REF/2008/1438

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
KHALIFA HOLDINGS AKTIENGESELLSCHAFT

APPLICANT

and

JACQUELINE WAY

RESPONDENT

Property Address: Land on the South East Side of Coppins Lane, Iver

Title Number:BM328013 and BM55726

Before: Mr Michael Michell Deputy Adjudicator to HM Land Registry

Sitting at: Victory House, Kingsway, London

Applicant Representation: Mr Oliver Radley-Gardiner, counsel, instructed by Cobbetts
Respondent Representation: In person

___________________________________________________________________________

DECISION
___________________________________________________________________________

RECTIFICATION OF REGISTER -  ADVERSE POSSESSION – WHETHER NOTICE OF RESPONDENT’S APPLICATION GIVEN TO APPLICANT – LAND REGISTRATION RULES 2003 R.198 – POSSESSION - PERMISSION   

Cases referred to
Powell v. McFarlane (1977) 38 P & CR 452
Prudential Assurance Co Limited v Waterloo Real Estate Inc  [1999] 2 EGLR 85
 J.A. Pye (Oxford) Ltd. v. Graham [2002] UKHL 30 

1.	Mrs Jacqueline Way applied on 27 May 2007 to be registered as proprietor of a field (the Field”) on the south east side of Coppins Lane, Iver being part of the land comprised in title number BM55726.  Mrs Way applied for registration as a person having been in adverse possession of the field under paragraph 1 of Schedule 6 of the Land Registration Act 2002.  The application was completed and the land was removed from BM55726 and registered under BM323013.  Mrs Way was registered as proprietor with title absolute.  Khalifa Holdings Aktiengesellschaft (“Khalifa”) was at the time of Mrs Way’s application and is now the registered proprietor of BM55726.   Khalifa claims not to have received notice of Mrs Way’s application for registration.  On 11 August 2008 Khalifa applied for alteration of the register of BM323013 under paragraph 5 of Schedule 4 to the Land Registration Act 2002 on the basis that Mrs Way had not acquired title to the field by adverse possession and that the field should be reinstated in title number BM55726.  Mrs Way objected to the application on the grounds that she did acquire title to the field by adverse possession.  The dispute was referred to the Adjudicator to HM Land Registry.

2.	I inspected the field accompanied by Khalifa’s representatives and Mrs Way.  

Mrs Way’s case
3.	Mrs Way’s case is that she has continuously grazed horses in the Field since 1983.  Additionally, Mrs Way says that she has maintained the field boundaries and undertaken regular weed killing and chain harrowing.  In her Statement of Case, Mrs Way alleged that she had continuously used the field as a horse riding arena with jumps; that she held picnics and barbeques in the field; that she undertook general hedging; and that she removed items dropped in the field by fly tippers      

Khalifa’s Case
4.	Khalifa’s case is that the register should be rectified under Schedule 4 paragraph 5 to the Land Registration Act 2002 to correct a mistake.  It is said that there is a mistake because (a) Khalifa was never notified of the application and (b) Mrs Way has not been in adverse possession of the field.

Notice of the Application
5.	HM Land Registry sent notice in form B107 dated 27 September 2007 of Mrs Way’s application to be registered with title to the field addressed to “Khalifa Holdings Aktiengesellschaft Coppins Iver Bucks”.  That was the address that was shown on the proprietorship register of title BM55726.  Khalifa says that it did not receive this notice and points to the lack of details in the address, being the omission of the road name and the lack of any postcode.

6.	There is a factual issue as to whether or not a representative of Khalifa did in fact receive the notice.  Mrs Way does not accept that the notice was not received.  Mr Hirst, the current estate manager employed by Khalifa gave evidence that post sent to Coppins is delivered to a wooden post box close to the back gate adjoining Coppins Lane.  It is his duty to monitor the post and deal with it.  Every morning either he or his wife would collect the post.  He did not recall ever receiving a letter from HM Land Registry in September or October 2007.  He would open utility bills but not open a letter addressed to Khalifa or to the Rubaya family.  However, he would have noticed if he had received a letter with the Land Registry address and details printed on the envelope and he did not notice any such letter prior to the making of the present application by Khalifa.

