REF/2015/0272

PROPERTY CHAMBER, LAND REGISTRATION DIVISION
FIRST-TIER TRIBUNAL

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
SIMON MALCOLM CALHAEM

APPLICANT

and

MICHAEL A K GENTIL

RESPONDENT

Property Address: Land at 70-74 Common Road, Kenworth, Dunstable  
Title Number: BD294486

Before: Judge Michell 

Sitting at: 10 Alfred Place, London
On: 16th December 2015

Applicant Representation: Mr Andrew Bruce, counsel, instructed by Solomons Solicitors
Respondent Representation: In person

___________________________________________________________________________

DECISION
___________________________________________________________________________

APPLICATION FOR FIRST REGISTRATION -ADVERSE POSSESSION OFUNREGISTERED LAND –WHETHER POSSESSION INTERRUPTED – WHETHER POSSESSION BY CONSENT 

Cases referred to
 Powell v McFarlane (1977) 38 P and CR 452
Prudential Assurance Co ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85
J A Pye (Oxford Ltd) v Graham [2003] AC 419
 Zarb v Parry [2011] EWCA Civ 1306
 
1.         The Applicant Mr Calhaem is the registered proprietor of The White House at 70-74 Common Road, Kenworth, near Dunstable.  On 18 June 2014 the previous registered proprietor of The White House, Mr MacDonald applied for first registration of an area of unregistered land (“the disputed land”) adjacent to land within the registered title to The White House. After making the application, Mr MacDonald transferred The White House to Mr Calhaem.  Mr Calhaem has taken over conduct of the application for first registration. Mr Gentil has objected to the application. He is a former owner of the White House and claims to have been in possession of the disputed land.  His case is that Mr Macdonald and his predecessor, Mr Williamson did not enjoy in aggregate 12 years exclusive possession of the disputed land because, Mr Gentil says, he was in possession of the disputed land on occasions during the period of 12 years ending on the date of the application. 
 2.         There is little factual dispute between the parties. Mr Gentle purchased The White House in 1971. He lived there with his family until 1980 when Lloyds Bank, which had a mortgage over The White House, took possession. Mr Gentle says that he purchased the disputed land in 1970 from Mr William Seymour and that he paid Mr Seymour £450 for the disputed land. Mr Gentil produced a document on notepaper headed W Seymour Plant Sales and Hire Ltd and dated 26th of June 1971. The document states
           “ received the sum of £450 from Mr MK Gentil of 70 Common Road Kenworth being 	full  payment for land with outbuilding and walls rear of 66 - 68 Common Road 	Kenworth marked red on 1/5/71 site plan and the long-standing right of way in 	yellow”.
The plan shows an area at the rear of 66 Common Road edged red with measurements appearing on it and a strip coloured yellow running from Common Road and alongside the western edge of the land edged red. The measurement given for the western boundary of the land edged red is 71’9” and for the northern boundary is 24’.  A brick shed is shown marked on the plan as being in the south east corner of the land edged red. Mr Gentil says that there was no formal conveyance of the disputed land to him.  However, he says that he used the disputed land as part of his garden throughout the time that he lived at The White House.
3.         I inspected the disputed land on the afternoon prior to the hearing accompanied by the parties and the Applicants’ legal representatives. The White House is set back from Common Road behind railings and two sets of double gates, one set of gates being on each side of the road frontage. On the east side of the front of the house is a garage door behind which is a garage. There is a door at the rear (that is, north end) of the garage such that it is possible to get from the front of the house to the rear garden by passing through the garage. The garage does not form any part of the disputed land but Mr Gentil says that he has a right of way to get from Common Road to the disputed land over land at the front of The White House and through the garage.  The disputed land lies behind the house and to the east of the rear garage doors. The disputed land is in part occupied by an outbuilding currently used as a gymnasium and is otherwise laid to lawn. There is no form of marking between the area of lawn of the disputed land and the remainder of the lawn forming the rear garden of the house. The disputed land is divided from the land further to the east by a brick wall. It and the remainder of the garden of the house are enclosed by walls on the east and west and by a hedge at the north end. The disputed land appears entirely to be part of the garden of The White House and is not physically distinguished from it.  Beyond the hedge at the north end of the garden of The White House there is a large field currently used for the growing of arable crops. There is no footpath over that part of the field which adjoins the hedge at the bottom of the garden of the house. It would be possible for someone in the field to push a way through the hedge and thereby enter the garden.  The only way to access the disputed land is to go through the garage forming part of the house or to go through the house and across the garden or to cross over the field, through the hedge and over the garden.
 4.         The White House was purchased by Mr Williamson from the mortgagee in possession in about January 2001. As part of the initial refurbishment works Mr Williamson installed security gates at the front of the house and the electronic garage doors.  Mr Gentil’s evidence was that the gates were fitted in December 2001. From then on it was not possible to access the disputed land whilst the gates and doors were shut and locked, except by crossing the field at the back of The White House and going across the garden of The White House.  Mr Williamson used the disputed land as part of his garden.  He demolished an outbuilding, which stood on part of the disputed land and constructed another building on the same footprint. 
