NCN: [2015] UKFTT 0152 (PC)
PROPERTY CHAMBER
FIRST –TIER TRIBUNAL 
LAND REGISTRATION DIVISION

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

LAND REGISTRATION ACT 2002

REF NO 2012/0865

BETWEEN

(1) GILLIAN ANN BENITA BLACKALL
(2) NICHOLAS KEYS BLACKALL
(3) JANE LOUISE WHITNEY

Applicants
and

(1)	BIBI SHAHARAZAD MOLEDINA
(2) ASIF MOLEDINA

Respondents

Property address: 239 and 239a London Road, Hadleigh, Benfleet, Essex
Title number: EX825817

Before Judge McAllister
Alfred Place, London
8th and 9th April 2014

Representation: Jonathan Fowles of Counsel instructed by Lloyd Jones & Co appeared for the Applicants; Carl Brewin instructed by Paul Robinson appeared for the Respondents.

___________________________________________________________________________

DECISION
Introduction

1.	The issue in this case is whether the Applicants have acquired title by adverse possession of an area of land abutting the rear of 239-243 London Road, Hadleigh, Benfleet (‘the Disputed Land’), or, in the alternative, whether the Applicants have acquired a right of way over the Disputed Land. In addition, and in any event, the Applicants claim a right of way over a strip of land (‘the Strip’) running north to south between the western portion of the Disputed Land and a service road to the rear.

2.	The Applicants are the freehold owners of number 239 and 239a London Road (‘239/239a’). The Disputed Land is a small yard, enclosed by a wooden fence and gate on its northern side and eastern side and to a large extent by a concrete wall to its south. This wall separates the Disputed Land from the back of 241 and 243, allowing a separate rear access from these properties to the service road leading to a car park.  The Disputed Land is open on its western side, which is a right angle to the rear entrance of 239/ 239a London Road. It appears to form part of and be of a piece with 239/ 239a London Road (although, as I have said, it is in part behind numbers 241 and 243) and access can only be gained through a gate at the rear of 239 leading to the service road. This gate has a large sign on it saying ‘Keep Clear of Gate. In Constant Use.’ A plan showing the Disputed Land (in pink) and the Strip (in blue) is attached for ease of reference. (Plan 1)

3.	239/ 239a consist of a three storey building. The first floor is a shop; the upper floors are office space. 239 is the shop; 239a are the office premises. The shop has been occupied since 2003 by Salvation Army Trustee Company, and is used as a charity shop. The office premises were let from 1984-5 until the last tenant left in 2012. 239a currently stands vacant. 

4.	The Respondents are the owners of a number of properties on or near London Road, including 247 London Road (used by the Post Office) and 249-251 London Road (used by them as a chemist), as well as land to the rear of 247 and 249 London Road. They purchased their first premises in 1995, and Mr Moledina worked in the neighbourhood from 1990.

5.	By a transfer dated 16 October 2008, Hubert Henry Petley transferred what has been referred to as ‘the Respondent’s Land’ to the Respondents for the sum of £10,000. Mr Petley had bought the land from Messrs Adams by a conveyance dated 28 June 1979.  The Respondents’ Land includes the Disputed Land. The northern part of the Respondents’ Land is used for parking off the service road. In effect, the Respondents’ Land is divided into two parts by the wooden fence on the north side of the Disputed Land.  This is shown by Plan 2. 

6.	The Respondents were registered as freehold owners of the Respondents’ Land under title number EX825817 on 16 February 2009. The land had previously been unregistered. This is a point of some importance, as will be explained further below, as it brings into play the question whether, if the Applicants are successful in their application, their interest is an over-riding one.

7.	By applications dated 19 April 2012, the Applicants applied to be registered as owners   of the Disputed Land  pursuant to paragraph 18 of Schedule 12 to the Land Registration Act 2002 (that is to say, under the Limitation Act 1980), and for a right of way by prescription over the land tinted blue without or without vehicles.

8.	The Respondents objected by letter dated 21 May 2012.  Their case, in essence is that when they purchased their land from Mr Petley they were told that any use of the Disputed Land by the Blackhalls was permissive. Mr Petley had been a tenant of 239 from 1978 to 1982. It is clear from the evidence that he never made any use of the Disputed Land after that date (although there is an issue as to whether he tried to make use of it at one stage). Mr Petley died on 13 April 2011. There is very little documentary evidence relating to the Disputed Land between 1978 and 2008.  

