REF/2010/0728

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN

Dorothy Jacqueline Davies

APPLICANT

and

David Hugh Lloyd & Debbie Lloyd

RESPONDENTS

Property Address: Gelli Fields, Glyn Ceiriog, Llangollen
Title Number: CYM427994

Before: Mr Edward Cousins sitting as The Adjudicator to HM Land Registry

Sitting at: Shrewsbury Magistrates Court
On: Tuesday 15th March 2011

Applicant Representation:     Mr John Brennan, of Counsel, instructed by Messrs MFG LLP,     Solicitors
Respondent Representation:  	Mr Mark T Morison, Chartered Surveyor, of Messrs Roger Parry and Partners	

DECISION

KEYWORDS: application for first registration - lost, stolen, or destroyed documents of title – Respondents’ case based on a claim for adverse possession – relevance or otherwise of the Land Registration Act 2002, sections 97 and 134, Schedule 6 paragraph 5(4), and Schedule12 paragraph 18(1) to the case – Land Registry Practice Guide 2 -

Cases referred to: Brewster v Sewell (1820) 3B ALD 296.

THE APPLICATION
1.	By an Application dated 27th November 2008 in form FR1 (“the Application”) Miss Dorothy Jacqueline Davies (“the Applicant”) applied to be registered as proprietor of certain land situated at Gelli Fields lying between Glyn Ceiriog and Pandy, Llangollen, Wales (“the Disputed Land”). The Disputed Land is shown edged red on the plan in exhibit “DJD1” to her Statutory Declaration dated 20th November 2008.  The disputed land has been given a provisional title number, CYM 427994. Other land was also sought to be registered as shown in the attachment “DJD2” to the Statutory Declaration, but the registration of that parcel of land is not in issue.  The date of the original objection by the Respondents was 16th December 2008, and the case was referred to this jurisdiction on 30th June 2010. For the purposes of this Decision I shall rely upon an extract of the official copy of the title plan to title number WA950419 annexed hereto upon which the Disputed Land is edged blue. 

2.	Some confusion has arisen as to the legal basis of the Application made by the Applicant. This arose from the fact that in the case summary prepared by the Land Registrar, Wales Office, it was stated that the Application was made pursuant to the transitional provisions contained in section 134 of, and paragraph 18(1) of Schedule 12 to, the Land Registration Act 2002 (“the 2002 Act”), i.e. based upon a claim for adverse possession, as apparently set out in the Statutory Declaration.  This confusion was compounded by the fact that the Applicant’s solicitors when making the Application failed to complete Box 4 in the Application stating what class of registered title the Applicant was seeking.  Nor is it stated anywhere in the Application as to the basis of the Applicant’s claim to be registered in respect of the Disputed Land.  

3.	However, when regard is had to the Statutory Declaration it is clear that the Application for first registration is not based upon any claim in adverse possession, but on the basis of unregistered documentary title to the Disputed Land, the documents of title having been lost or stolen.  It is also clear that the perception subsequently held by the Land Registry, and the legal representatives for the parties, that the Application was for registration under the transitional provisions to the 2002 Act is fundamentally wrong as the Disputed Land has never been registered with HM Land Registry.  One only has to have regard to the wording of paragraph 18(1) of Schedule 12 to see that this provision only applies to registered estates. Similarly, in so far as any claim for adverse possession is concerned, the provisions of section 97 of, and Schedule 6(5) to, the 2002 Act are equally inapplicable as it is obvious that such an application under the new regime only applies where the land the subject of the claim is existing registered land. 

4.	I should further state that the Land Registry in processing the Application has not taken into account the contents of Practice Guide 2 which is of application in the case where a first registration of title is sought where the deeds have been lost or destroyed.

5.	Accordingly, the way in which the case has been approached by the Land Registry, together with counsel and solicitors for the Applicant, and the Respondents’ former solicitors, and latterly their surveyor representative, has been fundamentally misguided. 

6.	I should also state that the defence put forward by the Respondents to the Application rests upon their claim for adverse possession, the details of which I shall refer to again below.  However, the Respondents have never made an application to the Land Registry for first registration on the basis of adverse possession, and thus in principle I am not seised of such a claim.

