REF/2009/0844

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
SALLY HOSKING

APPLICANT

and

BRIAN HARDING

RESPONDENT

Property Address: 2 Island Street, Salcombe, TQ8 8DP

Title Number: DN498531

Before: Mr Michael Michell Deputy Adjudicator to HM Land Registry

Sitting at: Plymouth Magistrates Court

Applicant Representation: Mr Eric Cowshill, solicitor
Respondent Representation: Mr Mullis, counsel, instructed by Kagan Moss & Co.

__________________________________________________________________________

DECISION
__________________________________________________________________________

ALTERATION OF THE REGISTER –CONSTRUCTION OF CONVEYANCE – RECTIFICATION- WHETHER PROPRIETOR IN POSSESSION 

Cases referred to

St. Edmundsbury and Ipswich Diocesan Board of Finance v. Clark (No. 2) [1975] 1 WLR 468 
Jones v. Consolidated Anthracite Collieries Ltd. [1916] 1 KB 128 

Scotson v. Jones (1961), unreported

Powell v. McFarlane (1977) 38 P&CR 452

JA Pye (Oxford Ltd. v. Graham [2002] UKHL 30

1.	This case concerns the ownership of a passage (“the Passage”) leading from Island Street to Cottles Boatyard, Salcombe.   The Passage runs through a building owned by Mr Harding in the sense that the Passage is surrounded on both sides and above by the building owned by Mr Harding. The address of Mr Harding’s building is presently 2 Island Street.  It is common ground that the Passage is presently within the same registered title as Mr Harding’s building, being title number DN498531.  Mrs Hosking is the registered proprietor of Cottles Boatyard under title number DN146464.  Mrs Hosking applied to HM Land Registry on 12th June 1998 to rectify the title to 2 Island Street so as to remove the passage from that title and include it within the title to Cottles Boatyard.  Mr Harding objected to the application and the matter was referred to the Adjudicator to HM Land Registry for determination.

2.	I viewed the site on the afternoon of the day before the hearing.  Mr Harding’s building lies on the corner of Island Street and Thorning Street. Thorning Street is a street that runs at a right angle in a northerly direction from Island Street. Island Street runs approximately east-west.  Mr Harding’s building is on the north side of Island Street and the west side of Thorning Street.  It runs the whole length of Thorning Street.  There is a river at the north end.  Mr Harding’s building is a two storey building with a conventional pitched roof.  The pitch of the roof runs parallel with Thorning Street.  The first floor on the side adjoining Cottles Boatyard is covered with timber weather boarding.  There are a number of windows at first floor level in Mr Harding’s building, looking into Cottles Yard.  At least one of those windows is a casement window; when open the casements will occupy airspace above Cottles Boatyard.  Guttering runs along the side of Mr Harding’s building on the Cottles Boatyard side.  Cottles Boatyard is described on the Ordnance Survey plan forming the basis for the title plan as “Cottles Quay”.  It comprises in part buildings and in part an open yard.  It lies behind, that is to the north of, 4 and 6 Island Street.  It is bordered to the east by Mr Harding’s building.  Mrs Hosking uses Cottles Yard for the purposes of her retail business.  There is a lavatory in a building in a corner of Cottles Yard.  There are no lavatory facilities in Mr Harding’s building.  Mr Harding’s building is currently used as a retail shop and gallery. The only means of access to Cottles Boatyard from a street is through the Passage.  The Passage lies about half way along Thorning Street.  At the end of the Passage nearest the street, there are double wooden doors that can be closed so as to shut off the Passage from the street.  The doors are hung on a wooden door frame fixed to the walls on each side of the Passage.  There are no doors or gates at the other end of the Passage.  There is a window in the wall on the right hand side of the Passage when viewed from the street.  The window has been covered with a board on the inside.  A cable runs from Cottles Boatyard fixed along the side of the wall in the Passage.  