9.	For the reasons set out below I will order the Chief Land Registrar to give effect to the application for title by adverse possession of the Disputed Land, and to note the benefit of a right of way over such part of the Respondent’s Land as is coloured blue on Plan 1. 

Background and evidence

10.	On 31 July 1945 Mrs Chalk, the mother of Gillian Blackall, the First Applicant, purchased 239/239a. She had been a tenant of the building since 1932.  At that time the premises were known as No 8 Central Parade Hadleigh. The ground floor was used by her as a greengrocers’ shop. Mrs Chalk and her family lived above 247 (now owned by the Respondents) from 1947 to 1963.

11.	The conveyance to Mrs Chalk included a right of way over the passage at the rear of the property to and from Rectory Road (‘the Old Right of Way’).  On 2 August 1958 the premises are transferred by Mrs Chalk into the names of herself and her husband. On 8 September 1975 Mr and Mrs Chalk granted a 7 year tenancy of 239 to a George Tillier together with the Old Right of Way.

12.	The Old Right of Way was 4 feet wide immediately to the rear of 239/239a, and then widened to 10 feet in the direction of Rectory Road. It cut through various strips of land to the rear of the parade of shops fronting onto London Road, which have been purchased over time by the Respondents.  The topography changed in 1976 when the Council built a concrete service road serving the rear of 237-251 London Road. This connects with Rectory Road. The Old Right of Way was thereby extinguished.

13.	At about the same time as the new service road was built, a wooden fence was erected on the north side of and enclosing the Disputed Land. There is a dispute as who constructed this fence. The Applicants state that it was built either by them or by the Council. The Respondents allege that it was  built by Mr Petley.  But the effect is that, since at the latest 1980 or thereabouts, the Disputed Land has been behind a fence and gate. The evidence, which was not challenged is that the gate in the fence, leading to the service road, is closed at night and is secured by a padlock. Mrs Chalk, the Applicants, and their tenants over the years have controlled the access to the Disputed Land. No-one else has had access to or made use of the Disputed Land, or any of the land behind the gate.  The other properties along London Road have access to the service road from the rear of their properties.

14.	In August 1978 Mr Tillier assigned his lease to Mr Petley, who used 239 as a greengrocer’s shop.  As stated above. Mr Petley purchased land including the Disputed Land in June 1979. I have seen a letter dated 22 March 1979 from his solicitor, advising on the purchase. It is clear from this letter that Mr Petley was concerned about a right of way to the rear (although by then, of course, the topography had been altered). The advice was that if the Chalks had a right of way over the same land then he would enjoy the same right. 

15.	 By a deed dated 17 June 1980 Mr Petley released the Old Right of Way over the previously existing access road which now formed part of the land he had purchased in 1979. The release refers to a ‘conveyance of even date’:: there is, so far as I am aware, no such conveyance. It is more likely that the release was intended to refer to the June 1979 conveyance. In any event the effect of the release was that Mr Petley was releasing whatever rights he had. He did not need this release  to block off the Disputed Land  on its eastern side as alleged by the Respondents.

16.	A further letter form his then solicitor in June 1993 indicates that Mr Petley was considering selling or letting the Respondents’ Land, and that there may have been an issue with ‘adjoining  owners’ parking on the land or using it as a right of way. This concern may have referred either to the Disputed Land or to the land to the north of the fence.  Other than these letters, there is no documentary evidence relating to the reasons why Mr Petley decided to purchase the Respondents’ Land, nor what use he made of this land (or any part of it) thereafter until the sale to the Respondents in October 2008.

17.	 Mr Petley left 239 on 24 December 1982 in something of a hurry (on the Applicants’ case) owing some 6 months rent. They lost all contact with him, and were not aware of the sale of the Respondents Land. It is the Applicants’ case that the period of adverse possession by them and their family began when Mr Petley effectively surrendered his lease of 239 in December 1982.