5.	It is common ground that on Saturday, 20 April 2002 Mr Gentil went with his son to The White House. They gained access by entering through the front door when it was opened by an au pair, going through the house and out into the garden at the rear.  Mr Gentil and his son looked at the disputed land and noticed that the building that had stood on it, a tree and some flower beds had been removed. It is not disputed that Mr Gentil told Mr Williamson that the disputed land did not belong to Mr Williamson but belonged to him.  Mr Gentil produced and showed to Mr Williamson a copy of the title plan for The White House.  In cross-examination, he said that it was obvious from Mr Williamson’s body language that he accepted he did not own the disputed land.  He did not say that Mr Williamson said in terms that he accepted he did not own the disputed land.  Mr Williamson said in his evidence that he was upset to see Mr Gentil.  He did not understand what Mr Gentil was saying and told Mr Gentil that if he wanted to claim the disputed land, he should take the matter up with Mr Williamson’s solicitor.  
6.	On 24 April 2002 Mr Gentil wrote to Mr Williamson demanding that he be provided with full access to "my land, adjacent to your rear garden which I have owned for over 30 years".  Mr Gentle wrote
            “I was not happy at your claim that you owned my land when the title deeds clearly         	show you do not and distressed to find that you had taken down my slate roofed      	garage/ workshop and removed the very considerable contents ... You have without 	the right to do so removed my 28 year old willow tree and a considerable number of           	mature shrubs and plants and trees etc including flower beds.
	….
            I require immediate 24 hour seven days a week unhindered vehicular access which 	will require that you provide me with a remote control for your electric gates the up 	and over front drive-through door and the rear roller shutter.
            Will you please confirm in writing your acceptance of my right of access to my land          	within 10 days failing which I shall apply for a court order to support my rights in this      	 matter”. 
7.         Mr Williamson replied on 17 May 2002 stating that if Mr Gentil would like to pursue the matter further he should correspond with Mr Williamson's solicitors. Mr Williamson did not provide a remote control for the electric gates or the garage doors. Mr Gentil's response was not to write to Mr Williamson's solicitors but to write again to Mr Williamson on 5 June 2002. In his letter Mr Gentil again said that he required unhindered access through the front gates and garage doors, asked to be provided with codes or keys or remote controls for the operation of the gates and doors and stated that Mr Williamson did not purchase the disputed land. Mr Williamson did not reply to this letter and did not provide codes or keys or remote controls. Mr Gentil then instructed solicitors, Messrs John Stevenson and Co, who wrote to Mr Williamson on the 15 August 2002 requiring him to cease trespassing within 14 days and to make offers of compensation for the damage he was said to have caused. There is no evidence that Mr Williamson replied to this letter and there was no further letter from the solicitors to him.
 8.	In 2003 Mr Gentil made an application to HM Land Registry to be registered with possessory title to the disputed land.  Land Registry refused his application because Mr Gentil did not have access to it at that time.
9.         In 2006 Mr Williamson put The White House on the market for sale.  Mr Gentil saw the sales particulars.  He wrote again to Mr Williamson on 6 March 2006 asking for access to the disputed land which he said he wanted to fence off from Mr Williamson's garden so that prospective purchasers were made fully aware that the disputed land was not included in any sale of the White House. The letter included the following paragraph
            " I noticed that despite my many requests that you your family and friends do not use      	or trespass on my land that you still continue to do so -- you may expect to pay           	considerable rental charges for this unauthorised use over the past five years and    	any further future use".
Mr Williamson wrote to Mr Gentil in reply stating that as the disputed land had been part of the garden of The White House for the past 30 years, he had full possession of it and could continue to enjoy it indefinitely.  He said that there was no right of way over The White House and he would treat all correspondence from Mr Gentil as harassment. Asked in cross-examination why he did not put up a fence around the disputed land, Mr Gentil said that it was because of the difficulty of access.  If the gates were locked, he could not gain access to erect a fence.  Mr Williamson did not in the event sell The White House in 2006.
 10.         On 8th May 2008 Mr Gentil and his wife were passing the White House in their car when they noticed that the gates were open and the garage doors were also open. Mrs Gentil said that they were surprised to see the gates and garage open.  They drove past The White House every Friday and usually the gates were locked and there were cars on the drive.  Mr Gentil walked up over the drive and through the garage onto the disputed land. He spent some time on and looking at the disputed land. In his oral evidence Mr Gentil said that he was on the disputed land for about an hour.  He saw that the disputed land had been built up so that the level had been increased and that old railway sleepers had been laid to retain the made up ground.  Mrs Gentil did not go with her husband but remained by the car.  She said her husband came back after about an hour.  Mr Gentil said that he did not notice any one on the land or in the White House and he did not think anyone saw him.  He did not mark the boundary of the disputed land in any way.  After waiting an hour on the disputed land, he left. Mr Gentil made a note to record the date. 
 11.         On 14th August 2010 Mr Gentil wrote to Mr Macdonald.  After asserting that he owned the disputed land and that there was a longstanding right of way to it from Common Road through the garage of The White House, he commented that Mr Williamson had refused his many and continuing requests for access and that from the 1st January 2010 he had imposed “an extremely high punitive rental charge of £4,000 per week” but that Mr Williamson had “chosen to ignore” the charge.  