Mrs Hosking’s pre-registration title
3.	Mr Harding’s building, the passage and Cottles Boatyard were at one time in the ownership of HRH The Duke of Cornwall. Part of that area of land formed part of the parcel of land sold and conveyed on 7 March 1875 by the then Prince of Wales as Duke of Cornwall to Edwin Harnden.  The land conveyed by that conveyance was
	“ALL THAT piece of land lying on the North side of … Island Street and 		having a frontage on the said street of 70 feet (in the Lease hereinafter referred to 		erroneously stated to be 60 feet) or thereabouts and heretofore forming part of the 	foreshore… with the three dwelling houses and outbuildings …and now standing and 	being thereon as the same was with the premises distinguished by a pink color on the 	plan hereinafter referred to demised to the said Edwin Harnden for a term of 82 years 	from the 29th September 1866 by an Indenture of Lease bearing date 23rd July 1867 	and expressed to be made by His Royal Highness and Edwin Harnden which said 	piece of land expressed to be hereby conveyed abuts East part of Thorning Street and 	for the remaining part on the premises so as aforesaid distinguished by a pink color 	West on premises in the occupation of Elizabeth Freeby and North on Batson Creek 	aforesaid and delineated and more particularly defined on the Plan drawn in the 	margin of these presents being thereon distinguished  by a green border and (except 	as to the premises as aforesaid distinguished by a pink color) all and singular yards 	gardens lights ways paths passages waters watercourses …”   
The land conveyed to Edwin Harnden by this conveyance did not include the land shown coloured pink on the conveyance plan but that land is part of the land now within Mr Harding’s title.  

4.	By a conveyance dated 15th December 1892 Edwin Harnden conveyed to Henry Harnden 
	“All that piece of land with the Cellar thereon situate at the Island Salcombe now in 	the occupation of the said Henry Harnden which said piece of land is about forty feet 	in length and Twenty two feet in width and is bounded on the North by the Estuary, 	on the South and West by the property of Edwin Harnden and on the East by 	Thorning Street Together with the right of …. as mentioned in the Deed conveying 	the said piece of land from His Royal Highness the Prince of Wales to the said 	Edwin 	Harnden”.   
There is no plan to this conveyance so it is difficult to identify the land conveyed.  It may have been or included the land coloured pink on the plan to the 1875 conveyance.  It is not however a conveyance of all the land within Mr Harding’s title since it is a conveyance of land “bounded …on the South … by the property of Edwin Harden” and not of land bounded on the south by Island Street.   

5.	On 29 September 1923 the personal representatives of Henry Harnden conveyed to John Field 
	“All that messuage or dwellinghouse formerly known as Number 27 Island Street but 	now known as Number 26 Island Street in the Town of Salcombe in the County of 	Devon and now in the occupation of the Purchaser Together with the Court and all 	other the premises heretofore enjoyed with the said Dwellinghouse and the joint use 	of the water tap in the Court which is to belong jointly between the Purchaser and the 	owner of number 27 Island Street aforesaid Together with a right of way for the  	Purchaser his heirs and assigns as owner or owners for the time being of the said 	Dwellinghouse and his and their tenants and servants and all other persons 	authorized in that behalf by him or them from time to time and at all times hereafter 	at his and their will and pleasure for all purposes connected with the use and 	enjoyment of the said Dwellinghouse hereby conveyed in common with the owners 	of the adjoining hereditaments to pass and repass in along and over the passage 	leading from Thorning Street to the back of the said Dwellinghouse And also a right 	in common with the owner of the adjoining hereditaments and premises known as 	numbers 27 and 28 Island Street to the use of the Rain Water Tank which is situate in 	the said passage And also ALL that shipbuilding Yard at the back of the said 	hereditament and premises intended to be hereby conveyed and other hereditaments 	which said Yard is approximately One hundred and five feet by forty feet and was 	formerly in the occupation of the said Henry Harnden deceased with the entrance to 	the yard from Thorning Street and passage under the beams of the loft above the 	property of the said Adams Hannaford …”   