7.	In short, therefore, the Application by the Applicant is made on the basis of lost or stolen documents of title. The answer by the Respondents to this assertion is that the Applicant never owned the Disputed Land and therefore cannot claim ownership of it, and that the Respondents themselves have better title by dint of their physical occupation and intention to possess the same for the requisite period of limitation.

THE APPLICANT’S CASE
Ownership of the Disputed Land
8.	The Applicant was born on 22nd February 1937, and is therefore 74 years of age.  She was the daughter of Frances Morfudd Davies and John William Davies.  The Applicant’s case as set out in her Statutory Declaration, together with her witness statement dated 16th October 2010, and her oral evidence given during the hearing, is that the Disputed Land has been in her family’s ownership since the mid-1950’s when her father purchased a farm called Tyn-y-Berllan from Mr Edward Roberts. About the same time the Applicant’s father purchased other land in the area in the Tierw Valley which included the Disputed Land owned and occupied by Mr Roberts.  The purpose of this was to make a viable holding of the whole.  The Applicant’s father remained the owner of the Disputed Land and other land until his death intestate on 10th October 1972 when the Applicant was aged 35.  On 9th April 1973 letters of administration of the estate were granted out of the Principal Registry of the Family Division to Midland Bank Trust Company Limited, it being certified that the net value of the estate amounted to £36,026.44.  The estate of the late John William Davies was then distributed in accordance with the intestacy rules.

9.	According to the Applicant’s Statutory Declaration her mother received a statutory legacy amounting to £15,000, and the residue of her father’s estate was then distributed between her brothers and herself, but this did not occur until 1981 after her mother had died.  The Applicant states that the Disputed Land was one of several properties she received in lieu of her share of her father’s estate. 

10.	On 4th September 1977 the Applicant’s mother died testate, and on 7th April 1978 probate was granted out of the Probate Registry of Wales, the net value of the estate being £21,307.  As the Applicant states in her witness statement dated 16th October 2010 (paragraph 6) due to the delay in the distribution of her father’s assets, his estate did not specifically form part of her mother’s will. The documentary evidence in support of these various assertions is lacking.

11.	The Applicant asserts that the Disputed Land was one of several properties identified in the list of properties under an entry dated 11th November 1981 in a document which has apparently emanated from the Midland Bank Trust Company Limited. This contains four memoranda. The last of these sets out a schedule of Assents made between Midland Bank Trust Company Limited and a number of beneficiaries whose names appear in the second column, and referring to properties set out in the third column. These various properties were apparently vested in the respective beneficiaries in fee simple.  The particular entry upon which the Applicant relies is the following - “land situate in the parishes of Glyn Ceiriog and Llansilin, Clywd formerly part of Gelli Farm”.  The Applicant states that this list of properties was used in the distribution of her father’s assets held by the Trust. 

12.	The Applicant states that Mr George Aylmer Lewis of Messrs Crampton Pym & Lewis acted in her father’s affairs. She asserts that in or about 1981 she was handed a bundle of documents by Mr Lewis relating to her father’s assets which comprised various parcels of land and properties including the title documents to the Disputed Land.  This occurred when she attended at the offices of Crampton Pym & Lewis in Oswestry.  

13.	Requests were made by the Applicant’s solicitors during 2007 for copies of their records, but in a letter dated 20th June 2007 the Applicant’s solicitors were advised that no documents were held.

14.	The Applicant further asserts that at one time the deeds and documents of title, including those for the Disputed Land were kept in what she considered to be a secure cupboard at her address at Gwern-y-Pale where she was living at the time.  However, in or about October 2003 as a result of a fall she broke her hip and was hospitalised for about 12 weeks.  During this period of time Gwern-y-Pale was broken into and vandalised (probably on more than one occasion) and many of her personal belongings and private papers were either taken or destroyed.  The Applicant contends that the documents of title to the Disputed Land were among those taken or destroyed. If stolen they have never been recovered by the police. A search was undertaken at Gwern-y-Pale by the Applicant’s builder in October 2004, but nothing was found. The Applicant states that the last time she saw the deeds was at Gwern-y-Pale, and that they were in her possession right up to the time she broke her hip, and that no-one has ever sought to maintain that the Disputed Land did not belong to her, nor has anyone sought to claim any rights over it or to try to restrict her use of it in any way. 
Tenancy of the Disputed land
15.	After the death of Mr Edward Roberts in about November 1967 the Disputed Land was left vacant for the duration of the then outbreak of foot and mouth disease.  However, subsequently in about 1970 the Applicant’s father let the land in the Tierw Valley being the Top of Tyn-y-Berllan and the Disputed Land to Mr Hugh Lloyd, the nephew of the late Mr Edward Roberts. Mr Hugh Lloyd was the First Respondent’s father.  It is part of the Applicant’s case that Mr Hugh Lloyd grazed sheep and beef cattle on the Disputed Land and by agreement rent was paid for this in the sum of £25 per annum on 1st April in each year.  