7.	Mr Way gave evidence that he was visited by Mr Hirst at his business premises at Bangors Park Farm in about mid-November 2007.  Mr Hirst mentioned to him that a letter from the Land Registry had been received at Coppins and that he had discussed it with Khalifa Muhairi.  He had been asked to go to the “Town Hall” to try to identify the land to which the letter relates and establish whether it belonged to the estate.  Mrs Way submits that the letter Mr Hirst spoke about was the notice of her application.

8.	Mr Hirst gave very different evidence about his conversation with Mr Way.  He said that he visited Mr Way at his workshop in October 2007.  He had been asked by Khalifa Al-Muhairi to visit Mr Way because he had been told by Steven Christopher that Mr Way had been paying rent for the Fields.  He said that he had not met Mr Way before but was directed to him by another man at Bangors Hall Farm.  He spoke to Mr Way and asked him about the ponies and Mr Way told him that he had previously paid rent to Donald Christopher to graze ponies in the Field. Mr Hirst asked Mr Way if there was any written agreement documenting the arrangement and Mr Way confirmed that there was no such written contract.  Mr Hirst asked Mr Way if he would be willing to sign an agreement documenting any grazing rights he thought he had and Mr Way said he had no problem in signing an agreement.  

9.	Mr Way denied that he had told Mr Hirst that he paid Donald Christopher any money.  
Mrs Way said that she heard the conversation but in cross-examination, she said she was in the kitchen, poked her head around the corner and didn’t hear everything.   

10.	As regards the conversation, I prefer the evidence of Mr Hirst.  Having seen Mr Way and Mr Hirst give evidence, Mr Hirst appeared to me to be the more reliable witness.  As Mrs Way’s husband, Mr Way has an obvious interest in the outcome of the proceedings.  Mr Hirst has no obvious financial interest in the outcome of these proceedings.  There was no suggestion that his employer blamed him for Mrs Way having obtained registration of the Field so I have no cause to think that he would give false evidence in order to preserve his job.  Further, Mr Way’s account seems to me to be less plausible than Mr Hirst’s account.  If Mr Hirst received notice of the application from HM Land Registry he would have known from the notice to what land it related and that Khalifa was the registered proprietor.  There would have been no reason for him to be told to go to the town hall to see what the land was and whether Khalifa owned it.   

11.	I accept that Khalifa did not in fact receive the notice sent by HM Land Registry.  It is not uncommon for letters to be lost in the post.  I have rejected the evidence of Mr Way as to his conversation with Mr Hirst in October 2007.  I accept the evidence given for Khalifa that it was not in fact received. There is no real evidence to outweigh the evidence of Khalifa Al-Muhairi and Mr Hirst that the notice was not received.  

12.	Mr Radley-Gardiner, counsel for Khalifa submitted that as notice was not received then it was not given as required by the provisions of Schedule 6 of the Land Registration Act 2003.  I consider that notice was given. Schedule 6 paragraph 2 (1) of the Land Registration Act 2002 provides that the registrar must give notice of an application under paragraph 1 to the proprietor of the estate to which the application relates.  The schedule is silent as to the effect of the registrar not having given notice. Rule 198 of the Land Registration Rules 2003 provides that the registered proprietor of a registered estate must give the registrar an address for service to which all notices and other communications to him by the registrar may be sent.  The address for service must be a postal address, whether or not within the United Kingdom.  Rule 315 of the Land Registration Rules 1925 provided that the address of any person, as entered on the register, should, unless he should otherwise direct, be his address for service.  In the case of land registered prior to the coming into effect of the Land Registration Rules 2003, I consider that where there is an address for the proprietor on the register, that remains his address for service unless and until he provides a new address to the registrar.  By allowing his address to remain on the register as it was prior to the coming into force of the 2003 Rules, the registered proprietor can be said to have provided that address to the registrar as his address under Rule 198 of  the 2003 Rules.  Rule 199(1) provides that all notices which the registrar is required to give may be served by post to any postal address in the United Kingdom entered in the register as an address for service.  Rule 199(4) provides that service of a notice served in accordance with rule 199 shall be regarded where served by post to an address in the United Kingdom as having taken place on the second working day after posting.  The effect of rule 198 of the 2003 Rules is in my judgment that where the registrar posts notice of an application to the address shown on the register as the address of the registered proprietor, he is to be regarded as having given notice on the second working day after posting.  It was not disputed that the registrar had posted notice to Khalifa at the address shown for it on the register.  The registrar did give notice as required by Schedule 4 paragraph 2.    