6.	On 24 June 1948 John Field conveyed to Peter and Leslie Cottle 
	“ALL THAT Yard or Quay (formerly described as a Shipbuilding Yard) situate at 	the rear and on the North side of premises known as  Numbers 4 and 6 (formerly 	numbers 27 and 26 then 26 and 27) Island Street Salcombe in the County of Devon 	which said Yard or Quay measures in length from North to South one hundred and 	five feet or thereabouts and has a frontage on the North side thereof to the waterside 	of thirty-two feet six inches or thereabouts and was formerly in the occupation of 	Henry Harnden (since deceased) but was lately in the occupation of the Vendor and 	is for the purpose of identification coloured pink on the plan hereto annexed 	Together with the right of entrance to the said Yard from Thorning Street and 	passage under the beams of the loft above now the property of Mrs Annie Hannaford 	which said passage is coloured brown on the said plan Together also with the stores 	or buildings now standing in the said Yard or Quay or on some parts thereof”.

	7.	The descent of title to Cottles Boatyard from John Field does not appear fully from 	the evidence but on 5th July 1983 Cottles Boatyard was registered at HM Land Registry 	under title number DN146464.  It would seem likely that the registration occurred on the 	transfer of Cottles Boatyard to Alexander Henry John Stone and Kathleen Dorothea Stone 	(“Mr and Mrs Stone”).  Mr and Mrs Stone were the proprietors on 22 March 1984 when 	they entered into a deed of grant with Mrs Elizabeth Harding, the then owner of Mr 	Harding’s building.  The property register of the title includes the following entry
	“The land has the benefit of the following rights granted by a Conveyance of 		the land in this title dated 20 September 1971 made between (1) Oliver 			Gabriel Rossetti and George Arthur Metcalfe (Vendors)  and (2) William 			Robert Northcott (Purchaser) :-
	Together with the right of entrance to the said yard from Thorning Street and 		passage under the beams of the loft above which said passage is coloured 			brown on the said plan”.
The title plan shows coloured brown the Passage, the subject of these proceedings. 	

8.	Mr and Mrs Stone transferred Cottles Yard to their daughters, Jane Starey and the Applicant, Mrs Hosking on 24th February 1988.  Mrs Hosking was registered as sole proprietor of Cottles Boatyard on 24th April 1998.     
     
Mr Harding’s pre-registration title
9.	  The land within Mr Harding’s title was conveyed by the personal representatives of Edwin Harnden to Arthur Frederick Halstead by a conveyance dated 14th July 1897.  The land conveyed was a rectangular area of land, bordered to the south by Island Street, to the east by Thorning Street.  It was the site of a house and outbuildings then known as 29 Island Street.  It seems to have been bordered to the west (at least in part) by a building then known as 25 Island Street.  The parcels clause included the following passage (I have shown in bold the two references to passages),
	“All that piece or parcel of land situate in the Parish of Salcombe … and bounded to 	the South side by Island Street on the East side by Thorning Street and on the North 	and West sides by the property of Mr Henry Harnden which said piece or parcel of 	land is delineated and colored pink on the Map or Plan drawn on the margin of these 	presents And also the messuage or dwellinghouse and outbuildings erected on the 	said piece or parcel of land and known as No 29 Island Street ….Together 	…Together with a right of way for the purchaser his heirs and assigns from the 	messuage or dwellinghouse hereby conveyed to that part of the Land hereby 	conveyed which is marked WC on the Map or Plan drawn on the margin of these 	presents over a piece of land situate on the West side of those parts of the Land 	hereby conveyed which are marked “Right of Way” and “WC” respectively on the 	said plan and which said last 	mentioned piece of land is delineated and colored 	green on the said Map or Plan Excepting and reserving unto the personage for the 	time being entitled to the Duchy of Cornwall all mines and minerals…And also 	excepting and reserving unto Henry Harnden his heirs and assigns as owner or 	owners for the time being of the messuages known as Nos 28 and 27 Island Street 	aforesaid … from time to time and at all times hereafter at his and their will and 	pleasure for all purposes connected with the 	use and enjoyment of the said last 	mentioned messuages a right in common with the Purchaser his heirs and assigns 	to pass and repass in along and over the passage 	leading from Thorning Street 	to the back of the said last mentioned messuages 	which said passage is shown  on 	the Map or Plan drawn on the margin of these presents and there marked “right of 	way” and also a right in common with the Purchaser his heirs and assigns to use the 	rain water tank situate on the land hereby conveyed…And also excepting and 	reserving unto the said Henry Harnden his heirs and assigns the passage under 	the beams of the loft at the back of the messuage hereby conveyed which said 	passage is shown on the Map or Plan drawn in the margin of these presents and there 	marked “Passage reserved” .”            
The parties agree that the Passage in issue in these proceedings is the passage shown marked “Passage reserved” on the plan to the 14 July 1897 conveyance.