18.	The Respondents were able to contact Mr Petley before he died. He was by then well into his 80s. It is their evidence that he told them that he left in December 1982, but only because Mrs Chalk would not agree to the grant of a new lease. This assertion is not wholly credible: Mr and Mrs Chalk had served a section 25 notice on Mr Petley on 23 February 1982, stating that they would not oppose the grant of a new tenancy, and Mr Petley applied to court for a new tenancy, as he would have to do, even if the request for a new tenancy was unopposed. It is difficult to see, therefore, how he could allege that he left because a new tenancy was refused. It may well be that he could not pay the increased rent. 

19.	In September 1982 Mr Chalk died, and 239/239a passed by survivorship to Mr Chalk.  In June 1983 Gillian Blackhall was appointed her mother’s receiver. In 1985 a lease was granted by Mrs Chalk (acting through her daughter) of 239. The demise included the Disputed Land in so far as ‘the lessor was able to demise the same’. The same wording was used in relation to the right of way granted from the rear garden or yard of 239 to Rectory Road.  In June 1988 Mrs Chalk died and in July 1990 her personal representatives vested 239/239a in the Applicants.

20.	In September 1995 the Applicants granted a lease of 239 to the Salvation Army, together with the Disputed Land, and a right of way, again in so far as they were able to grant the same. In January 1988 the solicitors then acting for Mrs Chalk (Bridge Hurrell) wrote to an estate agent (who had presumably made inquiries as to the purchase of the properties owned by Mrs Chalk) stating that, the ownership of the land immediately behind both premises owned by Mrs Chalk (239/239a, and 247/247a) was not known but that no-one seemed to have claimed title to those pieces of land. It appears, therefore, that as at 1988, Mrs Chalk’s solicitors were not aware of the purchase of the Respondents’ Land by Mr Petley some 9 years previously.   

21.	In 1995 the Respondents purchased 247 London Road, and in 1997 they purchased land to the rear of 249. In 2008 Boots the Chemist sought to obtain the lease of 241-245 London Road. 

22.	I heard evidence from the First Applicant, Mrs Blackhall, and from her husband, and from the Respondents. I have also seen a statement prepared by Yvonne Guilfoyle, Mr Petley’s daughter. There was no satisfactory explanation for her non attendance, and, in all the circumstances of the case, I attach no weight to her evidence, which, in any event, does not shed light on any significant issue. 

23.	 Mrs Blackhall is the mother of the Second and Applicants. Her first direct involvement with 239/239a was in 1985 when she granted a lease of 239 to Circle Services. To her knowledge, over the years, the various tenants of 239/239a (including Mr Petley) used the Disputed Land for a variety of storage purposes and for parking. In particular, Circle Services  used the Disputed Land for the storage and delivery of heavy printing and copying machines; the Salvation Army erected a shed on the Disputed Land which was destroyed by fire two years later; other tenants used the Land for parking and unloading of equipment. As stated above, the Disputed Land and the right of way over the Strip were demised and granted to all the tenants, albeit qualified by the wording ‘so far as the lessor was able to do so’. The existence of the lockable gate onto the service road meant that no-one else had access to or used the Disputed Land. 

24.	 Mrs Blackhall had grown up at number 247, above the florist shop, and could recall the area when the Old Right of Way led to marshland and grass land. 247 was purchased by the Respondents in 1995, and is now a post office. A local firm of solicitors, (Bridge Hurrell, then Andrew Hurrell), had acted for the Applicants and the Chalk family for a number of years. It is her recollection  that in about 2000 the firm had applied to register the Disputed Land in the name of the Applicants  but for some reason had not succeeded. It is to be noted that Andrew Hurrell now act for the Respondents. The firm have their offices at 227 London Road, overlooking the rear of the parade of shops, including the Disputed Land. 

25.	Mrs Blackhall was pressed on the question who erected the fence around the Disputed Land, and when. It was her evidence that her family had erected the fence and had maintained it over the years, although it is fair to say that in her Statement of Case she stated that it might have been erected by the Council. The fence was, in any event, erected at about the time of the new development.  I have seen a receipt for repairs to the fence in September 2004 totalling some £640,00 apparently caused by a vehicle reversing into the fence. Sometime earlier, in 1997, steel tubing re-enforcement had been inserted by them to strengthen the fence. The fence was re-coated by the Blackhalls every 4 or 5 years.  Mrs Blackhall refuted the suggestion that Mr Petley had erected it. It seems to me that it is more likely that the fence was erected either by Mrs Chalk or by the Council at about the time the new service road was built: Mr Petley was only a tenant at that time. It also appears to be the case that the Council resurfaced both the service road and, at the same time, the Disputed Land. The effect of the change in topography as a result of the service road and car park being built was that Mr Petley purchased the Disputed Land and a small area of land on the other side of the northern fence, which seems to have been used over the years as additional car parking space used freely by everyone. 