13.	It was submitted by Mr Radley-Gardiner that if the notice was not received then it was not served and accordingly that the alteration to the register should not have been made.  I consider it is important to keep in mind that the application made by Khalifa that I have to consider is an application to rectify the register under Schedule 6 paragraph 4.    Although the argument was not put in quite these terms, I consider that the essence of Mr Radley-Gardiner’s argument was that the registration of Mrs Way as proprietor of the Field where notice was not served on Khalifa was a mistake and that the registrar should rectify the register under paragraph 5 of Schedule 4 to correct that mistake.  I have found that notice was given to Khalifa and accordingly, I find that there was not a mistake of the type relied on by Mr Radley-Gardiner.  However, even if there was a mistake of that type, I would not consider it right to order the registrar to rectify the register in this case.  Mrs Way is presently the proprietor in possession of the Field.  Mrs Way did not cause or substantially contribute to the mistake that was the alleged failure by HM Land Registry to give notice to Khalifa.  Accordingly, under paragraph 6(2) the register may not be altered without her consent.  Further, I consider that it would not be right to direct alteration of the register on the sole ground that notice was not served on Khalifa if Mrs Way establishes on the facts that she was in adverse possession for a period of 12 years prior to 13th October 2003 such that she would have been entitled to rely on the transitional provisions in Schedule 12 to paragraph 18 to the Land Registration Act 2002 and to be registered as proprietor of the Field.  Although by paragraph 6(2) the registrar is required to approve an application for alteration of the register under paragraph 5 of Schedule 6 if he has power to make the alteration, he need not do so where there are exceptional circumstances which justify not making the alteration.  If Mrs Way were to establish that she was in adverse possession of the Field such that she was entitled to be registered as proprietor of it then I consider that exceptional circumstances justifying note rectifying the register would be made out.       

Acts by Mrs Way on the Field
14.	It is not in dispute that Mrs Way has grazed horses in the Field since 1983.  Mrs Way’s account of how she came to use the field is as follows.  She noticed two ponies in the field in very poor condition.  One was a Palamino and the other was a Chestnut.  She knew Donald Christopher, the estate manager at Coppins, who was a friend of her father-in-law.  She commented to him about the very poor state of the two ponies. He advised her that the ponies had not been ridden for a long time and that he was worried the RSPCA might become involved.  Mrs Way said that she would take the ponies if the owners were no longer interested in them.  Mr Christopher agreed to her taking them.  Mrs Way took the horses to her stables at Bangors Park Farm in order that they could recuperate under close supervision.  In order to make room, she took two of her own horses from the stables and put them in the Field.  These ponies were a black and a bay.  Thereafter, she continued to graze her own horses in the Field.   

15.	There was other evidence that Mrs Way had grazed horses in the Field.  Her husband, Mr Frank Way, said that his wife had allowed her ponies to occupy the Field since before he and Mrs Way were married in 1993.  There was evidence from a number of friends of Mrs Way, who had ridden horses with her. Cindy Seymour said that Mrs Way had kept her horses on the Field for about the last 20 years.  She had often been on the land with Mrs Way tending to and riding the horses.  Jade Bench had ridden and looked after Mrs Way’s horses on the Field since she was 12; she is now 30 years old.  Karen Stokes said she was aware that Mrs Way had been in possession of the Field for about the last 25 years.  She used to meet up with Mrs Way at the Field and they would go hacking together. Pamela Smith said that for at least the last 25 years she had been aware that Mrs Way had horses in the Field.  She had only seen Mrs Way’s horses and sheep in the Field.  Nina Heppelthwaite said she knew Mrs Way had been occupying the Field for well over 20 years.  Further, there was the evidence of Mrs Rixon who was called by the Applicant.  Mrs Rixon had rented Coppins Farm in 1975.  When the Applicant bought Coppins (including Coppins Farm) in 1977, Mrs Rixon came to an agreement with the Applicant for her to occupy Coppins Farm and surrounding fields, including the Field for an annual fee of about £2,000.  The fee rose to £4,000 by 2002 when she ceased occupying Coppins Farm and the land.  She recalled that two ponies were grazed in the Field from 1977.  The ponies were missing in 1983 but were quickly replaced with two other ponies.  Mrs Rixon says that she was told by Mr Christopher that these were the Applicants’ ponies but she learned in 2008 that they were in fact Mrs Way’s ponies.  Mrs Rixon did not taken issue with the ponies being in the Field because it was part of her arrangement with the Applicant that it could continue to keep its own animals on the land.  She had horses, cattle and sheep in the Field for about a year after Mrs Way’s ponies arrived but she had to keep her animals out of the Field after one of Mrs Way’s ponies had injured one of her ewes and a lamb so badly that they had to be destroyed.      