10.	On 27th December 1916 Arthur Frederick Halstead executed a conveyance to Adams and Annie Hannaford.  That conveyance included the same description of the land conveyed as the description in the 14 July 1897 conveyance but omitted the words from “And also excepting and reserving”.

11.	Adams Hannaford died in 1938 and Annie Hannaford died in 1952.  The property conveyed on 27th December 1916 passed to Elizabeth Harding under the will of Annie Hannaford.  Elizabeth Harding died in 1986 and on 9th February 1987 her executors executed an assent in favour of Mr Harding.  Mr Harding was registered with title to the property on 13th July 2004. 

The Issues Arising
12.	It seems to me that the following issues arise
(1)	Whether the Passage was conveyed to Arthur Frederick Halstead by the 1897 conveyance;
(2)	If not, whether Mrs Hosking can show a paper title to the Passage; and
(3)	If Mrs Hosking can show a paper title to the Passage, whether the register should be rectified.  

Was the Passage conveyed to Arthur Frederick Halstead by the 1897 conveyance?
13.	Mr Cowshill, who appeared for Mrs Hosking, pointed to the difference in the 1897 Indenture between the wordings relating to the two passages.  He contrasted the words “Excepting and reserving unto Henry Harnden his heirs and assigns … a right in common with the Purchaser his heirs and assigns to pass and repass in along and over the passage” with the words relating to the piece of land in issue, namely “Excepting and Reserving unto Henry Harnden his heirs and assigns the passage under the beams of the loft at the back of the messuage hereby conveyed..”.  He submitted that the latter were words of delimitation rather than of reservation.

14.	Mr Mullis, counsel for Mr Harding, made four points as to the construction of the words of the 1897 Indenture relied on by Mr Cowshill.  
(1). Mr Mullis submitted that the words appear in that part of the document usually dealing with rights over land rather than ownership of land.  He submitted that the words were not used as part of the description of the land conveyed.
(2). Mr Mullis pointed out that the interpretation of those words as being a reservation of title would operate to create a flying freehold of the part of the building above the Passage.  He submitted that I should lean against a construction which produced a flying freehold.
(3). Mr Mullis submitted that a right of way was entirely adequate to serve the needs of Cottles Boatyard.
(4). Mr Mullis pointed out that there was no express grant in favour of the purchaser of rights to light or access over the Passage and that such rights would have been necessary if it had been intended that Edwin Harnden should have title to the passageway.  He submitted that the absence of the express creation of such rights is strongly indicative of there being no intention to exclude the passage from the property conveyed by the 1897 conveyance.  	 	 
Construction of the 1897 Conveyance
15.	The proper approach to the construction of a conveyance was set out in the judgment of the Court of Appeal in St. Edmundsbury and Ipswich Diocesan Board of Finance v. Clark (No. 2) [1975] 1 WLR 468 at 476
	“We feel no doubt that the proper approach is that upon which the court construes all 	documents, that is to say, one must construe the document according to the natural 	meaning of the words contained in the document as a whole, read in the light of the 	surrounding circumstances”.   
That is the approach I should adopt here but I must also have regard to the fact that some words in conveyances have a technical meaning.  It is right that I should have regard to the meaning of the phrase “excepting and reserving”.