12.         Mr Macdonald purchased The White House, which was transferred to him on 14th January 2011.  His evidence was that he treated the disputed land as part of his back garden.  The grass was cut weekly and the shrubs were tended to by his property manager.  He entertained guests regularly on the part of his garden that included the disputed land and used a barbecue built into a wall on the disputed land. He did not ever allow Mr Gentil access to any part of his garden (including the disputed land) or let him through the security gates or garage doors.
13.	Mr Gentil wrote many times to Mr Macdonald requiring that he be given access to the disputed land and stating that a “punitive rental charge” would be charged to Mr Macdonald from the date of his purchase in February 2011.  Copies of letters he wrote on 21st March 2011,  14th May 2012, 28th May 2012, 19th June 2012, 25th June 2012, 10th July 2012, 30th December 2012, 8th March 2013, 15th May 2013 and 25th November 2013 were in evidence.  In the letter of 25th November 2013 Mr Gentil stated that he had accessed the disputed land on 19th November 2013.  He said he was horrified by what he called the “vast extent of unauthorised damage to my land”.  He went on to state
            “I refer to the dreadful railway sleepers, the vastly built up land level, the decking at         	the base of my fir tree. Also the patio slab along the side of your annexe with its         	retaining wall – all built on my land without my knowledge or consent.  Part of the     	annexe about two feet or so, is built on my land and covers the foundations where my       	northern boundary wall originally stood”. 
Mr Macdonald said that he regarded Mr Gentil as a person with no legitimate claim and as someone who was trying to extort money from him through pressure and harassment.  He simply filed away letters he received from Mr Gentil.
 14.       Mr Gentil and his sons, Adam and Steven gave evidence as to a visit they made to the disputed land on 19th November 2013. They gained access by walking across the field which lies to the north of the garden of The White House, through the hedge at the bottom of the garden and then walking over the garden up to the disputed land.  There was no one about at the time.  They stayed on the disputed land for about 2 hours.  They spent the time looking at the land and discussing old times.  They left nothing to indicate that they had been on the land. 
15.       Mr Gentil and Adam Gentil gave evidence that they went back to the disputed land on 9th January 2014.  Again they gained access from the field to the north.  There was no one else around at the time.  Mr Gentil also gave evidence that he went onto the disputed land again on 21st March 2014, gaining access as before by crossing the field, going through the hedge at the bottom of the garden of The White House and walking across the garden.  All he did on the disputed land on this occasion was attempt to measure it and take some photographs.    
16.	Mr Macdonald made an application for first registration of the disputed land in form FR1 dated 16th June 2014.  HM Land Registry gave notice of the application to Mr Gentil by letter dated 15th July 2014.  Mr Gentil objected to the application by a statement dated 14th August 2014.  On 19th August 2014 Mr Macdonald transferred title to The White House to Mr Calhaem.   
The Law 
17.	Mr Calhaem’s case is that Mr Macdonald and Mr Williamson were in adverse possession of the disputed land for a period of 12 years prior to the date of the application for registration.   Section 15 of the Limitation Act 1980 provides as follows:
“15(1)        No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
(6)   Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.”
18.         Section 17 of that Act provides
“Subject to— 
(a) section 18 of this Act; . 
at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished”. 
Section 18 deals with settled land and land held on trust and is not relevant. 
19.         Schedule 1, paragraph 1 to the Limitation Act 1980 provides as follows:
“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession in the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action, shall be treated as having accrued on the date of the dispossession or discontinuance.”
 20.         Schedule 1, paragraph 8, provides:
“(1)   No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as ‘adverse possession’) and where under the proceeding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.
(2)                           …..…..
(3)                           ………
(4)     For the purpose of determining whether a person occupying any land is in adverse possession of land it shall be not assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter’s present or future enjoyment of the land.
This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.”
 21.         Thus, the right of action to recover the land is barred under the Limitation Act 1980 whenever 12 years have elapsed from the time when any right of action accrued.  It does not have to be a period immediately before an action is brought.  When the right of action to recover the land is barred, the title of the person formerly having the right to bring the action is extinguished.  
22.         The question to be answered when considering whether a person occupying land is “in adverse possession” for the purpose of Schedule 1 paragraph 8 to the Limitation Act 1980 is 
“…whether the Defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner…Beyond that…the words possess and dispossess are to be given their ordinary meaning.” 
(per Lord Browne-Wilkinson in J A Pye (Oxford Ltd) v Graham [2003] AC 419 at paragraphs 36, 37).     
23.       Legal possession is comprised of two elements:
(1)                 A sufficient degree of physical custody and control (“factual possession”); and
(2)               An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”).  “What is crucial is to understand that, without the requisite intention in law there can be no possession.  Such intention may be, and frequently is, deduced from the physical acts themselves.” (ibid paragraph 40).
