REF/2010/0499

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
DARREN LEE FONTAINE
Applicant

AND

ANNA BORTOLUSSI
Respondent

Before: Ann McAllister, sitting as Deputy Adjudicator
Victory House, London
21 March 2011

Property address: 47 Washington Avenue, East Ham
Title Number: EGL260252

Representation: The Applicant appeared in person. The Respondent did not appear but was represented by Sebastian Ramrattan

Adverse possession – Schedule 6 to Land Registration Act 2002 -  whether paper owner required application to be dealt with under paragraph 5 in time – Land Registration Rules 2003
DECISION

Introduction

1.	The Respondent (Ms Bortolussi) is the registered proprietor of a property at 47 Washington Avenue, East Ham, London (‘the Property’). The Property is a terraced house, converted (as set out below) into two flats. Ms Bortolussi purchased the Property in 1989 for £75,000. It was registered in her name on 13 November 1990. There is no mortgage on the Property. Neither Ms Bortolussi nor her husband, Mr Ramrattan, have ever lived at the Property. 

2.	By an application dated 15 September 2009 the Applicant (Mr Fontaine) applied to be registered as proprietor under paragraph 1 of Schedule 6 to the Land Registration Act 2002. This provides that person may apply to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for a period of ten years ending on the date of the application. By paragraph 11 (1) of the Schedule, adverse possession is generally given the same meaning as under the Limitation Act 1980. 

3.	Ms Bortolussi was given notice of the application on 17 November 2009. Paragraph 3(1) of the Schedule provides that a person given notice under paragraph 2 may require that the application be dealt with under paragraph 5. In essence this means that the applicant must establish that, in addition to being in adverse possession, he can bring himself within one of the three specified conditions. If he fails to do so, his application will be dismissed. 

4.	If the right under paragraph 3(1) is to be exercised, notice must be given to the registrar before 12 noon on the 65th business day after the issue of the notice to the registered proprietor (Rule 189 of the Land Registration Rules 2003).  There is no power to extend this deadline. The 65th day period expired at 12 noon on 19 February 2010.

5.	The matter was referred to the Adjudicator on 4 May 2010.  I heard the case on 21 March 2011. Ms Bortolussi did not attend. She was represented, as she is entitled to be under Rule 35 of the Adjudicator (Practice and Procedure Rules) by Mr Ramrattan, her husband, who also gave evidence. I also heard evidence from Mr Fontaine, Mr Reid and Mr Ramsaroup. In view of the confusion relating to the service of the counter notice I allowed Ms Bortolussi to put in a further witness statement after the hearing. 

Preliminary issues

		Service of the counter notice

6.	The chronology relating to the service of the counter notice is important. The Case Summary sent by the Land Registry stated that the time for serving this notice expired on 19 November 2009. Accompanying the summary was a fax sent by Mrs Bortolussi  dated 18 February 2010 with enclosures. 

7.	Following the hearing, I made inquiries of the Land Registry. I was sent a copy of the notice sent by the Land Registry to Mrs Bortolussi dated 17 November 2009. This stated that if she intended to object to the application or to give a counter notice she had to do so by 12 noon on 19 February 2010. The date referred to in the Case Summary was simply a mistake. 

8.	I was also sent a copy of a letter dated 18 February 2010 which reads as 
follows: ‘ My husband spoke to your colleague Verena on 18 February    2010 to ensure whether the objection to the application for adverse possession had been received. He was told that it apparently had not yet been filed. I am sending email copies and faxed copies of the NAP form, the accompanying letter and statement of truth in today’s post’. Enclosed with the letter was a letter dated 16 February 2010 which in turn enclosed the completed NAP form and statement of truth signed by Mr Ramrattan.

9.	The NAP form was completed as follows. An ‘X’ was placed in the box 
stating ‘I require the Registrar to deal with the application under Schedule 6, paragraph 5, to the Land Registration Act 2002’ and next to the box stating ‘I object to the registration on the grounds stated in panel 6’.