26.	An issue of possibly some importance in this case is whether Mr and Mrs Chalk, and in due course Mr and Mrs Blackhall knew about the purchase of the Respondents’ Land by Mr Petley. It appears, as I have said, that the family’s solicitor did not know. It is also clear that Mr and Mrs Blackhall did not tell the Respondents in September 2008 that Mr Petley owned the Land. 

27.	Mrs Blackhall’s evidence on this point was a little confused. She stated that she had no idea that Mr Petley had bought the Respondents’ Land, and presumed or believed that the Disputed Land belonged to her family. The witness to his signature on the 1979 conveyance to him was the then tenant of her mother’s at 247, but, again, she stated that she knew nothing of this. In cross examination Mrs Blackall accepted that her father might have said to her that Mr Petley had offered to sell the Disputed Land to him, but it meant nothing to her at the time. The evidence, such as there is, (in the form of the leases and the letter written by the family solicitors in 1988) suggests that the solicitors, at least, knew that the family did not have paper title, but also that they did not know who did. 

28.	Mrs Blackhall’s evidence was that Mr Petley left owing rent. She was asked what attempts were made to find him. An address had been given by him on the 1954 Act tenancy papers. She stated that her then solicitor attempted to find him, but failed.  Mrs Blackhall denied that Mr Petley at any time gave her or her family or the tenants of 239/239a  permission to use the Disputed Land and the Strip. The only involvement she and her husband had with Mr Petley was when their tenant of 239, Paul Hastings, contacted them at some point in the late 1980s or early 1990s to say that Mr Petley had asked if he could remove the back fence and put up stalls. The Blackhalls refused, saying the Disputed Land belonged to them. In cross examination Mr Blackhall said that he was not sure if the stalls were to be erected on the north side of the fence. He was also not entirely clear whether Mr Petley had tried to put stalls up and was told not to, or whether he had simply not tried. Again, in relation to the letter written to Mr Petley by his solicitors in 1993, referring to a possible dispute over the use of the Disputed Land, her evidence was that she knew nothing of this. 

29.	Mr and Mrs Blackhall married in 1953. Mr Blackhall confirmed his wife’s evidence. He stated that the northern fence around the Disputed Land was repaired or recoated every four or five years to deal with the damage caused by cars parking immediately behind the fence. He also confirmed that he had no idea that Mr Petley had purchased the Disputed Land, and only found out about his death in the local paper.

30.	Another issue of some importance concerns the discussions between the Blackhalls and the Respondents in 2008, at a time when it was apparent that Boots the Chemist were interested in purchasing 241-245 London Road, and obtaining planning permission, presumably for change of use.  The Respondents were concerned about this, as they saw Boots as a threat to their own pharmacy business at number 249. There were three meetings between the Blackhalls and the Respondents.

31.	Mr Blackhall’s evidence was that, in the course of the first meeting in early September 2008, he informed the Respondents that the Disputed Land had been in their family for a long time. He also accepted that he and his wife used the term ‘no-man’s land’ to describe the land because, as he explained, they had not found the deeds to this land and did not know who had paper title to this land. He stated that he was not told by the Respondents that they intended to purchase the Disputed Land, and repeated his wife’s evidence that thy first found out that the Respondents’ Land had been purchased by the Respondents following letter to their tenant in December 2009. This letter gave the tenant notice that permission would be henceforth required before any parking could take place on the Respondents’ Land, and that the Respondent would be making changes so that they could make use of the land themselves. There was no reference in this letter to the permission apparently given by Mr Petley to the Applicants or their predecessors. 

32.	On 11 September 2008 Mr and Mrs Blackhall wrote a letter to the local planning department, objecting to the application made by Boots in relation to 241-245. This letter had been drafted for them by the Respondents (the Respondents dispute this: they say that the Blackhall’s wrote the letter. This point, is not, it seems to me, of any great significance). It is clear that a number of shop owners were concerned about the arrival of Boots.  One of the issues raised in the letter  was the rear entrance from the service road. The letter complained of possible traffic congestion on the private land to the rear of the shop (that is to say, between the rear fence of the Disputed Land and the service road, which is now part of the Respondents’ Land) and a reference was made to their tenants and their vans, and the possible blocking of ‘my’ security gates.  

