formed within the perpetuity period (see Dunn v Blackdown Properties, [1961] Ch 33).  It is unlikely that this was appreciated by anybody until recently.  

7.	There is little evidence of the history of the garden before the arrival of Mr. and Mrs. Crowe in 1985.  A 1927 ordnance survey plan shows the development to be complete around the gardens but with no indication of any laying out of the garden itself. A lease was granted of the gardens in 1931, although no copy of it was in evidence.  It is only on an ordnance survey map of 1937 that the garden can clearly be seen to have been laid out as a recreation ground with paths, a pavilion, a tennis court and an area described as tennis ground.  Access is shown from Dudlow Lane.  The 1952 ordnance survey plan is similar but the tennis court area is shown as a single area and part of the area shown as tennis ground is excluded from the tennis court area.  A later plan prepared in conjunction with the erection of an electricity sub-station in one corner of the garden close to Dudlow Lane still shows the pavilion and tennis courts but has fewer paths than before.

8.	The electricity sub-station was erected pursuant to the terms of a Deed dated 9 December 1963 in which the grantors were stated to be the then chairman and secretary of the Management Committee formed and elected under the terms of a lease of 28 February 1923 between the Marquess of Salisbury, Thomas Jones and John Duncan Salmon for the purpose of keeping and maintaining in good order during the term granted by the lease the ornamental garden edged red on the plan annexed to the Deed.  The ornamental garden is shown on the plan as being the garden over which rights were purported to be granted under Mr. and Mrs. Crowe’s lease.  The second recital to the Deed states that the Management Committee had agreed to grant the Electricity Board permission to erect the sub-station on part of the garden and grant various ancillary rights in consideration of the Board providing a supply of electricity “to the pavilion of the tennis club belonging to the Management Committee situate on the ornamental garden”.  The grant was expressed to be so far as the Management Committee was lawfully able to do so.

9.	Mr. Crowe gave evidence that he had moved to the area when he was 13 in 1964.  A friend of his brother lived in one of the roads surrounding the garden, and they would go to play in the garden in the following years, accessing it through the friend’s house.  He described it as a very pleasant play area.  There was always a rope swinging from a tree and a small flat area where you could play football, mainly close to the tennis courts.  There were two tennis courts there then which he believed were being used, although not by him.

10.	Evidence was also given by Judith Harris, who stated that she had lived at 13 Montclair Drive since October 1964. She had been the treasurer of the Salisbury Gardens Residents Association and on the management committee of the Salisbury Gardens Tennis Association since at least 1970. She had used the garden since she moved in, without challenge, in the knowledge that she had the right to do so. As with many other residents, including Mr. Crowe, she had access to the garden through a gate in her back fence. She had financial records relating to the Gardens Association and tennis club from the 1960s.

11.	In other respects Mrs. Harris, confirms the evidence of Mr. Crowe, to which I shall come. Her evidence was accepted by the respondent without any requirement for her to be cross-examined. Indeed, except on very minor points, the evidence of Mr. Crowe and all his witnesses was accepted by the respondent. I also accept that evidence.

12.	Another witness, John Tegid Williams, head lived at 27 Montclair Drive since 1976. From 1976 to late 2007 he kept dogs which he frequently walked in the garden. – about once or twice a week. He often met Mr. Crowe or one of his family while exercising or playing with his dogs from the time that Mr. Crowe moved in to 29 Montclair Drive in 1985. From the time that he moved into his property, there had been collections from the residents to pay for the upkeep and maintenance of the gardens and the residents had been organized to work in them. Mr. Williams had always participated in this wherever possible and he confirmed that Mr. Crowe had done so since he arrived in 1985. Again, in other respects, Mr. Williams confirmed the evidence of Mr. Crowe to which I shall come.

13.	The residents at 29 Montclair Drive before the Crowes moved in were Mr. and Mrs. Piercey.  Mr. Williams saw them in the garden from time to time with their poodle, but he did not see them use it in any other way.  He would go out regularly if the weather was fine both before and after the Crowes moved in.

14.	Mr. and Mrs Crowe bought the lease of 29 Montclair Drive in 1985.  The lease was subsequently transferred into the sole name of Mrs Crowe, and was transferred back into joint names in February 2007. They were aware before they bought in 1985 of the right to use the garden contained in the lease.  There was a gate leading from their back garden into the garden at the time that they bought.   The right to use the garden was a significant factor in their purchasing the property. They were starting a family and they felt that it would be advantageous to have use of the garden as an area on which children could play. Their first child was born in 1985, and they had three further children between 1988 and 1991.