16.	An exception is something excepted out of what is granted being actually in existence at the time of the grant, such as an exception of mines and minerals or timber trees. A technical definition of a reservation appears in the judgment of Scrutton J in Jones v. Consolidated Anthracite Collieries Ltd. [1916] 1 KB 128 at 135
	“I understand a reservation in its technical sense to be the regrant out of the subject- 	matter conveyed of something not previously existing, as a rent or an easement”. 
The editors of Emmet in Title describe a reservation as “some benefit to be newly created, that is, a reservation of a thing not in existence at the time of the grant”.   The use of the phrase “excepting and reserving” is not appropriate to introduce existing rights subject to which the property is conveyed; existing rights should be introduced by the phrase “subject to” placed after the habendum – see Scotson v. Jones (1961), unreported but noted in the Law Times Vol. 231 p. 187.      		     

17.	It is to be noted here that what is said to be “excepted and reserved” in respect of both passages mentioned in the 1897 Conveyance is expressed to be excepted and reserved 	“unto Henry Harnden his heirs and assigns as owner or owners for the time being of 	the messuages known as Nos 28 and 27 Island Street aforesaid”.   
There cannot be an exception or reservation properly so called to a third party.  An exception is something retained by the vendor and a reservation is a right newly created for the benefit of the vendor.  The wording in respect of the Passage is technically appropriate neither to the grant of a right of way to Henry Harnden nor to the conveyance of land subject to an existing right of way in favour of Henry Harnden nor to the exclusion from the land conveyed of the area of the Passage.  I can therefore derive no assistance from the use of the phrase “excepting and reserving” in the relevant part of the 1897 Conveyance. 

18.	In my judgment, the natural meaning of the words of the 1897 Conveyance is that the physical area of the Passage is not included in the land conveyed.  The contrast with the wording of the earlier exception of “a right in common with the Purchaser …to pass and repass” along a passage is striking.  The draftsman used the phrase “a right to pass and repass” where he was referring to a right of way.  It would be extraordinary if he did not use the same phrase if in relation to the Passage he intended to refer only to a right of way.  I accept that the words do not appear in the usual place for words limiting the physical extent of the land conveyed.  This is a point I take into account but it is in my judgment not sufficient to outweigh the clear contrast between the wording relating to the Passage and the express reference to a right to pass and repass in respect of the other passage.  I also accept that the words are not in the correct form for referring to land not included in the conveyance but neither are they words in the proper form to refer to a right of way already granted to a third party or intended to be granted to a third party.  The use of the phrase “excepted and reserved” shows that the draftsman was not strictly correct or careful in the technical language he used.  However, that he used the phrase “excepting and reserving” is not such as to lead me to consider that he would not have repeated the phrase “right to pass and repass” if he had been intending to convey the Passage but subject to a right of way.    I accept that on my construction of the conveyance, the effect is that a flying freehold of the building above the Passage is created but it is not entirely unusual for flying freeholds to be created by nineteenth century conveyances, notwithstanding the problems caused by the existence of flying freeholds.  I also accept that had the purchaser, Mr Halstead been carefully advised, he may have sought a grant of a right of access over the Passage and a right of light to the window to his building in the Passage if the Passage was not itself being conveyed .  However, I do not know what the facts on the ground were in 1897.  It may be that the window was even at that date not in use.  Further, I do not know if the vendor would have been in a position to grant such rights; he would not if he had already disposed of the Passage to Henry Harnden.  Whereas a clear grant of rights of light and passage over the Passage in favour of Mr Halstead would have provided a clear indication that the Passage was not included in the land conveyed, the absence of such an express grant does not in my view provide a clear indication that the Passage was included.            