33.	The Second Respondent, Mrs Moledina, explained the reason for the meeting with the Blackhalls in early September 2008. Boots had recently acquired the leasehold interest in 241-245 London Road. The Respondents were concerned that they would increase the use of their rear access for out of hours services and deliveries which might have an effect on their pharmacy business at 249-251 London Road. The Respondents were keen to purchase as much of the service road at the rear of 237-253 London Road as they could.  In 2008 they began to make enquiries to find out who owned the remainder of the service road. A caution against first registration had been registered in respect of the service road immediately behind Boots. This land (known as land to the rear of 245-247 London Road) was sold to them by a Mrs Taylor in August 2008.

34.	 Their solicitors, Andrew Hurrell, investigated title and discovered that the Respondents’ Land was unregistered. It is perhaps surprising that this firm, given its long standing connection with the Chalk and Blackhall families, and given its location, did not, it seems, consider making any inquiries of the Blackhalls or their tenats as to their use of the Disputed Land. 

35.	At the first meeting between Mr and Mrs Blackhall and the Respondents in early September 2008, Mrs Blackhall repeatedly stated that the Disputed Land was no-man’s land, and that she did not know who owned it. It is the Respondents’ case that they made it clear to the Blackhalls that they intended to purchase this land. As I have said, this was denied by the Blackhalls.  They asked to see the Applicants’ deeds. The Respondents’ case is also that they were not aware that the Disputed Land was used as part of 239/239a by the tenants, although Mrs Moledina accepted that that part of the Disputed Land immediately behind the land at the rear of 239 had been used for some time for limited parking. 

36.	In the course of discussions with Mrs Taylor, the Respondents were given a copy of a conveyance dated 1 June 1976 from Yenson Limited to Messrs Adams. Attached to this was a memorandum referring to the subsequent conveyance in 1979 to Mr Petley. The Respondents were able, with very little difficulty, to trace Mr Petley to an address in Convey Island.  The Second Respondent met him at his home, together with his daughter, Yvonne Guilfoyle, at the end of September 2008.  

37.	Mr Petley’s account, as told by the Second Respondent, is as follows. As a tenant of 239 he needed to unload fruit and vegetables from the rear of the premises, and to store wares in two freezers. Mrs Chalk refused to allow him access to park his vehicles behind the shop. He therefore decided to purchase the Disputed Land (as part of the slightly larger title, the Respondents’ Land). In order to fence off the Disputed Land on the eastern side, he needed to enter into a deed of release with the vendors. I have dealt with this point above: the deed released his rights, and is therefore of no relevance. Mrs Moledina also stated that Mr Petley told her that he had installed the fence on the north side and the gate to the service road. I find this highly improbable and prefer the evidence of the Blackhalls on this point. 

38.	Mr Petley also told the Second Respondent that, after having left 239,  he offered to sell the Disputed Land to Mrs Chalk; that he had regularly visited the land to ensure that it remained vacant and that he tried to use the Land between 1988 and 1993, but found he could not, because Mrs Chalk had told him that his lease had ended. On informing Mrs Chalk that he owned the Land, he seems to have agreed with her (according to the Second Respondent), in 1993, that she could use the Land as long as he owned it or until his death.  In a further witness statement Mrs Moledina stated that Mr Petley had told her that a lease of the Disputed Land was granted to the Applicants and their predecessors.  There is no documentary evidence of either a licence or a lease, nor could Mrs Moledina explain why Mr Petley would have entered into such an arrangement (other than to suggest that it might have stopped squatters using the land).

39.	 Mrs Moledina was asked why she did not go back to the Blackhalls with this information, and she replied that she could not do so because she had no documents. It is nonetheless a feature of this case that the Respondents did not inform the Blackhalls that they had located Mr Petley or that he had told them that the use of the Disputed Land by the Blackhalls and their tenants was with his consent. If it was really the case that Mr Petley had said that the Disputed Land could be used by the Chalk/Blackhall family until as long as he owned it, or until his death, then clearly that is a matter which should have been raised with the Applicants.  Mt Moledina gave evidence broadly  to much the same effect as his wife, albeit that he was rather less clear about what happened in the September 2008 meetings.  