16.	The Applicant also contends that after she inherited the Disputed Land in or about 1981 such rent continued to be paid to her by Mr and Mrs Hugh Lloyd regularly and promptly, and then by First Respondent’s stepmother, Mrs Eileen Lloyd, who paid usually by a cheque drawn on Lloyd’s Bank until the year 2000 when the Respondent’s stepmother became ill. From the year 2001 the First Respondent took over such payments which continued to be regularly made to the Applicant.  The last payment the Applicant received from the First Respondent was on 1st April 2003 for the period until 31st March 2004 when he personally handed a cheque to the Applicant.  The only documentary evidence of such payments having been made is reflected by one paying-in receipt and a Nat West bank statement. The paying-in slip is apparently dated 1st April 2003 and contains the following entry “LLOYD Rent T of TyB Fields £25”.  The Applicant asserts that because of the limited space available on the paying-slip this entry referred to land in the Tierw Valley being the “Top of Tyn-y-Berllan” and the Disputed Land.  The Applicant was adamant in her evidence that this referred to the Disputed Land and not to another parcel of land in the area, as contended by the Respondents. No further payments been made in respect of rent by the Respondents since April 2004.

17.	According to the Applicant her solicitors contacted the NatWest Bank in order to try and locate various other payments and receipts, and bank statements from the Bank’s computer records, but these have not been forthcoming.

18.	Further evidence of the Applicant’s ownership of the Disputed Land and the assertion that it was tenanted by the First Respondent is based upon two letters from Mr Philip Meade of Messrs Davies Mead (the Applicant’s Surveyor) dated 25th October 2005 and 8th December 2005. These refer to the carrying out of a rent review and a site view of the Disputed Land, but no reply was ever received. Mr Meade gave evidence and contended that both letters had been properly served by first class post, and good delivery had been made as neither letter had been returned. He rejected the contention that delivery had not been effective.

	THE RESPONDENTS’ CASE
	The Respondents’ evidence
19.	The First Respondent’s evidence consisted of a Statutory Declaration declared on 27th April 2009 together with a witness statement dated 15th October 2010.  His wife, the Second Respondent produced a witness statement dated 15th October 2010.  The Respondents also relied upon the evidence of Mr Eryl W Morris who provided a witness statement dated 14th October 2010 and who appeared at the hearing to give evidence, but his evidence was unchallenged.  A witness statement was also obtained from Mr Iwan Davies dated 14th October 2010 who did not appear to give evidence at the hearing as his evidence was also unchallenged, prior notification having been given to him.  Finally, the Respondents relied upon the evidence of Ms Gail Elizabeth Lewis, Chartered Surveyor, who provided a witness statement dated 15th October 2010.

20.	The essence of the Respondents’ case is that at all material times since 1995 they have been in occupation of the Disputed Land and are therefore entitled to be registered as the proprietor of it by dint of adverse possession.  The Respondents contend that as the registered proprietors of the adjacent freehold farm and farmland known as Hafod-y-Garreg since 2000, and prior to that as the holders of the paper title, they have used and occupied the Disputed Land in conjunction with Hafod-y-Garreg throughout that period.  It is also denied that they and their predecessors in title have rented the Disputed Land from the Applicant and her predecessors in title at any stage, and at no time have the Respondents entered into any tenancy agreement whether verbal or in writing with the Applicant in relation to that parcel.  Further, at no time have the Respondents, or anybody else on their behalf, paid rent to the Applicant, or to any other person in respect of the Disputed Land.  It is further asserted that since 1995 no one has been in possession or occupation of the Disputed Land without their permission, and it is denied that the Applicant or any other person on her behalf have maintained the boundary features surrounding the Disputed Land.  The First Respondent also contends that until the Applicant applied to register the freehold interest of the Disputed Land he was not aware of her claim to be the owner of it.  