Can Mrs Hosking show a paper title to the Passage?
19.	Mrs Hosking has not produced any document showing the conveyance of the Passage to Henry Harnden.  The Passage was not conveyed by the conveyance dated 15th December 1892.  Mrs Hosking relies as his root of title on the conveyance by the personal representatives of Henry Harnden to John Field dated 29th September 1923, which includes the conveyance of “the entrance to the yard from Thorning Street and passage under the beams of the loft above the property of the said Adams Hannaford”.  I am satisfied that those words were sufficient to convey the area of the passage itself to John Field.  The conveyance is a sufficient root of title.  It is not necessary for the Applicant to produce the conveyance of the Passage to Henry Harnden.   However, counsel for the Respondent submitted that even if the Passage had been conveyed to John Field, it was not conveyed by John Field to Mr and Mrs Cottle by the 1948 conveyance.  The relevant words of that conveyance are
	“Together with the right of entrance to the said Yard from Thorning Street and 		  passage under the beams of the loft above now the property of Mrs Annie 	 	  Hannaford”.
There is a striking difference between the words in the 1923 conveyance to John Field and the words of the 1948 conveyance, which include the words “the right of” inserted before “entrance to the said yard”. It was submitted that the words “Together with the right of” qualified both the entrance and “passage” so that what John  Field was doing was granting a right of way over the Passage but not conveying the physical area of the Passage.  While I can see some attraction in this argument, I do not consider it is the correct construction.  In construing the 1948 conveyance, I have to take into account as part of the factual background, the fact that the Passage was conveyed to John Field in 1923 and that he was by the 1948 conveyance, conveying all the land to which access could be gained from the Passage.  There is no evidence that John Field conveyed away the Passage between 1923 and 1948.  In the absence of such evidence, I should proceed on the basis that he owned the Passage at the time of the 1948 conveyance.  There was no obvious reason for John Field to retain title to the Passage and grant a right of way over it where he was conveying all the land to which the Passage provided access.  Indeed, to retain the Passage in those circumstances would involve retaining something which was of no benefit but could be a burden.   Against that background, the correct construction of the 1948 conveyance is in my judgment that by the words “Together with …passage under the beams...” it conveyed the Passage and not merely a right of way over the passage. 
 
Should the register be altered?
20.	It was accepted that if the Passage did not form a part of the land conveyed to Mr Harding’s predecessors in title then there was a mistake on the register.  It was also accepted that alteration of the register to remove the Passage from Mr Harding’s title would prejudicially affect the title of Mr Harding.  Accordingly, the alteration would be a rectification of the register within the meaning of paragraph 1 of Schedule 4 to the Land Registration Act 2002.  I should not direct rectification of the register without Mr Harding’s consent if the Passage was at the date of the application for rectification in his possession unless one or more of the conditions of paragraph 6(2) of Schedule 4 of the 2002 Act are met.  

21.	There is a dispute between the parties as to whether Mr Harding is in possession of the Passage.  Section 131(1) of the 2002 Act provides that land is in the possession of the proprietor of a registered estate if it is physically in his possession. Section 131(2) provides that land in the possession of a tenant is to be treated for the purposes of section 131(1) as in the possession of the landlord.  Mrs Hosking’s evidence was that she replaced the doors at the Thorning Street end of the Passage in 1998.  At that time she changed the lock on the doors but she did not change the lock again between then and 2004. On 5th July 1998 Mrs Hosking wrote to tenants of Mr Harding, Mr Paul and Mr Martins enclosing a key for the doors and saying that she was happy for them “to continue to use the WC facilities on a gratuitous licence” and asking “that you use the WC for your personal use only”.   On 26th April 2004 Mrs Hosking and Mr Harding signed a licence agreement.  By the agreement Mrs Hosking licensed Mr Harding to erect use and remove scaffolding on a part of Cottles Yard for the purpose of re-slating the roof of Mr Harding’s building and also to use the Passage “to bring scaffolding and slates into the [Yard] and to remove slates from the western slope only using the access doors from Thorning Street only”.  It was a term of the Licence than Mr Harding would keep the doors against Thorning Street locked except when in use.  