40.	Following the letter to the tenant of 239 from Andrew Hurrell (by now acting for the Respondents) the Applicants solicitors contacted the Respondents’ solicitors in January 2010, asserting that the Applicants had acquired title by adverse possession. Draft particulars of claim were prepared by the Applicants in March 2011 to restrain the Respondents from re-taking possession of the Disputed Land.

     Issues

41.	It seems to me, in the light of the evidence set out above, that the following issues fall to be determined:
(i)	Can the Applicants establish 12 years possession of the Disputed Land through their family, or their tenants, prior to the date of first registration in February 2009?
(ii)	Was such possession with the consent or licence of the previous paper title owner, Mr Petley?
(iii)	If the Applicants can establish adverse possession, does this over-ride first registration of the Disputed Land by the Respondents?
(iv)	In the event that the Applicants cannot establish adverse possession, or in the event that their rights do not over-ride first registration, can they establish a right of way by prescription over the Disputed Land?
(v)	In any event, can they establish a right of way over the Strip?

      Adverse possession

42.	I have no hesitation in finding that the Applicants can establish 12 years exclusive factual possession of the Disputed Land. I accept the evidence that that the Land has been fenced and gated since the construction of the new service road by the Council, and that, following Mr Petley’s departure in December 1982, it has been used solely for the benefit of, and by, the tenants of 239 and 239a in the various ways described by the Applicants. There is only one access to the Disputed Land, and that is through the gate which (at least at night) is locked and padlocked. There is no access from the south side over the concrete wall. In effect, therefore, the Disputed Land, albeit that part of it forms a dog leg behind 241 and 243, is all of a piece with rear of 239/239a. 

43.	Whether the fence and gate were constructed by the Council or the Chalk family is really of no relevance. I accept that the Chalk and Blackhall families have repaired the fence as and when necessary. The letter written by them (or for them) to the Council in September 2008 refers clearly to ‘my gates’: this is a clear indication that the land behind the gates was in the possession of the Applicants. 

44.	The Respondents seemed to accept, in giving evidence, that the Applicants made use of the Disputed Land: this seems to me a sensible and necessary admission. In any event, there is something of a contradiction between their pleaded case that no use was made of the Disputed Land, and their case that they were told by Mr Petley that he granted a licence (or even a lease) of the Disputed Land to Mrs Chalk. I am not satisfied that Mr Petley told  them the Respondents that he had granted a licence but more relevantly I do not accept that he did grant such a licence (or indeed a lease) 

45.	 There is no evidence of such a licence (or lease), and it seems to me inherently unlikely. There is no reference to it in the letter to Mr Petley from his solicitors in 1993.  This  letter suggest that, at least at that time, Mr Petley may have taken some interest in the Disputed Land, (at least possibly as a result of putting his affairs in order to prepare his Will)  and may have considered selling or renting it. But, as I say, there is no reference to permission having been given to anyone to use the Disputed Land. The reference to adjoining owners parking on the land is ambiguous: it may well refer to that part of the Respondents’ Land on the north side of the fence.

46.	Counsel for the Respondents suggested (but without any evidential basis) that Mr Petley might have entered into such an arrangement with the Chalk family in lieu of paying the outstanding rent he owed. It seems to me very much more likely that Mr Petley had no further use for the Disputed Land once he gave up his tenancy of 239: the whole purpose of purchasing the land was to make it easier to run his shop from 239. Whilst I accept that this is not necessarily inconsistent with Mr Petley having granted the Chalk/Blackhall family permission, the fact that every lease granted since 1985 allows use of the Disputed Land and a right of way over another part of the Respondents’ Land indicates to my mind that, whilst there may have been a question mark about the ownership of the paper title, the lessors treated the land as their own.