21.	As part of their occupation of the Disputed Land the First Respondent asserts that since 1995 he has carried out various activities on the Disputed Land including fertilising, muck spreading, hedging/fencing, enlarging the entrance, spreading hardcore for campers, cutting thistles/topping and grazing cattle, sheep and horses.  The First Respondent also stated that his children had constructed motorbike jumps on the land, and that he has parked vehicles and implements on it, and has stacked silage bales, fodder and manure there.  

22.	In support of his case the First Respondent further stated that the Heads of Agreement relating to his father’s retirement in 1995 from the farm makes no reference to there being any rented farm property, or rental payments made in respect of the Disputed Land; nor does his Farm Ledger indicate any such payments.  He also disagrees that the paying-in stub, referred to in paragraph 15 above, constitutes evidence of any payment made by him or anybody else on his behalf to the Applicant in respect of the Disputed Land. Indeed he asserts that it could relate to an entirely different parcel of land. He said that in any event the issue of a tenancy is actually a “red herring” because he has occupied the land since 1995 in his own right without any knowledge of a claim to an interest in the property by any other person until the current proceedings arose.  In short, the First Respondent asserts that he and his wife have been in continuous occupation of the Disputed Land since 1995, and that they have never received any request for rent.  Further, no one has occupied or used the Disputed Land since 1995 without their permission.

23.	The First Respondent asserted that his father had told him that the Disputed Land formed part of Hafod-y-Garreg, and that he himself always thought the same and he farmed it as though it did form part of the farm.  His stepmother died on 1st December 2010 and he accepted that she was not asked to provide a witness statement before her death as to her knowledge of the circumstances of the Disputed Land.  Further, his father is still alive, but he agreed that no evidence was sought from him to assert any previous claim to adverse possession, or to explain whether or not the land had ever been rented.   Although the First Respondent considered that the Disputed Land formed a part of Hafod-y-Garreg he had to accept that there were no documents of title to support such a claim. He also accepted that when Hafod-y-Garreg was registered at HM Land Registry in 2000 the Disputed Land was expressly not included within that registration. The application in Form FR1 dated 24th January 2000 made on behalf of the Respondents for first registration of  Hafod-y-Garreg specifically did not include the Disputed Land. Solicitors then acting for the Respondents on the application for first registration (Messrs Crampton Pym and Lewis) have stated in a letter dated 5th November 2010 to the Applicant’s solicitors that they were not instructed to include the Disputed Land in the application.
 
24.	For her part the Second Respondent broadly agreed with the witness statement and evidence given by her husband, and stated that they have both farmed Hafod-y-Garreg in partnership since 1995 which has included the Disputed Land.  The Second Respondent also stated that she has grazed horses on the Disputed Land since 1986 with the consent of her father in law until his retirement in 1995.  She further stated that as well as grazing her own horses she has also rented out the Disputed Land to other horse owners.  She is unaware of any rent having been requested or paid in respect of the Disputed Land.

Mr Eryl W Morris
25.	Insofar as Mr Eryl W Morris is concerned, as I have stated above, his evidence was unchallenged.  He supported the evidence given by the Respondents in that he stated that he had always considered and understood that the Disputed Land has formed part of Hafod-y-Garreg.  Further, he stated that he has been in an excellent position to have witnessed activities carried out on the Disputed Land during his period of ownership of Camhelyg Issa Farm which adjoins Hafod-y-Garreg.  He has seen activities carried out which have included ploughing and re-seeding the fields in the late 1970s, the grazing of sheep and cattle on the fields, and more recently the grazing of horses belonging to the Second Respondent.  He has also seen people camping on the land.  He therefore asserted that without doubt he considered that the Disputed Land had been occupied, and continues to be so occupied, by the First Respondent and grazed by animals belonging to Hafod-y-Garreg since 1995.  
Mr Iwan Davies
26.	The evidence of Mr Iwan Davies was also unchallenged.  In his witness statement he stated that the First Respondent has been his agricultural contractor for over 25 years, and on occasions he took the First Respondent home at the end of the day. When he drove along the road which directly passes the Disputed Land he witnessed sheep belonging to Hafod-y-Garreg grazing on the Disputed Land.  He also remembered the First Respondent’s father hedge-laying along the road boundaries of the Disputed Land.  Insofar as more recent events are concerned, these related to events in 2003, 2004 and 2005, all of which have little bearing on the adverse possession claim being made by the Respondents.  