 24.       Factual possession has been described as follows:
“It signifies an appropriate degree of physical control.  It must be a single and [exclusive] possession…Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time.  The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed …Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.”
per Slade J in Powell v McFarlane (1977) 38 P and CR 452 at pp. 470-471, cited at paragraph 41 in J A Pye (Oxford) v Graham. 
 25.       What is required for the intention to possess is the intention to exclude the whole world, including the true owner of the paper title, from the land so far as is reasonably practicable and so far as the processes of the law will allow – see per Slade J. in Powell v. McFarlane above.   The intention must not only be the subjective intention of the squatter but the squatter must also show by his outward conduct that he has such an intention.  The intention must be manifested by unequivocal action – see Prudential Assurance Co ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87.  The use of the land must be such that the true owner, if he took the trouble to be aware of what was happening on his land, would know that the squatter was in possession 
            “It would plainly be unjust for the paper owner to be deprived of his land where the          claimant had not by his conduct made clear to the worlds including the paper owner, if         present at the land, for the requisite period that he was intending to possess the land” – per Peter Gibson LJ in Prudential Assurance Co Ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87
26.       Some general guidance as to what is required to bring the possession of a squatter to an end can be found in the judgment of Pennycuick J. in Bligh v. Martin [1968] 1 WLR 804 at 812
	“in the ordinary case of adverse possession … one must find that the [paper title] 	owner took possession in the ordinary sense of that word, to the exclusion of [the 	person claiming adverse possession”.
This was approved as general guidance in Zarb v Parry [2011] EWCA Civ 1306. At paragraph 43 Arden LJ said
            “…the principle on which Bligh v Martin [1968] 1 WLR 804 was decided, namely            that the factual possession of the adverse possessor must be brought to an end, is    	clearly correct and determines the result on this issue.  The principle achieves a simple 	test for ascertaining whether the period of adverse possession has been brought to an   	end.  Interruption will be overt and so it can be more easily proved or disproved if the       	question has to be litigated many years later.  Furthermore, if the paper title owner did        	something less than exclude the adverse possessor, such as plant a flag, put up a notice          	or make an oral declaration  of ownership, the adverse possessor would continue to   	have factual possession in the sense defined in the Pye case [2003] 1 AC 419.  A             person might, therefore, continue to have the intent to possess and factual possession        	throughout the period of any interruption of his adverse possession by symbolic acts          	such as I have mentioned.  It would, in my judgment, be inconsistent with the Pye case       	 if an adverse possessor could at one and the same time fulfil the requirements for          	adverse possession but yet have his possession effectively interrupted by the paper            title owner..”          
So here, entry on to the disputed land by Mr Gentil will not suffice to prevent Mr Wiliamson and Mr Macdonald, if they were in effective control of the disputed land. from being in possession, unless he took back actual possession, i.e. effective and exclusive control of the land.   
Possession by Mr Williamson and Mr Macdonald
27.	There can be no doubt that Mr Williamson had factual possession of the disputed land from December 2001.  From the time of the erection of the security gates and the garage doors in December 2001, Mr Williamson had an appropriate degree of physical control of the disputed land.  From then on he controlled access to it.  Access was then only possible by going through his gates or through his house or through his hedge and over his lawn.  Furthermore, he dealt with the disputed land as an occupying owner would have dealt with it.  He demolished an old building, cut down trees, removed flower beds, raised the ground level, installed railway sleepers to retain the increased ground level and treated it as part of his garden.  No-one else dealt with the disputed land in that way while Mr Williamson was the owner of The White House.  The fact that on a single occasion in 2008 Mr Gentil was able to get onto the disputed land because the security gates and garage doors were left open does not show that Mr Williamson did not have an appropriate degree of physical control of the land.  As Mrs Gentil’s evidence indicated, it was an unusual occurrence for the gates and garage doors to be open.  The incident in 2008 actually demonstrates that Mr Williamson had effective control over access to the disputed land.  Access was only possible if and when he decided to open the gates and doors.  When Mr Macdonald became the proprietor of The White House, he assumed possession of the disputed land, treating it as his garden and exercising an appropriate degree of physical control of it by keeping the gates and garage doors generally locked.   The fact that in 2013 Mr Gentil and his sons gained access to the disputed land for a relatively short period by crossing over the field, through the hedge and over the lawn of The White House does not mean that Mr Macdonald did not have factual possession of the disputed land.  What is required to amount to factual possession is an appropriate degree of exclusive physical control.  He had that appropriate degree of physical control by controlling access from the public highway.      
28.	The acts of possession on the part of Mr Williamson and Mr Macdonald are such as to manifest their intention to possess the land.  By controlling access by erecting and then locking the security gates and garage doors, they each in turn made it clear to the world at large that they intended to possess the disputed land. 

