REF/2015/0065

PROPERTY CHAMBER, LAND REGISTRATION
FIRST-TIER TRIBUNAL

LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN

S G Estates Limited

APPLICANT(S)

and

Neil Couzens & Julie Ann Couzens

RESPONDENT(S)

Property Address: Land on the North-east side of The Foundry, Mount Street, Rhostyllen, Wrexham, LL14 4AU
Title Number: CYM614534

Sitting at: Chester County Courts
On: Wednesday 26 August 2015

Applicant Representation:	Allington Hughes Law
Respondent Representation:	

Made By:  	The Principal Judge
	Elizabeth Cooke

DECISION

KEYWORDS	: Adverse possession

Introduction and the plan
1.	SG Estates Ltd (“the Applicant”) has applied to register title to a small area of land (“the Land”) in Rhostyllen, Wrexham, in North Wales. Mr and Mrs Couzens (“the Respondents”) have objected to the company’s application and accordingly it has been referred to this tribunal. Below is a plan of the Land, hatched black. I visited it on 25 August 2015 , accompanied by the parties, the day before the hearing of this case in Chester on 26 August. At the hearing the Applicant was represented by Mr Barrow of counsel. Mrs Couzens spoke for the Applicants. I am grateful to them both for their careful and well-organised presentation of their arguments.

2.	I have decided to direct the Registrar to register the title applied for by the Applicant. In the reasons that follow I first set out the relevant facts, and then discuss the two legal issues that I have had to decide in order to reach my conclusion.

The facts 
3.	The following brief chronology is not in dispute.

4.	In 1959, by a conveyance dated 7 January 1959, from Bersham Foundry Ltd, Mr Irvine Hayward bought The Old Foundry in Rhostyllen, shown edged with a line    on the plan.

5.	In 1999 the Respondents moved into 4 Station Road, immediately to the south of the Land. Not long afterwards they made a gate in their northern boundary, giving them access to the Land. From then onwards they cultivated part of the Land, and cleared rubbish from it; the extent to which they did so is not agreed.

6.	In 2006 Mr Couzens received from Mr Hayward’s solicitor a letter stating that Mr Hayward owned the Land, and giving him permission to access the Land through the gate and to make a path on it. Mr Cozens countersigned the letter and returned it to the solicitors. I say more about that letter below.

7.	By a transfer dated 17 March 2014 the Applicant bought from Mr Hayward both The Old Foundry, to which Mr Hayward of course had a paper title, and the Land, to which Mr Hayward did not have a paper title. The title he offered was a statutory declaration that he had been in possession of the Land from 1959 onwards. The Applicant then applied to register his title to both properties.

8.	After making that application the Applicant arranged for the land to be cleared with a digger; Mr and Mrs Couzens were upset by this because it disturbed and damaged the plants and trees they had planted. They say that it was done in breach of a condition of the Applicant’s planning permission for the development of The Old Foundry site. Since then the Applicant has not accessed the land; much of it is now mown, and some of it planted, by the Respondents and, as I saw, it looks very tidy and attractive.

The issues for decision
9.	Accordingly the Applicant’s case, which it must prove on the balance of probabilities, is that Mr Irvine Hayward, who sold the land to it, acquired title to the Land by possession, years ago.

10.	Mr and Mrs Couzens say not only that Mr Hayward did not acquire a possessory title, but also that they have been in possession of the Land since they bought the adjoining property, no 4 Station Road, in 1999.

11.	Accordingly I have to decide first whether Mr Hayward acquired a possessory title to the Land. If he did not, the Applicant has no title. But if he did acquire title by possession, secondly I have to decide (again on the balance of probabilities) whether Mr and Mrs Couzens acquired title by possession as against Mr Hayward from 1999 onwards. 

Did Mr Hayward acquire title to the Land by possession?
12.	To have acquired title by possession Mr Irvine must have been in physical possession of the Land and in addition must have intended to possess it and to treat it as his own, to the exclusion of everyone else, so far as possible, and without consent from anyone. This legal requirement is not in dispute; the authorities are Powell v McFarlane (1979) 38 P & CR 452 and JA Pye (Oxford) Ltd [2002] UKHL 30.

13.	The Applicant’s evidence for Mr Hayward’s title is the latter’s statutory declaration, dated 13 September 2013. It states that he bought The Old Foundry in 1959 and has owned it ever since (albeit for part of that period jointly with I Hayward Ltd, which he described as his company); and that ever since 1959 he or his company has been in “full, free and undisturbed possession” of the Land.

14.	The declaration goes on to say:

“The use the Land has been ancillary to the use of [The Old Foundry] part of the Land providing the access to [The Old Foundry] from Station Road and the remainder has been used by me or my Company from time to time for the purpose of storage of scrap metal and waster associated with the business which [was] conducted from [The Old Foundry]…”

15.	Mr Hayward’s declaration also says that he put up gates erected across the eastern boundary of the Land by 1960, which have by now been removed or stolen. It is agreed that these gates followed the curved line near that boundary on the plan, and the remains of the metalwork were pointed out to me at the site visit.