47.	Counsel for the Respondents made great play of the fact that the Applicants referred to the Disputed Land as ‘no man’s land’ and did not assert their possessory title in the course of the September 2008 meetings. It seems to me that there is nothing in the point. They may, at some stage in the past, been told that Mr Petley had purchased the Disputed Land, but this does not mean that they knew he owned the Disputed Land in 2008. It is not unusual for a squatter who can establish title by adverse possession not even to be aware of this right until his possession is put in issue and/or advice is taken. Although the Respondents now assert that they told the Applicants of their intention to purchase, it is equally possible that they too were keeping their intentions to themselves, in the hope that no claim would be made by the Applicants, or possibly to ensure that Boots did not get wind of their plans. As I have said above, it is a little surprising that, having been told by Mr Petley of the licence (not, on their case revoked) granted to the Applicants, they did not go back to the Applicants on this point or make any further enquiries.

48.	In short therefore I am satisfied that the Applicants and their predecessors were and continue to be in factual possession of the Disputed Land with the necessary intention to possess. Their user of the land was not with permission of the then owner, Mr Petley. Their use of the Disputed Land, through their tenants, continued up to and beyond the purchase by the Respondents of the paper title. It is settled law that any encroachment on land belonging to third parties will enure for the landlord’s benefit where it is close to the demised land and occupied by the tenant together with the demised land: see Tower Hamlets LBC v Barrett [2005] EWCA Civ 923.  

49.	I should add that it was not suggested by Counsel for the Respondents that Mr Petley’s apparent attempts to put stalls somewhere on the Disputed Land in the late 1980s or earl 1990s amounted to an interruption of possession: this must be right. In any event, even if time ran again from sometime early in the 1990s, 12 further years elapsed by February 2009 when the Disputed Land was registered in the Respondents’ name.

Did first registration in 2009 over-ride the Applicants rights under the Limitation Act?

50.	One of the aims of the Land Registration Act 2002 was to limit the number of unregistered interests which over-ride first registration. In broad terms, such interests are those which should be apparent from an inspection of the title documents, or a reasonable inspection of the land itself, or are such that a first registered proprietor might reasonably be expected to be aware of.  The category of such interests is narrower than the old categories found in section 70(1) of the Land Registration 1925.

51.	Section 11 of the 2002 Act reads as follows:
(1)	This section is concerned with the registration of a person under this Chapter as the proprietor of a freehold estate.
(2)	Registration with absolute title has the effect described in subsections (3) to (5)
(3)	The estate is vested in the proprietor together with all interests subsisting for the benefit of the estate.
(4)	The estate is vested in the proprietor subject only to the following interests affecting the estate at the time of registration:-
(a)	interests which are the subject of an entry in the register in relation to the estate,
(b)	unregistered interests which fall within any of the paragraphs of Schedule 1,
(c)	interests acquired under the Limitation Act 1980 of which the proprietor has notice.

52.	Paragraph 2 of Schedule 1 provides that the interest belonging to a person in actual occupation, so far as relating to land of which he is in actual occupation (except for a settlement under the Settled Land Act 1925) will over-ride first registration. The new provision does not exactly mirror section 70(1)(g) of the 1925 Act. Importantly, in relation to this case, there is no protection for the interests of persons in receipt of rent and profits per (that is, if they are out of actual occupation).

53.	Section 11(4) (c) is new, and marks a departure from previous law. Under the Land Registration Act 1925, the registered owner took subject to the squatter’s rights whether or not the squatter was in occupation, and whether or not those rights were discoverable. The more restrictive provisions in the 2002 Act are consistent with the desire to strike a fairer balance between landowner and squatter by shifting the balance in favour of the registered owner. Even though a squatter has already become the owner of a legal estate in unregistered land, his interest is in effect demoted to an equitable interest dependent on notice.

54.	The Law Commission Report 271, Land Registration for the Twenty First Century, explained the factual situation sought to be avoided by section 11(4)(c). A, the squatter, takes possession of unregistered land owned by B. After 12 years, A becomes the owner. A vacates, and B resumes possession. B in turn sells the land to C (before he has been in possession for 12 years). C is registered as owner. In this situation, C does not have notice of A’s rights, and therefore takes free of those rights. If A were able to defeat the registered owner’s title, this would, it is said, seriously undermine the conclusive nature of the register. 

55.	There is one further relevant provision.  Until October 13, 2006 a right acquired under the Limitation Act 1980 before the coming into force of Schedule 1 to the 2002 Act had overriding status as of right, and without more: see paragraph 7 of Schedule 12 to the 2002 Act, inserting a new paragraph 15 in Schedule 1. This provision has no application here.