15.	In 1986 Mr. Crowe became a member of the Salisbury Gardens committee and has been a member ever since, serving as chairman at various times.   He and Mrs Crowe have regularly over the years from 1986 taken part in the maintenance of the garden, clearing undergrowth, mowing grass, reviewing the condition of trees and taking remedial action if necessary, dealing with problems arising from the destruction by fire of the pavilion in 1999, helping in the construction of a new tennis court to replace the old ones, contributing to the cost of works and of public liability insurance,  helping to remove rubbish that would get dumped in the garden from time to time and organising events such as barbecues, firework displays and bonfires. At one stage, about five years ago, he sought to clear some of the brambles in a central area of the garden and replace them with a wildflower garden. Unfortunately, this was not a success. Certain areas would be left wild deliberately. Until recently, the entrance from Dudlow Lane was kept clear, and Mr. Crowe made arrangements with the council for a large mower to come in to cut the grass. That entrance also needed to be kept clear to enable the electricity board to obtain access to the substation. Mr. Crowe had a set of keys to the locked gates leading from Dudlow Lane.

16.	 Throughout the period from 1986, the garden has also been used extensively by Mr. and Mrs Crowe and their family, mainly in spring, summer and autumn, but also in the winter when there was snow on the ground.  In essence during this period the layout of the garden has not changed significantly, apart from the disappearance of the pavilion and the replacement of the old tennis courts. Many, but not all, of the houses backing on to the garden have access to the garden through gates from their own land. There are substantial grassy areas around the tennis court, and another grassy area close to the electricity substation. These areas have been regularly mown from time to time. There are paths around or close to the perimeter of the garden, and another path diagonally crossing it. These paths are not made up, but have been created by people walking along them. There are a significant number of trees in the garden and also shrubs and undergrowth.  Much of the trees shrubs and undergrowth is self sown, but there are also examples of trees and shrubs which have been planted by local residents.

17.	 The gate from the Crowes’ home is in one corner of the garden, and a path leads from it through trees to the main perimeter path. 

18.	Typically in a year, the Crowes would hold or take part in two or three barbecues using either the area by the tennis court or the open area by the substation.  There would also be an annual bonfire for everybody on Guy Fawkes night.  The Crowes would normally take part in these events. In addition, members of the family would use the garden in various different ways over the years. The children in particular would play football, mainly in the area beside the substation, but also at times with other children in other parts of the garden. When they were very small, the children would be brought out into the garden to play and to walk around. Again, they would tend to play in the area near the substation, and they and their parents would walk along the perimeter paths and the diagonal path to which I have referred.  When the children were very young and were playing near the substation, Mr. and Mrs Crowe would sit in the area, and in the evenings would enjoy a glass of wine. They would also sometimes set up a badminton court in the area.

19.	They would meet other families in the garden and the parents would sometimes stop and chat. Mr. Crowe has over the years regularly enjoyed walking around the paths looking for birds and other wildlife.  He likes to spot birds and identify them. A daughter of the family has enjoyed playing tennis on the tennis court from time to time, as has Mrs Crowe. Mr. Crowe has also played tennis, but only a few times. The family has also had picnics in the garden, again mainly in the grassy area near the substation, as this area is the closest open area to their home.

20.	Mrs Crowe gave evidence that she has helped with clearing up the garden from time to time. From 1985 until 2000 she was a full-time parent of small children. They would be out in the garden as often as possible, and the children were out there weekly at least and on average three times a week. They would be out more frequently in spring and summer and less frequently in other months in the same way as they would use their own garden. They could have been out every day if the weather was good. Her husband was at work most of the time, and she was the main carer.

21.	 When the children were younger and under close supervision, they were mostly at their end of the garden. Later the children would go off by themselves. They would barbecue by themselves even when they were quite small. They would make dens in the overgrown areas.  Mrs. Crowe also saw a rope swing hanging from a tree, but did not know if her children used it when she wasn’t looking. They had used the tennis courts with the children to teach some basic skills from 1992 onwards to past 2000. In the summer holidays she would look after a nephew and niece and she had played tennis with them in the past eight or nine years. This was of course apart from the time when the tennis courts were not functioning after the fire at the pavilion. She had helped with clearing the debris after the fire.