10.	Panel 6 was completed by stating that (a) the applicant was not in possession of the Property during the time alleged (b) the Property is in a Deed of Trust set out for the benefit of my children and (c ) during the alleged period Mr Ramrattan was managing the Property during development works.

11.	The letter dated 18 February 2010 and enclosures was date stamped as having been received on 22 February 2010. A copy of the same letter and enclosures was faxed on 14.30 on 19 February 2010 from Norwood Library (according to the time and date stamped at the top of each page).

12.	As stated above, in view of the confused information supplied by the Land Registry, I gave Ms Bortolussi permission to file a further witness statement after the hearing to deal with the question of service of the counter notice.  Her evidence is that the counter notice was served by first class post on 16 February 2010. On 18 February 2010 Mr Ramrattan telephoned to find out whether the counter notice had been received. He was told that it was not yet on file so stated that he would be sending them out by post and email later that day. The letters dated 16 and 18 February and other enclosures were sent by fax on 19 February. As I read the statement, nothing was in fact sent by email, and there is no evidence from the Land Registry to suggest it was.

13.	I  should add this point in relation to  paragraph 4 of Schedule 6. This  provides that if an application under paragraph 1 is not required to be dealt with under paragraph 5, the applicant is entitled to be entered in the register as the new proprietor of the estate. This, of course, is not strictly correct. The person notified may claim (as here) that the applicant has not been in adverse possession. The matter will then be referred to the Adjudicator. It is also to be noted that there is no deadline either in the Act or the Rules in relation to the time when an objection (as opposed to a counter notice) is to be served. There is therefore an important distinction between a counter notice and a notice of objection.

14.	It is also clear from the recent decision of the Court of Appeal in Baxter v Mannion  2011 EWCA Civ 120 that even where a person is registered as having acquired title by adverse possession in the absence of any objection by the paper title owner, the Adjudicator and the Court have power to rectify the register if, as a matter of fact, adverse possession is not made out.

15.	Rule 199 deals with services of notices by the registrar. It provides a deeming provision. If a notice is sent by post it is deemed to be served by the second  working day after posting. If served by fax, the working day after transmission. If served by email, the second working day after transmission.

16.	There are no such provisions in relation to service on the registrar. Rule 190 states that notice under Rule 189 must be given in the manner and at the address stated, but there is no deeming provision.

17.	 Section 7 of the Interpretation Act 1978 provides that where an Act authorises or requires any document to be served by post (whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying, and posting a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

18.	‘ The ordinary course of post’ is a question of fact in each case. Even applying by analogy the deeming provision relating to proceedings or the deeming provision in Rule 199(4)  the evidence in this case is that the counter notice had not been received in the post by 19 February and was not received until 22 February. The faxed documentation is shown as received by 2.30 on 19 February.

19.	In all the circumstances, therefore, it is clear that the counter notice was not received in time. This means that Mr Fontaine does not have to establish that he can bring himself within one of the three specified conditions.

The Trust Deed

20.	Paragraph 12 of Schedule 6 provides that a person is not to be regarded as being in adverse possession of an estate for the purposes of the schedule at any time when the estate is subject to a trust, unless the interest of each of the beneficiaries in the estate is an interest in possession. 

21.	This means, for example, that where land is held on trust for A for life, then B for life and then C absolutely, a squatter will only be able to be registered under the Act if he can show that he was in possession for at least ten years when C was entitled to be in possession. 

22.	In the present case, I have seen a copy of a Trust Deed dated 30 November 1990.This declares that the Property is held on trust for Mrs Bortolussi’s children, Daniel Ramrattan and Alexander Ramrattan. In the event of a sale, the proceeds are to be divided equally. The deed also appoints Mr Ramrattan to control manage repair and deal with all matters concerned with the Property.

23.	It is clear that this trust deed creates an interest in possession in favour of Mrs Bortolussi’s two sons. This means that the provisions of paragraph 12 do not apply, and there is no bar to Mr Fontaine establishing, if he can, that he has been in adverse possession for ten years  ie from 15 September 1999.