16.	The declaration states that no-one else claimed ownership of the Land or disputed his right to ask people to remove their vehicles from it; and that at times he cleared scrap metal and waste and repaired the access route running through the Land by laying rubble, bricks or shale. It also points out that Mr Hayward used to be paid an annual wayleave payment from the local electricity company for an electricity pole near the eastern boundary of the Land, but that some years ago he accepted a one-off-final payment for it; the wayleave agreement dated 1961 and signed by Mr Hayward as owner is exhibited to the declaration.

17.	The Applicant also produces a series of photographs of The Old Foundry and the Land which it says were taken in the mid-1970s. The Applicant says that they show that the Land was used as access to The Old Foundry and as storage for scrap metal and waste. The photographs, and a copy from the 1967 Ordnance Survey map of Rhostyllen, were part of the trial bundle. Neither party referred to them at the hearing and it is difficult to see what they show without further explanation.

18.	Be that as it may, the Applicant says that Mr Hayward has been in possession of the land from 1959 onwards, in a way that meets the legal requirements for adverse possession. Mr Hayward’s statutory declaration is in effect uncontested by Mr and Mrs Couzens because they were not in the area at the time to which it relates, namely the years before 1999 – although Mrs Couzens said herself that the Land had been Mr Hayward’s scrapyard and had been used as vehicular access (not the main entrance) to The Old Foundry. The wayleave agreement was made in 1961, when of course he had not yet acquired title, and would have been made without any formal investigation of title (as Mrs Couzens established by writing to Wayleaves South); but it demonstrates that he was in possession of the Land at that early date and already appeared to be the owner. The Respondents say that they did not see Mr Hayward on the land until 2003; but if he acquired title to the Land by his possession for over 12 years while he was using The Old Foundry then the fact that he did not use it later makes no difference to that acquired ownership.

19.	Accordingly I find that Mr Hayward took possession of the land from 1959 onwards and used it along with The Old Foundry, for access and as a scrap yard, and thereby acquired a legal estate in fee simple in it – that is lawyer’s jargon for what is more usually called freehold ownership. His evidence is clear and uncontradicted.

20.	Councillor Pritchard, called as a witness by Mr and Mrs Couzens, gave evidence at the hearing that supported that finding, because he explained that the local council had always assumed that Mr Hayward owned the Land and had numerous discussions with him on that basis; of course, it had no documentary evidence of ownership, but it made that assumption because he was in possession of it. H also recalled events in around 1970 (he was born in 1962) when Mr Hayward opened the Land to provide vehicular access to the site, but closed it a few years later. This is entirely consistent with Mr Hayward’s own evidence and supports the Applicant’s case. However I would have made my finding even had Mr Pritchard not given that evidence.

Did Mr and Mrs Couzens acquire title by adverse possession after 1999?
21.	Was Mr Hayward displaced, or dispossessed, by the Respondents after they bought no 4 Station Road?

22.	The Respondents say in their statement of case that since 1999 they have been “in full, free and undisturbed possession” of the Land. They say that they have maintained it and created natural boundaries (by which, Mrs Couzens explained at the hearing, they mean a blackthorn hedge on the western boundary, and logs to reinforce the tree boundary to the north), and that they have policed it (by asking people to remove their rubbish) and cleared it of domestic waste.

23.	At the hearing Mrs Couzens explained – and it is not in dispute – that the area to the north of the Land used to be an amenity site (what we used to call a tip), but before 1999 it was closed and given protected status so that it could not be used for tipping. People still wanted to dump their waste, and would therefore do so on the Land. On moving in, in 1999, Mr and Mrs Couzens became aware that there was in effect a tip next door, and so they made a gate and set about clearing the land, getting rid of old sofas and the occasional dead animal and so on. They made a paved path, and grew vegetables and herbs.

24.	The extent of that cultivation is not agreed. The Applicant produced photographs of the Land taken in 2011 in which cultivation is not apparent. They are taken from the eastern boundary, and I accept Mrs Couzens’ explanation that the cultivation is near to their boundary and further east. I find that the Respondents did cultivate part of the land. The extent of the cultivation is probably best seen from the diagram attached to the Land Registry survey in 2014 (when Land Registry sent a surveyor following the Applicant’s application for registration), and it seems to have amounted to around a third of the land but without a clear boundary between cultivated and uncultivated. I also find that they did indeed clear rubbish, and challenged people who tried to use the land as a tip.

25.	Mrs Couzens called Councillor Mark Pritchard at the hearing, and he confirmed that during the period from 1999 onwards there was a massive improvement in the state of the Land and that fly tipping there virtually stopped. His evidence in his statement was that the Respondents did a very good job of clearing the land, and I accept his evidence to that effect.