22.	 When, as sometimes happened, the grass was too long to play football, the boys would nag their parents to go out and cut the grass. They would also use the garden to play football in winter mainly because Mrs Crowe would throw them out of their own garden to protect her windows. As they got older, the Crowe’s children used the garden less frequently, but they have still used it when not away at university.

23.	 Bonfires were usually at the tennis court end, but were occasionally held at their end of the garden. The children always wanted them, and they were used to burn garden rubbish before winter set in. Barbecues were sometimes held in the garden, and were sometimes held in the Crowes’ own garden, but with guests and the crows spilling out into the garden in the course of the barbecue. There would be about two barbecues per summer in the garden, and about two other barbecues per summer in the Crowes’ garden.

24.	 Mrs Crowe stated that she supervised cricket, football, badminton and other games played by her children. She also gave evidence that in 2007 they were having an extension built, and used the garden more as a result to escape from the builders’ mess.

25.	I accept the evidence of Mr. and Mrs. Crowe.

26.	 Several neighbours gave evidence in support of Mr. and Mrs Crowe, giving details both as to their own use of the garden and as to the use made of it by Mr. and Mrs Crowe and their family. I accept their evidence, but in the absence of any serious challenge to the evidence of Mr. and Mrs Crowe, it is unnecessary for me to set it out in any detail. I am satisfied on the basis of that evidence and the other evidence to which I have referred that the garden continued to be used by a significant number of the occupants of the adjoining properties as a garden ground for their recreation throughout the period in respect of which evidence was given, that is from 1964 onwards, and that the Crowes so used it from the time they moved in.

27.	 On 3 June 1996, Mr. Crowe registered a caution against the registered title to the garden. He made a statutory declaration to support his application for the caution, stating that he was interested in the land as he was the leaseholder of 29 Montclair Drive and the lease granted him the rights of access and enjoyment of the garden. There was no evidence before me as to what, if any, notice of this caution was served on the then freeholder.

28.	 The freehold title to the garden was conveyed with other land, which may have included the freehold title to 29 Montclair Drive, by a conveyance dated 31 December 1949 between (1) the Marquess of Salisbury, (2) the Gascoigne Cecil Estates Company and (3) Alfred Byrne, Frederick Hales and William Matthias Newham. Title to the garden was first registered on 3 August 1979, by which time the freehold to the garden appears to have come into separate ownership from the freehold of 29 Montclair Drive. The registered title to the garden then passed through the ownership of several limited companies. On 7 June 2007 Harry Isaac Pitman was registered as proprietor of that freehold title. Mr. Crowe’s caution remained on the register, and I would assume that Mr. Pitman was aware of it or at least was on notice of it.

29.	 Mr. Pitman, whose family company may have been the previous owner of the garden, put it up for sale by auction. The auction brochure describes the garden as a former recreation ground which is now somewhat overgrown. It states that the site has a long road frontage to Dudlow Lane and a separate gated access of Montclair Drive. Tenure is stated to be freehold with vacant possession. The main photograph in a brochure does show an overgrown area in the foreground, but equally clearly shows the tennis court behind it. A net is visible on the tennis court.

30.	 Mr. and Mrs. Crowe became aware of the auction, and wrote to Mr. Hitman’s solicitors by letter dated 2 October 2007 drawing attention to the rights under their lease and to the fact that they exercised their rights regularly. The letter points out that sections of the garden are regularly mown during the summer period and their children regularly play in the area. In addition it is stated “the recently re-furbished tennis court is well used by ourselves and other residents in the area”. The letter goes on to point out that other residents in the area may well have similar rights to theirs, and asks that they should ensure that potential buyers were not misled. 

31.	 The auction special conditions made it plain that the garden was sold subject to the matters contained or referred to in the entries in the registers of title. An addendum available at the auction and dated 15 October 2007 specifically refers to a legal pack available for correspondence with regard to claimed rights of access and rights to use the property, including Mr. and Mrs. Crowe’s letter and other correspondence including correspondence from another local resident pointing out that residents of up to 92 properties had a right of access to the garden.