Ms Gail Elizabeth Lewis
27.	Ms Lewis gave evidence and stated that on 26th November 2009 she walked the Disputed Land and took photographs of various parts of it.  She stated that it was apparent to her on walking the land that the Disputed Land was operated in conjunction with other land in the ownership of the Respondents with livestock present at the time, and the boundary fences between the two parcels had been removed in places to allow livestock to cross the stream and gain access to the water.  She agreed in her evidence that there was only one position where it was possible for vehicles to cross the stream from one field to the other and that fences did exist on both sides of the stream in various places. 

28.	I should state that the surveyors for both sides agreed during the hearing that the total size of the Disputed Land is 1.452 hectares or 3.588 acres, and not approximately 7.5 acres as originally considered. This is based upon a satellite interpretation produced by Promap.

The Root of Title
29.	As I have stated above, on 31st March 1995 the First Respondent’s father ceased to farm Hafod-y-Garreg and on that date the First Respondent claims to have been in adverse possession of the Disputed Land.  The background to this is to be seen in the context of Heads of Agreement made on 31st March 1995 made between the First Respondent’s father, his wife, and the First Respondent, whereby the First Respondent’s father ceased trading in the farming business at Hafod-y-Garreg.  Clause 2 provided that as soon as reasonably possible from that date the estate and interest held by Mr Lloyd, senior, would be transferred by way of gift to the First Respondent. However, the vesting of Hafod-y-Garreg and the adjoining farmland did not take place until 26th February 1997. This resulted from an Assignment and Conveyance and an Assent whereby the whole of the interests formerly held by the First Respondent’s father and the late Gwilym Lloyd (the First Respondent’s uncle) were conveyed to him.  This meant that from that date the entirety of the interest was held solely by the First Respondent. Subsequently by a Deed of Gift dated 28th July 1998 both parcels were conveyed by the First Respondent from his sole name into the joint names of himself and his wife, and on 25th January 2000 they were registered at HM Land Registry under title number WA950419.

THE LEGAL POSITION
Secondary evidence
30.	Turning to the question of secondary evidence where the primary evidence such as a deed has been lost, stolen or destroyed, where circumstances arise that it would appear that a document, such as a document of title, has been lost or destroyed and cannot be found after due search, secondary evidence of its contents is admissible (see Halsbury’s Laws of England, Vol 11 - 4th Edition, at paragraph 880).  However, the court must be satisfied that document existed, that the loss or destruction has in fact taken place, and that a reasonable explanation of this has been given.  Thus, a diligent search must have been made in good faith in the place where the instrument would be most probably be found.  It is not necessary for the search to have been made recently.  Any objections as to the sufficiency of the search must be taken at the trial and cannot be raised afterwards.  

31.	The question of the sufficiency of the search is for the judge, and must vary with the circumstances of each case.  Thus if the document is of considerable value, or if the party who ought to have produced it appears to have some interest in withholding it, greater diligence must have been shown before secondary evidence can be admitted; whereas if the document is valueless very little search will suffice (see Brewster v Sewell (1820) 3B ALD 296).  Further, no search is required where direct proof of the destruction or irretrievable loss of the instrument is given.  In short, it is enough if the party has in good faith exhausted all the sources and means which the nature of the case suggest, and which were reasonable accessible to him.  

‘There is a great distinction between useful and useless papers. The presumption of law is that a man will keep all those paper which are valuable to himself, and may, with any degree of probability, be of any future use to him.  The presumption on the contrary is that a man will not keep those papers which have entirely discharged their duty, and which are never likely to be required for any purpose whatsoever.” [per Bayley J at P.300]

32.	In the present case Mrs Davis has given direct evidence of the fact that the documents of title which demonstrated her ownership of the Disputed Land did exist which demonstrated her ownership as successor in title to her father, that such documents were held in a secure cupboard at her address at Gwern-y-Pale, that her property was broken into and vandalised (probably on more than one occasion) and many of her personal belongings and private papers were either taken or destroyed which included the documents of title to the Disputed Land; a search was undertaken in October 2004 by her builder, but nothing was found, the search being fruitless.  