The evidence

24.	The sole issue in this case therefore is whether Mr Fontaine was in adverse possession of the Property for at least that period of time. For the reasons set out below, I find that he was. This, I accept, is perhaps a surprising conclusion in view of the fact that the Property is a privately owned dwelling, but the evidence, in my judgment, is clear.

25.	Mt Fontaine’s case is that he took possession of the Property in May 1996. It was, he said, in a derelict and abandoned state. The front door was open. The Property was then a three bedroom property, lacking in such basic amenities as a functioning  bathroom and kitchen. He moved in for a few months before deciding to convert into flats. 

26.	 In about December 1996 Mr Fontaine began the work of converting the Property into two self contained flats. This involved installing new plumbing and wiring, and separate central heating systems; making separate entrances; repairing walls and generally decorating. I have seen two invoices dated January 1997 in respect of works done, as well as an estimate of the total spent over the years. Of themselves, neither set of documents are necessarily conclusive but the invoices do lend some support to Mr Fontaine’s case.

27.	Mr Fontaine was helped by a number of people, including Mr Reid and Mr Hampton. He formed a trading company called Vision Property Services.Once converted, the two flats were let on assured shorthold tenancies. The flats were known as 47A and 47B Washington Avenue. I have seen a number of tenancy agreements in relation to both flats from February 1997 to 2000. In evidence Mr Fontaine stated that in all there had been some 15 to 20 tenants. When I visited the Property in December 2010 it was clear that both flats were occupied by tenants.

28.	In 1999 Mr Fontaine, it seems, attempted to place a caution on the Property. I have seen no documents referring to this, but Mrs Bortolussi was, apparently, aware of this as she deals with this point (and gives the detail, not given by Mr Fontaine, that the caution was lodged in November 1999).

29.	In early 2001 the London Borough of Newham inspected the Property. On 9 July 2001 a Certificate of Lawful Use was granted to Mr Hampton. This will be granted if it can be shown that the property was used in the manner contended for four years. Mr Hampton is no longer in contact with Mr Fontaine, and accordingly did not give evidence. I have seen a statutory declaration signed by him (dated 19 June 2001) in which he states that he was the manager of the Property; that the Property had been divided into two flats and occupied by tenants since 1997.  I have also seen a copy of a letter from Mr Hampton to the Council (taken from their files) accompanying the statutory declaration and given more information in relation to the tenants. 

30.	Mr Fontaine has provided other documentary evidence in support of his claim. I have seen copies of an account with Barclays in his name (trading as Vision Property Services) giving the address of the account holder at the Property.  These statements are for the period 2000-2001.  I have also seen a conditional sale agreement relating to Mr Fontaine’s car (giving his address as the Property)  and insurance quotations in relation to the Property. The documentary material is not voluminous, but it clearly supports his case. 

31.	Mr Ramrattan cross examined Mr Fontaine extensively on his evidence and on the documents.  However, he accepted the validity of the Certificate of Lawful Use and confirmed that he had been told by the Council of the conversion and that housing benefit had been claimed by the tenants. I will return in more detail to Mr Ramrattan’s evidence below.

32.	Mr Reid’s evidence was that he managed the Property and oversaw the conversion and renovation works. He first visited the Property some time in 1996.  He also arranged, or helped to arrange, finding tenants. At one point the Council stopped paying housing benefit because, he said, there was an issue as to who was the registered owner. Mr Reid stated that the Council make inquiries of Ms Bortolussi who did not respond, and the Council began paying housing benefit again. His evidence (and indeed that of Mr Fontaine) is that he never saw Mr Ramrattan at the Property.

33.	Mr Ramsaroup is a qualified electrician who dealt the electricity supply to the two flats on conversion. That was the limit of his involvement in the Property. He remembers that the Property needed a great deal of work. 

34.	 Ms Bortolussi’s Statement of Case denied that Mr Fontaine had ever occupied the Property. It was stated that between May 1996 and January 2002 Mr Ramrattan was in occupation and was carrying out works of repair and maintenance. It is said that none of the tenants existed, and that Mr Fontaine had effectively deceived the Council into paying housing benefit by making false claims. The Statement went on to deny that the Property had been converted into flats (as I said above, there is no doubt that it was so converted on the occasion of my site visit).