32.	 Evidence was given on behalf of the Respondent by its managing director and sole shareholder, Peter Burns. He stated in his witness statement that before bidding for the land at auction he had physically inspected the site. He walked around on the side of the site and saw that it was basically totally overgrown save for one or two areas where it appeared people may have walked and one area where there was a dilapidated tennis court. He described the tennis court as comprising one single court surrounded by wire meshing with asphalt surface and no outbuildings situated at the very rear of the site. The tennis court gate was left open, and the court looked as though someone had made some sort of effort to maintain it by cleaning leaves etc. In his witness statement, he stated that when he spoke to a representative of the sellers agents, he was led to believe that the seller himself had created these tennis courts and presumably had allowed people to use them, but that they did not belong to anyone other than Mr. Hitman the seller, although in cross-examination he said that the representative had only said that presumably that was the case and it was his assumption that somebody had allowed the tennis courts to be used.

33.	 In cross-examination, Mr. Burns also confirmed that he had had no involvement with the garden before the purchase, that he had inspected once with a friend, using the double gates on Dudlow Lane for access, and that he had gone 2 to 3 weeks before the auction and had been there for about 20 minutes at about 2pm. He had walked around the site following the path. He had noticed gates leading from people’s back gardens. He did not count them. He didn’t think anything of the gates being there. He didn’t think the residents would use the gates to access the land. He didn’t go behind 29 Montclair Drive because, he said, the pathway didn’t go there. He didn’t see the gate leading from 29 Montclair Drive. He remembered the middle section of the garden with the swing on the tree, the tennis court and the grass around it, and the grass area near the substation. He remembered the tennis court as dilapidated and scruffy. He was buying the plot for development, and the tennis court did not interest him. His idea was to put up a few telephone masts or something similar to create revenue. He could get about £4000 a year rental for a telephone mast.  He did not recall the site clearly.  He thought somebody had mown the grass and thought it was the owner.  He had the auction particulars at that stage.

34.	 When his attention was drawn to the addendum to which I have referred, he stated that he thought it got handed out on the day of the auction.  He had not gone to the auction but had sent somebody else to bid for him. His solicitors, who were only instructed after the purchase, had got the correspondence referred to in the addendum after the sale. Mr. Burns did not know where they got them from. The respondent had already paid a 10% deposit for the garden.

35.	 Following an unsuccessful complaint to the vendor’s solicitors, the respondent completed the purchase of the garden on 12 November 2007. When Mr. Burns discovered that the caution entered by Mr. Crowe was hindering the registration of the Respondent as owner of the garden, he caused the history of the site to be researched, and that research revealed that the 1927 ordnance survey map showed the garden as an open field.   

36.	 Mr. Burns made no attempt himself to contact Mr. and Mrs. Crowe and he accepted that it was possible that his solicitors first wrote to them only on 10 June 2008. He had not stopped anyone from using the land since he had bought it. He had visited it once a week since then, and it was in the same condition now as when he bought it. He denied changing the locks on the double gates onto Dudlow Lane, through which he would get access, and expressed surprise that Mr. Crowe had said that the locks had been changed. He had not used the entrance from Montclair Drive.

37.	I note that the Respondent’s solicitors first attempted to register the transfer to the Respondent, and also have the caution cancelled, on 21 April 2008 and that notice of this was given to Mr. Crowe on 9 May 2008.

The law and its application to the facts of this case
38.	It was held by the Court of Appeal, in Re Ellenborough Park, [1956] Ch 131, that the right to the full enjoyment of a collective garden of the neighbouring houses to the use of which it had been dedicated by the original vendors could be a legal easement. It was further held by the Court of Appeal in Jackson v Mulvaney, [2003] 1 WLR 360, that such an easement could be acquired by prescription. At paragraphs 23-25 of his judgement in the latter case, Latham LJ stated as follows:

	       “ 23. Clearly in the present case the first three characteristics have been met. As to the fourth characteristic, the Court of Appeal in In re Ellenborough Park held that an easement to use land as a communal garden was capable of forming the subject matter of a grant. However there is no doubt that there is a real difference between a case in which the easement claimed is said to have been the subject matter of an express grant, and one which is said to arise by reason of prescription or under s. 62 of the Law of Property Act 1925. In the former case, the issue is simply one of construction of the grant. And the court will undoubtedly lean in favour of the creation of an easement if the intention of the parties was clearly to that end. In the latter case, the court has the more difficult task of assessing the evidence as to alleged use in order to determine whether the claimed right has been established. But if it is clear from that evidence that use has been made of the land for the requisite period which is capable of amounting to an easement, it seems to me that a court should not be deflected from declaring the existence of an easement which can be sensibly formulated by the fact that, of necessity, its parameters may not be so clearly defined as they could be in a deed.
	