16.	Mrs Way also said that she rode horses in the Field and put up jumps for the horses.  .. Cindy Seymour, Jade Brench and Pamela Smith all gave evidence that they had ridden horses with Mrs Way in the Field and at Mrs Way’s invitation.

17.	Mrs Way also said that she kept sheep in the Field.   Pamela Smith said that she had dipped Mrs Way’s sheep. Mrs Rixon said that she had seen sheep on the land but that she said these were sheep purchased for the Al Muhairi family by Mr Christopher and slaughtered at Coppins.

18.	Mrs Way said that in 1983 she cut back brambles to open up a previously grown in gateway from the lane into the Field.  Mrs Rixon said that gateway was put in in about 1989.  Mrs Way said that she kept the gate locked.  Mrs Way was cross-examined as to why she had not stated in either her statutory declaration or in her witness statement that she had not locked the gate.  Mrs Way’s only explanation was that she had not thought to include it.  However, Mrs Rixon assumed in her evidence that the gate would have been locked.  Mrs Way said that she needed to lock the gate to safeguard her horses.  

19.	Mrs Way said that she had the Field “topped” on a regular basis, that is that she has had the tall grasses and weeds cut with a machine pulled behind a tractor.  Mrs Rixon said that the Field was topped by Pauline Anderson.  She assumed this was done on Mr Christopher’s instructions but had no personal knowledge of this.  Mrs Way said that she used Pamela Smith’s father to top the Field 2 or 3 times a year except in the last 6 years when she used other contractors.  Pamela Smith confirmed in her evidence that her father used to top the Field.  Karen Stokes gave evidence that she had seen the Field being topped and that Mrs Wray had told her on occasions that they could not ride in the Field because it was being topped.   

20.	As to fencing, Mrs Way made the general statement in her witness statement that she maintained the fences around the Field.  In cross-examination, she said that she put wire on top of the metal estate fencing on the boundary between the Field and the lane.  Mrs Way also said that she allowed the bushes between the fence and the lane to grow up so as to produce a thicker barrier.  Mrs Rixon said that she did not recall seeing Mrs Way put up any fencing.

21.	Additional things that Mrs Way said she did on the field were picking blackberries and sloes; erecting electric fences to divide the Field into paddocks; removing ragwort. Mr Way and Mr Way both said that they had barbeques in the Field and camped there on occasions.

Activities by the Rubaya family on the Field
18.	Mr Shaheen Rubaya Al Muhairi said that he rode a quad bike around the Field.  He started to ride the quad bike at some time between 1982 and 1984.  He had owned bikes from then and throughout the 1990s.  He was at Coppins for 2 to 3 months nearly every year in the summer and between 1996 and 2000 he studied at Brunel University, living at Coppins for most weekends.  He got into the Field by driving across the top field and going through the interconnecting gate.  Mrs Way accepted that he drove the quad bike into the Field on one occasion while she had her horses on it but Mr Al Muhairi said that he went into the Field on many occasions.