35.	The Statement continues by saying that there had been a number of burglaries and acts of vandalism in the Property leading to a number of notices being placed on the front door. It is also said that when intruders were found to be living in the Property they were ejected.

36.	 The only evidence given on behalf of Ms Bortlussi was that given by Mr Ramrattan. No documents were relied on at the hearing. After the hearing, at the same time as a copy of the Trust Deed was provided, Mr Ramrattan supplied copies of Council tax bills in respect of the first floor flat at the Property for 2002/2003 and 2003/2004, as well as a notice requesting Mrs Bortolussi to provide details of her interest in the Property for the purpose of abating a statutory nuisance. All this documentation was sent to 76 Rosendale Road SE21 which is the address given on the official copy register for the Property. These documents do not assist with the issue of whether or not Mr Fontaine was in possession.

37.	Mr Ramrattan stated that, when the Property was purchased, it was habitable and was occupied by tenants who left in 1990. Between 1990 and 1996 relatives occupied the Property, paying Council tax and all other outgoings and some rent. There was nothing in writing in relation to these arrangements. In 1996 the last occupier, Mr Ramrattan’s nephew, got a job outside London.  At that point Mr Ramrattan decided to convert the Property into two flats. Work was done to this end between 1996 and 1998 although, as I understand it, the conversion was not completed. 

38.	In 1998 Mr Ramrattan suffered health problems. He left the Property and put a notice on it to deter others breaking in. He was in and out of hospital. It seems that someone kept an eye on the Property. At one stage someone broke in; at another point it was boarded up. In early 2002 Mr Ramrattan  boarded up the front door and put a strong bolt on the door to prevent break ins. At that stage, he said, the Property was still one house, and had not been converted into two flats. In 2003 Mr Ramrattan says he went back to the Property and did as much work as he could. He then left again, and accepts that by the end of 2003 unauthorised people were in occupation. He told the police about various burglaries, but not about the occupiers. He received advice about taking possession proceedings but did nothing other than to put various notices on the front door.

39.	In 2005 when he went again to the Property, a couple appeared to be living on the ground floor. He was able to see that the staircase had been boarded up, separating the ground floor from the first floor. He then spoke to the Council and was taken aback to discover that the conversion had taken place and that housing benefit had been claimed. 

40.	Nothing further was done, it seems, until 2008 when Mr Ramrattan decided to issue possession proceedings, but then did not do so. Under cross examination he accepted that much of what was said in the Statement of Case was not accurate: he could not say who was in possession between 2003 and 2011; he has not been inside for many years; he cannot say how much of the work carried out to the Property was carried out by him, and he did not do any work to separate the Property into two flats. Mr Ramrattan also accepted that he was aware since 1999 that people were trying to get in.

41.	In view of the evidence set out above, it is in my judgment clear that the Respondent, for reasons which remain unclear, effectively abandoned the Property at some point before 1996 or in any event had done so by 1999. The most cogent evidence is the Certificate of Lawful Use. I also found the evidence given by and on behalf of Mr Fontaine to be credible, whereas the evidence of Mr Ramrattan was confused, uncertain and at odds with the Statement of Case.

42.	I will accordingly order the Chief Land Registrar to give effect to the application made by Mr Fontaine. This leaves the question of costs. Mr Fontaine is, in principle, entitled to his costs since the date of the reference only (4 May 2010). I have seen a schedule dated 24 March 2011. This needs to be re-served, using Form N260 or the like, so that a greater breakdown of the costs incurred can be seen and confirmation given that the indemnity principle applies. The schedule is to be filed and served by  1 July 2011.

43.	The Respondent may then make such objections or representations as she deems appropriate by 14 July, and I will then consider what order to make.

BY ORDER OF THE ADJUDICATOR

ANN McALLISTER

Dated this 15th day of June 2011