24. In my judgment, the findings of fact by District Judge Ashton are conclusive of the matter in the respondent’s favour. Even though the appellants had not themselves created or maintained the communal garden, the blue land had been used as such ever since the sale of the properties. The fact that the appellants had been content to allow the dominant owners over the years to determine the layout of the garden and to have maintained it themselves does not seem to me to derogate from the conclusion that they have been prepared to set aside this land for the use of the dominant owners as a communal garden. As District Judge Ashton himself recognised, this was a potential advantage to the appellants and their predecessors in title at the time that the properties were originally sold.
	
25. I am therefore satisfied that the facts found by District Judge Ashton were sufficient to justify both his and the Circuit Judge’s conclusions that the respondent was entitled to a right to use the blue land as a communal garden along with the other dominant owners. Those facts do not justify the conclusion that the right created by the established use excluded the appellants from any use which they might wish to make of the land. It restricted that use only to the extent necessary to ensure that the blue land as a whole could still be enjoyed by the dominant owners, and in particular the respondent, as a communal garden for recreational and amenity purposes.”

39.	 In my judgment, it is plain that over the years the freehold owners of the garden were prepared to set aside the garden for the use of the owners of the surrounding properties as a communal garden. In all probability, they did so in the belief that it had already been set aside under the various leases of those adjoining properties. They probably did not appreciate that under at least some of those leases the rights granted were void for perpetuity. It is also plain that Mr. and Mrs Crowe proceeded throughout on the basis that they had such a right. They took part in the management of the garden on that basis, and they and their family enjoyed of full use of the garden on that basis.

40.	As with any garden, they did not use the whole of it all the time, and there were times, especially in the winter, when they did not use it at all. Nevertheless, they clearly understood themselves to have the right to use it when they want to, and they did make full use of it. Mr. Hall, counsel for the Respondent, contended that wandering around woodland was not enough to put an owner on notice that a prescriptive easement was being asserted. It is not, of course, necessary that the user of the land should be on the basis that a prescriptive easement is being asserted. A person using a path for access to his home may be doing so without any belief that he has a right to do so, but, provided that he is doing so without force, without secrecy and without a licence, at the end of 20 years he will have acquired a prescriptive right to do so.

41.	 What is necessary is that the user should be such that an attentive owner is put on notice that the land is being used in such a way as is capable of being authorised by the grant of an easement for the benefit of a dominant tenement. It is unnecessary for me to consider at what point a casual use of the garden would have been sufficient to give rise to such a situation. It is abundantly clear in the present case that the use of the garden by the Crowes since 1986 has been more than enough for this purpose.

42.	 Nor does it appear to me, as a submitted by Mr. Hall, that any easement should be restricted to limited parts of the garden. No doubt the Crowes used the part of the garden closer to them far more than they used to the rest of it. But they undoubtedly did use the rest of it. Mr. Crowe walked all around the garden frequently. He took part in its maintenance. He attempted to create a flower garden in the middle. He helped reconstruct the tennis court. He was involved in the problems surrounding the pavilion fire. He and his family played tennis on the tennis court. Bonfires were held near the tennis court. His children played football on occasions near the tennis court as well. 

43.	There were areas of undergrowth into which none of them may have ventured. That does not appear to me to be relevant. Anybody who is enjoying the amenities of a garden or park is unlikely to venture into the depths of the shrubbery, but that does not mean that they do not have a right to enjoy the shrubbery as part of the garden. The owner of the garden could not destroy a large area of the shrubbery and erect a block of flats there on the basis that the right to enjoy the garden did not extend to that shrubbery.

44.	 It is plain that the right to use this garden is a right of considerable benefit to 29 Montclair Drive, and is capable of subsisting as an easement. It is also plain on the facts of this case that a prescriptive easement to enjoy the whole of the garden had arisen by, at the latest, some point in 2006. The manner in which the garden was enjoyed has varied over the years as the Crowes’ children have grown up, and as they themselves have grown older. They have however throughout acted, as should have been apparent to the owner, on the basis that they had the right to enjoy the whole of the garden as an adjunct to their home. This has included the maintenance of the whole garden, and the enjoyment of substantial areas in a wild or semi-wild state. It would as much interfere with their enjoyment of the garden as a garden if the owner were to develop by building upon the wilder parts of the garden as it would in another garden were he to build upon the shrubbery.