Basis on which Mrs Way was using the Field
19.	Mr Hirst, the estate manager of Coppins appointed to replace Mr Donald Christopher, gave evidence that some time after May or June 2007 he had spoken to Donald Christopher’s son Steven. Steven Christopher had confirmed to him that the ponies in the Field belonged to Mrs Way and told him that Donald Christopher had collected rent from Mrs Way relating to her occupation of the Field and had “put the money in his back pocket to pay the bills at the Coppins estate”.  No witness statement made by Mr Steven Christopher was served and he was not called to give evidence.  No explanation was given as to why he was not called.  The Applicant produced no evidence of Mr Donald Christopher ever having accounted to the estate for any rent collected for occupation of the Field.  Mr Hirst also gave the evidence to which I have referred above that Mr Way told him at a meeting in October 2007 that he had paid rent to Mr Christopher.  

20.	Mrs Way’s evidence was that at no stage had she paid or been asked to pay for the use of the Field. Donald Christopher was a friend of Mr Way’s father.  Mrs Way knew Donald Christopher was the estate manager.  He asked her if she would dispose of the ponies and she agreed.  She then simply put her own horses in the Field to make room in her yard for the ponies she had taken over at Mr Christopher’s request.  Mrs Way said that Mr Christopher knew Mrs Way was using the Field but he did not say either that she could use the Field or that she could not.  Mrs Way said that she had been given some dirty looks by Mrs Rixon when she started using the Field and had mentioned this to Donald Christopher.  He had told her not to worry about it and gave her the impression Mrs Rixon was upset because she had been denied a tenancy of the Field.  She said in cross-examination that Mr Christopher was saying “Don’t worry about her.  She doesn’t own the Field”.  

22.	Mrs Way also gave evidence that in about 2000 when Mrs Rixon appeared to have stopped farming the estate land, she asked Donald Christopher if she might be able to take over farming the estate land.  Donald Christopher told her that she could not because even though Mrs Rixon had given up farming the land, she was still the tenant and he could not let her use the fields Mrs Rixon was renting.

23.	Sir Richard Buckley said he was told by Donald Christopher he was allowing the Way family to graze their horses in the Field on a casual basis.  This conversation took place in the last quarter of 2002.  The context of the conversation was as follows; Sir Richard Buckley had seen horses on Coppins estate land and had told Mr Christopher about them.  It was subsequently while he was out walking his dog that Sir Richard met Mr Christopher and had the conversation he gave evidence about.           

Was Mrs Way in possession of the field?
The Law
19.	Possession for the purposes of the law of adverse possession has been defined as “possession in the ordinary sense of the word” in J.A. Pye (Oxford) Ltd. v. Graham at paragraph 39 and paragraph 42.  Possession in its ordinary sense requires two elements: (1) a sufficient degree of physical custody and control (“factual possession”) and “(2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”) - J.A. Pye (Oxford) Ltd. v. Graham at paragraph 40.   
What is meant by “factual possession” is set out in a well –known passage from the judgment of Slade J. in Powell v. McFarlane (1977) 38 P & CR 452, at 470-471 –
“Factual possession signifies an appropriate degree of physical control. … The question what act constitutes a sufficient degree of exclusive physical control must depend on the circumstances, in particular that nature of the land and the manner in which the land of that nature is commonly used or enjoyed…. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has”.
As to the intention to possession there must be an actual subjective intention to possess and that intention must be manifested by unequivocal action – see Prudential Assurance Co Limited v Waterloo Real Estate Inc  [1999] 2 EGLR 85 at 87.
	
20. 	I am satisfied that Mrs Way was in factual possession of the Field.  I accept that the use she made of the Field was more than simply grazing horses on it.  Mrs Way also rode horses in the Field; she invited friends to ride horses with her in the Field; she put up jumps in the Field.  Mrs Way’s evidence that she used the Field in this way is support by the evidence of the various friends and riding companions she called.  I have no reason to doubt the veracity of these witnesses.  It is further supported by various photographs Mrs Way produced.  These were obviously taken at different times and show horses in the Field, including horses being ridden over jumps.  I also accept that Mrs Way erected electric fences to divide the Field into paddocks and she took care of the Field by having it topped and by doing some work to hedges.  Mrs Way would have looked after the hedges to ensure her horses did not escape.   I also accept that Mrs Way locked the gate in order to safeguard her horses; given that Coppins Lane leads onto a busy road and that Coppins is on the outskirts of a built up area just outside the M25, I consider that Mrs Way would have locked the gate in order to safeguard her horses.  I also accept that Mrs Way renewed the padlock from time to time, keeping the keys to the padlocks.  I do not accept that Shaheen Al Muhairi drove his quad bike around the Field except on very odd occasions, such as the occasion when he drove it into the Field when Mrs Way was present and the gate from the Lane was open.  His driving the quad bike into the Field on odd occasions was not such as to prevent Mrs Way being in possession.      	
		