THE DECISION
33.	Having regard to the evidence, both documentary and oral, to which I have made reference above, I have come to the conclusion that the Applicant should be registered with at HM Land Registry.  My reasons are as follows:-

(1)	I am satisfied that the Applicant holds the paper title of the Disputed Land, the documents of title to it having been lost or stolen at a stage after she was admitted to hospital after having broken her hip in October 2003.  In support of that position I rely upon the following documentary evidence
(i)	The fourth memorandum of the Midland Bank Trust Company Limited document which makes reference to the “land situate in the Parishes of Glyn Ceiriog and Llansilin, Clywd formerly a part of Gelli Farm”. I am satisfied that this is a reference to the Disputed Land;
(ii)	The evidence of the rent payment dated 1st April 2003 which I accept was a payment made by the First Respondent to the Applicant, as tenant of the Disputed Land;
(iii)	The evidence demonstrated in the letters dated 25th October 2005 and the 8th December 2005 from Mr Phillip Meade to the First Respondent referring to the Applicant’s desire to review of the rent of the Disputed Land at £300 per annum, and also to secure a written tenancy agreement for it. The purpose of this correspondence was to provide notice under section 6 of the Agricultural Holdings Act 1986.  I find that both these letters were validly served on the Respondents by first class post to which no response was made, and never challenged at the time.  I appreciate that the Respondents assert that they never received either letter, but I find that they were validly served by Mr Meade by first class post and never returned.  .

(2)	As to the oral evidence given in the case I am satisfied that the Applicant in her evidence was telling the truth as to the documents of title of the Disputed Land having been lost or stolen.  In this regard I consider that the direct evidence she has given on this is sufficient to satisfy the requirements of reliance upon secondary evidence, to which I have referred above. I am also satisfied that there was an oral tenancy agreement of the Disputed Land which had existed from about 1970, the basis of which was an informal arrangement which the Applicant had inherited from her father, and which continued until its contractual expiry on 31st March 2004, there having been no further yearly renewal since then.
(3)	As to the assertion made by the Respondents that they have been in adverse possession of the Disputed Land for the requisite period of 12 years prior to 20th November 2008, I find that the evidence provided by them does not support such a case.  First, as I have stated above, as this is an application for first registration made by the Applicant the provisions of the Land Registration Act 2002, and in particular the transitional provisions contained in section 134(2) of, and paragraph 18(1) of schedule 12 to, the 2002 Act have no application to this case.  This is being so, the Respondents would have to base their claim in law on section 15 of the Limitation Act which provides the period of 12 years for such a claim.  It is clear that the Respondents, in any event cannot demonstrate as legal owners of Hafod-y-Garreg the requisite period of 12 years since they became joint legal owners of that property, or since 26th February 1997 when the First Respondent became sole owner.  It is instructive to note that although the First Respondent’s Father could have provided evidence of a possible claim of adverse possession prior to the 26th February 1997, the period of which could have been added to the periods claimed by the Respondents, no such evidence has been forthcoming: nor was a witness statement obtained from the First Respondent’s step-mother before her death.  
(4)	Even if I am incorrect in this interpretation that the requisite period of 12 years has not been made out prior to 20th November 2008, I am not satisfied in any event that the acts relied upon by the Respondents as set out above demonstrate sufficiently factual possession and the intention to possess (animus possidendi).  Also I find that the factual evidence is consistent with their having been a tenancy of the Disputed Land for many decades.

34.	In such circumstances I find that the Applicant is entitled to be registered as the proprietor of the Disputed Land.  However, by reason of the somewhat unusual circumstances, and the absence of clear documentary title, I shall direct the Chief Land Registrar to register the Disputed Land with possessory title only.  The Applicant will have the opportunity to upgrade this title in due course if documentary, or other evidence becomes available.  

Dated this 19th day of April 2011

By Order of The Adjudicator to HM Land Registry