26.	The Respondents did not enclose the land. They did not fence the western end, although they planted a blackthorn hedge. The eastern boundary was the subject of some discussion at the hearing. The eastern boundary is closed off by posts and chains, over which we all stepped in order to walk on to the Land for the site visit. Mr and Mrs Couzens say that they closed off half the boundary in this way in 2014, after the bulldozer incident. They agree that the other half had already been closed off in this way, as indeed can be seen in the 2011 photographs produced by the applicant. The applicant also produced at the hearing an email from a Ms Ceri Hayward about the installation of that earlier fencing, which she says was done 10 years ago. She did not attend the hearing and I attach no weight to the email as evidence.

27.	At any rate, Mr and Mrs Couzens did not enclose the land. (There was reference in the evidence to their having put up a fence after the digger went in in 2014, but I do not know where that fence ran and it was removed soon after it was put up). Fencing is not essential to a claim to adverse possession. But in the absence of fencing a claim of exclusive possession of the whole of the land has to be looked at very carefully, and I find that although Mr and Mrs Couzens cultivated part of the land and cleared away rubbish they were not in exclusive physical possession of the land.

28.	Aside from that there is another reason why they could not have acquired title by adverse possession. Fatal to their case is a letter from Mr Hayward’s solicitors, Skeggles, to the Respondents  dated 1 December 2006, whose contents are so important that I quote it in full:
Dear Mr Cousins
Our Client: Irvine Hayward
Land at Bersham Foundry Rhostyllen
We act on behalf of Irvine Hayward who, as you know, owns Bersham Foundry, a property onto which your property abuts, your northern boundary being part of one of the southerly boundaries of our client’s property.

You will recall a conversation that you had with our client some two or three years ago when he spoke to you about the creation of a gate in your northerly boundary, and your formation and sue of a pathway across our clients property.

You will also recall that our client said that you would be permitted o retain the opening in your northern boundary and cross our clients property until you were told not to do so. In other words, our client was, as a result of that conversation, effectively giving you verbal consent by way of Licence.

Our client does not acknowledge that you have any easement or right across his land, as you know.

Will you please acknowledge receipt of this letter and acceptance of its terms by signing the copy and returning it to us in the Stamped Addressed Envelope provided.

Yours faithfully
A Clark
Steggles.
29.	The letter is counter-signed by Mr Couzens, three days later, and was returned by him to Skeggles as they requested.

30.	Mr Couzens was present at the hearing but did not give evidence. Mrs Couzens was not party to the conversation to which the letter refers and she does not remember her husband discussing the letter with her.

31.	As Mr Barrow points out, the letter appears to be – and, I find, it is – an acknowledgement by Mr Couzens of Mr Hayward’s ownership of the Land. It states that Mr Hayward is the owner of the Land – I note the terms of the first paragraph and what is said about boundaries – and Mr Couzens in signing and returning it accepts that, and accepts the permission given in it.

32.	Accordingly the letter has two legal effects. First it is a written, signed acknowledgement of the title of the party (Mr Hayward) whose title the Respondents claim to have displaced by adverse possession. The effect of such an acknowledgement is that it starts the adverse possession clock again; if the Respondents are going to claim title by possession they have to start from 2006, and they therefore have at most nine years’ possession to date (see sections 29 and 30 of the Limitation Act 1980). But the second effect of the letter is that they have not been in adverse possession at all because the letter states that they are there by permission, and they accepted that permission. Their possession cannot be adverse.

33.	Mrs Couzens argued, ingeniously, that while the letter gives them permission to have a gate and to cross the land, it does not give permission for gardening. So it does not, explicitly; but it leaves Mr Hayward free to withdraw permission to access the Land at any stage and for any reason or none, and accordingly anything the Respondents did on the land was by his permission. They were not in possession as of right. They might have tried to exclude the world, or at least the world’s rubbish; but they knew that they had no entitlement to exclude Mr Hayward, and they accepted his right to exclude them.

34.	Accordingly I find not only that Mr Hayward had acquired title to the Land by 1999, but also that the Respondents did not subsequently acquire title to it. Mr Hayward was the freehold owner of the Land and sold it to the Applicant in 2014. The Respondents’ objection to the Applicant’s application to register title to the Land fails.

35.	I have not discussed in this judgment the evidence given about events in 2014, when the Applicant sent in a digger to clear the Land. The Respondents say that the Applicant did so in breach of a planning condition, and did so in order to destroy evidence of their cultivation. I have not seen a planning condition (only minutes of the local planning authority’s deliberations) and I make no finding about that; it is wholly irrelevant to the matters I have to decide.

36.	Accordingly the objection of the Respondents fails, and I shall direct that the Chief Land Registrar to cancel the Respondents’ objection to the Applicant’s application to register title to the Land. 

Costs
37.	In this jurisdiction costs follow the event save in exceptional circumstances. I am therefore minded to make a costs order in favour of the Applicant. It may be that the parties can reach agreement on that basis. If they cannot do so, I shall permit the parties to make representations about costs.  I direct that the Respondents should submit any written argument on costs no later than 5pm 8 October 2015, and the Applicant may reply no later than 5pm 23 October 2015.  I shall then consider the matter further. 

w