21.	I am also satisfied that Mrs Way had the intention to possess the Field.  Mrs Way’s actions on the Field demonstrate unequivocally that she intended on her own behalf to exclude the world at large, including the Applicant, so far as reasonably practicable. 

Was Mrs Way on the Field with permission?
22.	It was submitted on behalf of the Applicant that I should find Mrs Way used the Field with the express permission of the Applicant given through its agent, Mr Christopher.  In the alternative, it was submitted that I should find that Mrs Way used the Field with the implied permission of the Applicant.

Express Permission
23.	I am satisfied that Mrs Way used the Field with the express permission of Mr Donald Christopher.  That permission was permission he gave as manager of Coppins and so was permission given on behalf of Khalifa.  This finding is based on the following evidence.  There is the evidence of Mr Hirst that Mr Way told him in October 2007 that he had been paying rent to Donald Christopher for grazing the horses in the Field.  Mr Way would have had no reason to tell Mr Hirst that if it was not true.  I consider that what Mr Way said is evidence that Mr Donald Christopher gave Mrs Way permission to use the Field.  There is also the evidence of Sir Richard Buckley that Donald Christopher told him he was letting Mrs Way use the Field.   The evidence to set against this evidence is the purely self-serving evidence of Mr and Mrs Way that Mrs Way was not given permission.  It is in my judgment, wholly probable that Mr Christopher would have given Mrs Way consent to use the Field after she agreed to take over the Khalifa ponies.  It is wholly improbable that as the estate manager, he would have simply stood by and said nothing if Mrs Way had moved her horses into the Field without his permission.  It is also wholly improbable that Mr Christopher would have stood by and said nothing while Mrs Way began to use the Field for horse jumping and by putting up electric fences and by locking the gate unless he had given her permission to use the Field.            	    

Rectification
24.	As I have found that Mrs Way was in possession of the Field with the permission of Khalifa, the registered proprietor, Mrs Way was not in adverse possession of the Field.  She should not have been registered with title to the Field and accordingly, there is a mistake on the register.  However, as Mrs Way is the registered proprietor and is in possession of the Field, the registrar has no power to alter the register to correct the mistake unless one of the conditions of Schedule 4 paragraph 6(2) is made out.  These are
(a) that Mrs Way has by fraud or lack of proper care caused or substantially contributed to the mistake or
(b) it would be for any other reason unjust for the alteration not to be made.
Mrs Way’s application for registration was supported by statutory declarations made by her on 12th March and 26th April 2007 and by a statutory declaration made by Cindy Victoria Seymour on 12th March 2007.  Nowhere in the declarations was it stated that Mrs Way had been given permission to use the Field.  The failure by Mrs Way to inform the Land Registry that she had the permission of Khalifa to use the Field amounts to, at best, a lack of proper care on her part.  If she had done so, her application would not have succeeded.  Accordingly, I find that Mrs Way caused or substantially contributed to the mistake on the register by a lack of proper care.

Conclusions
25.	I shall direct the registrar to give effect to the application of Khalifa to rectify the register.  Although Mrs Way was in possession of the Field from about 1983, she was in possession with the permission of the registered proprietor.  Mrs Way should not have been registered as proprietor of the Field.  As Mrs Way caused or contributed to the mistake, the registrar has power to rectify the register and by paragraph 6(3) of Schedule 4 to the 2002 Act is required approve the application for rectification.

Costs
26.	My preliminary view is that Mrs Way should pay Khalifa’s costs of the proceedings.  It is just that costs should follow the event.  As Mrs Way has lost, she should pay the costs to be assessed on the standard basis if not agreed.  Any party who wishes to submit that some different order should be made as to costs should serve written submissions on the Adjudicator and on the other party by 5pm on 25th March 2010.

BY ORDER OF THE ADJUDICATOR

DATED this 11th day of March 2010