45.	 At one point, Mr. Hall submitted that the user was with permission.  No factual evidence was put forward to support this, and I refused an application in the course of Mr. Hall’s final submissions for an adjournment to try to persuade Mr. Hitman to give evidence. Quite apart from the fact that Mr. Hitman had only been the registered proprietor for a few months before the auction sale, there is no reason at all why a requisition notice could not have been sought to compel him to attend to give evidence if he was not otherwise willing to do so, and there was no suggestion in any event that he would in fact give evidence that he had consented, or that anybody else had consented, to such use by the Crowes.

46.	 It was also held in Bridle v Ruby, [1989] 1 QB 169, that where a claimant asserts a right in the mere belief (mistaken) that such rights has been conferred when it has not, this negative is any claim by prescription, be it by common law, the Act of 1832 or lost modern grant. User in an asserted that mistaken belief that it is justified on a right of limited duration, which belief is acquiesced in, cannot be made at the foundation of a grant of unlimited duration. As it was put by Ralph Gibson LJ in that case, at p.178E, for mistake as to the origin of the right asserted by the user to be relevant, it must be such as to be capable of affecting the way in which the user of the right is conducted by the claimant or in which that user is seen by the owner of the land over which the right is asserted. He also stated at p.178H that he saw no reason to attach any significance to the mere fact of such subjective mistakes as are not shown to affect the conduct of the claimant or the understanding of that conduct by the owner of the land over which the right is asserted.  Caulfield J agreed with Ralph Gibson LJ at p.179A.

47.	 There is no evidence here that the mistake affected the conduct of the claimant and there is no evidence as to how the owner of the land understood that conduct, if he or it was aware of it. I would add, that in the present case, if the owner had been aware of it, and had stood by and permitted Mr. and Mrs. Crowe to act as they did, particularly if that awareness had existed before they bought their property, but also in relation to all the acts of management over the garden, an estoppel may very well have arisen precluding the owner from denying the rights which Mr. and Mrs. Crowe understood that they had.

48.	Mr. Hall’s final point was that the caution protected an express easement rather than a prescriptive one, and that a purchaser with notice of a void express easement cannot and should not be treated as having notice of a different prescriptive one. It appears to me that there is a twofold answer to this:

(1)	All that the register contains is a caution. This entitled Mr. Crowe to be notified of any dealing with the registered land. It did not provide the prospective purchaser with any information as to the nature of the right asserted by Mr. Crowe.
(2)	 Under Schedule 3, paragraph 3, to the Land Registration Act 2002, a legal easement is an overriding interest.  A prescriptive easement is a legal easement. It is true that there is an exception where that easement is not within the actual knowledge of the person to whom the disposition is made, and would not have been obvious on a reasonably careful inspection of the land over which the easement is exercisable. In this case, however, it appears to me that on a reasonably careful inspection of the garden, it would have become apparent that there was a track leading to a gate at the back of 29 Montclair Drive which was in use, just as there were tracks leading to other gates at the back of other properties. It may be that this would have been sufficient to make it obvious that there was an easement for the purpose of this exception, but in any event, the Respondent had actual notice of the claim by the date of the disposition, 12 November 2006. Further, the exception does not apply if a person entitled to the easement proves that it has been exercised in the period of one year ending with the day of the disposition. In the year leading up to 12 November 2006, the easement was repeatedly exercised by both Mr. and Mrs. Crowe. Indeed, Mrs Crowe’s evidence was that they had used the garden more than usually in 2007 because of the effect on their private garden of the extension they had been having built that year.

49.	 I therefore conclude that the Respondent acquired the garden subject to a prescriptive easement on the part of Mr, and Mrs. Crowe as proprietors of 29 Montclair Drive to use and enjoy the garden as a communal garden for recreation leisure and amenity purposes. On the basis of this conclusion, the parties are agreed that I should direct that the Chief Land Registrar enter a notice of this easement against the title to the garden and I therefore give the direction set out in paragraph 1 of this decision.

Dated this 11th day of June 2010

By Order of The Adjudicator to HM Land Registry