56.	In short, there are three ways in which a person who has acquired title by adverse possession can override a first registration. The first is by virtue of the three year transitional provision, which has now expired. The second is by being in actual occupation. Occupation through a tenant will not, however, be sufficient. The third way in which such a person’s rights are protected is where the registered proprietor has notice.

57.	There is no definition of notice. The report provided (at paragraph 3.47) that ‘ notice will have its usual meaning and will include matters that the first registered proprietor ought to have discovered from reasonable inspections and inquiries, as well as matters that he actually knows’.  This reflects section 199(1)(ii)(a) of the Law of Property Act 1925. Moreover, elsewhere in the 2002 Act where a person is required to have actual notice of some matters before he or she can be bound by a right, this is made explicit: see, for example, paragraph 2(1)(c) (ii), and paragraph 3(1)(a) of Schedule 3 to the 2002 Act.

58.	It seems to me right that notice should include constructive, as well as, actual notice. In unregistered conveyancing, the courts have developed a doctrine based on a duty of diligence. A purchaser will have notice if he has actual notice of some incumbrance and a proper inquiry would have revealed what it was, or deliberately abstained from inquiry in an attempt to avoid having notice or omitted by carelessness or otherwise to make an inquiry which a purchaser acting on skilled advice should have made (see generally Megarry and Wade, The Law of Real Property, 8th ed, para 8-005 ff). I can see no reason, either as a matter of construction of section 11(4), or as a more general matter of policy, why a narrower meaning of ‘notice’ should apply in this instance.  

59.	In the present case the following facts are relevant to notice. First, the Disputed Land is entirely enclosed and, to all intents and purposes, forms part of the rear of 239 and 239a. Second, it is obvious that the gates are in constant use and locked at night. The Respondents accept that they saw vehicles parked on the Disputed Land. Third, whilst I accept that the Blackhalls stated that the Disputed Land was ‘no man’s land’ they did not say that they did not own the Land, and, I find, also said that the Land had been in their family for a very long time. There is an important distinction between claiming ownership and claiming possession. Fourth, if it is the case that Mr Petley told the Respondents that he had granted Mrs Chalk a licence (or a lease) until his death, that is a fact which should have been explored further, and, if properly explored, would have (or at the very least, might have) led to the true nature of the occupation by the tenants becoming apparent. Fifth, it is an odd feature of this case that, in any event, no investigation was made by the Respondents’ solicitors or by them as to the basis of the tenants’ occupation of the Disputed Land. Sixth, if the Respondents were not told by Mr Petley that he had granted a licence to the owners of 239/239a, then it was all the more incumbent on them to investigate the nature of the use and occupation made by the tenants of the Disputed Lsnd, and indeed, the Strip.

60.	In short, it seems to me that if the Respondents believed there was some sort of licence granted to the Applicants and their predecessors to occupy the Disputed Land then, in all the circumstances of the case, they should have put them on notice and made further inquiries: if they did not believe this, then they had, in my judgment, actual notice of the Applicants’ claim under the Limitation Act 1980. On this point, I am not satisfied that Mr Petley told the Respondents that a licence had been granted to the Chalk family.

Right of way claims
 
61.	If I am wrong about the Applicants entitlement to alter the register of the Disputed Land on the grounds that they had acquired title by adverse possession prior to first registration, I have no hesitation in concluding, on the basis of the lay out of the Land and all the evidence I have heard,  that they have acquired a prescriptive right of way over the Disputed Land. I am satisfied that the Land was used, as of right, as a means of gaining access to and from the rear of 239/239 with and without vehicles and that this use was not with the permission of Mr Petley.  It was also used for parking. 

62.	Finally, it also follows that the Applicants are entitled to note the benefit and burden of an unrestricted right of way with and without vehicles over that part of the Respondents’ Land tinted blue on Plan 1 in order to gain access to the gate and beyond that to the Disputed Land, and to 239 and 239a. This right was also acquired by prescription, and was not permissive.

     Costs

63.	The usual practice, in this jurisdiction, is for costs to follow the event. The Applicants may file and serve a schedule of costs in form N260 or the like by 1 July 2014. The Respondents may raise such objections or make such representations as they deem appropriate within 14 days of receipt of the schedule. Subject to any reply by the Applicants, I will determine the issue of costs on paper.

BY ORDER OF THE TRIBUNAL

Dated this 16th day of June 2014