22.	       Mr Harding gave evidence that he had a key to the lock in the doors at the Thorning Street end of the passage.  He said that he used the key to gain access to the Passage when he needed to check timbers and to paint.  He said that he had a key to the new lock fitted when the doors were replaced in 1998. Mrs Hosking’s evidence was that she had no recollection of Mr Harding having a key or of having seen him in the Passage.    
Mr Harding certainly did have a key from 2004 because on 21 October 2004 Mrs Hosking sent him a key with a letter in which she said that “without prejudice” she was lending him the key to allow him to have access to the passageway. Mr Harding signed “in acknowledgement of receipt of the letter and key”.  Mr Harding denied that by signing the letter, he was accepting the terms on which the key was provided to him.  

23.	Whatever the terms on which Mr Harding was given a key and the terms on which he accepted it, two points are clear; firstly, he was able to access the Passage from 2004 (if not before) and secondly, Mrs Hosking was also able to access the Passage.  It is not necessary for me to decide whether Mr Harding was in possession of the Passage between 1998 and 2004.  The question I have to decide is whether he was in possession of the Passage at the time Mrs Hosking made her application to rectify the register, namely in June 2008.  I was not referred to any authority on the meaning of “possession” within section 131 of the 2002 Act.  There is authority on the meaning of “possession” within the adverse possession context.  In that context, possession requires both an intention to possess and factual possession.  Factual possession requires “an appropriate degree of physical control” and has to be “single and exclusive” – see Powell v. McFarlane (1977) 38 P&CR 452 at 470 per Slade J., cited with approval in JA Pye (Oxford Ltd. v. Graham [2002] UKHL 30.  Mr Hosking was not in possession of the Passage within the meaning given to “possession” in the context of adverse possession claims.  He did not have exclusive factual control of the Passage.   Whilst I accept that I have to decide whether Mr Hosking was in possession in a different statutory context to that of adverse possession claims, nevertheless I consider that the discussion of what is meant by “possession” and by factual possession in that context does lend me some assistance.  It seems to me that Mr Hosking was not in physical possession of the Passage.  Having the key gave him the means to use the Passage but there was no evidence that he did so other than by his tenants accessing the W.C. in the yard or by himself occasionally walking along the Passage.  Given that Mrs Harding also had access to the Passage and used it as much, if not more than Mr Hosking, given that the Passage was the only means of access to her property, it does not seem to me that Mr Hosking had physical possession of the Passage in any real sense.  I find that Mr Hosking was not a proprietor in possession for the purposes of Schedule 4 to the 2002 Act.

Conclusion
24.	As the registrar has power to alter the register and Mr Harding is not a proprietor in possession, I am required to direct the registrar to give effect to the application to rectify the register unless there are exceptional circumstances which justify not making the alteration.  It was not submitted on behalf of Mr Harding that there are exceptional circumstances in this case which justify not making the alteration.  It does not seem to me that there are any such exceptional circumstances.  Accordingly, I shall direct the Chief Land Registrar to give effect to the application of Mrs Hosking to alter the register as if Mr Harding’s objection thereto had not been made.            

Costs
25.	My preliminary view is that Mr Harding should pay Mrs Hosking’s costs of the proceedings, to be assessed on the standard basis, if not agreed.  Mrs Hosking has succeeded on her application and it is just that costs should follow the event.  Any party who wishes to submit that some different order should be made as to costs may do so in writing provided that such written submissions are served on the Adjudicator and on the other party by 5pm on 28 August 2010.   

BY ORDER OF THE ADJUDICATOR

DATED this 30th July 2010