Consent
29.       Mr Gentil argued that the Applicant and his predecessors were his tenants, obliged to pay rent.  This argument is without any legal merit.  The existence of a tenancy depends on an agreement whereby one party agrees to grant possession of land to the other and the other party agrees to take possession.  At no time did Mr Williamson, Mr Macdonald or Mr Calhaem agree to hold the disputed land as tenants of Mr Gentil.  There was simply no tenancy.
Did Mr Gentil bring the possession of Mr Williamson and/or Mr Macdonald to an end?
30.	The issue then arises whether Mr Gentil brought the period of adverse possession to an end when he went onto the disputed land in 2008 or again in 2013.  The answer is that he plainly did not.  He merely entered onto the disputed land for an hour on the first occasion and two hours on the second occasion.  On each occasion, he did not see any signs of the owners of The White House being at home.  He did not exclude either Mr Williamson or Mr Macdonald.  He did not take back effective control of the disputed land.  Mr Williamson and Mr Macdonald retained effective control.  They controlled access by controlling the security gates and garage doors.  Mr Gentil himself accepted that he could not fence off the disputed land because Mr Williamson and Mr Macdonald kept the security gates and garage doors locked.   That is a clear demonstration of the fact that Mr Williamson and Mr Macdonald had and retained an appropriate degree of physical control.     
Conclusions
31.	Mr Calhaem has established that at the date of the application for registration with possessory title, Mr Williamson and then Mr Macdonald had been in possession of the disputed land for consecutive periods which in total exceed 12 years.  Mr Macdonald was at the date of the application entitled to be registered with title to the disputed land.  Mr Gentil has failed in his objections to the application.  I shall direct the Chief Land Registrar to give effect to the application as if the objection of Mr Gentil had not been made.
Costs
32.   My preliminary view is that Mr Gentil should be ordered to pay Mr Calhaem’s costs of the proceedings before the Tribunal.  Mr Calhaem has incurred the costs because Mr Gentil made and persisted with his objection, which has failed.  It is just that Mr Gentil should pay Mr Calhaem’s costs.  Any party who wishes to submit that some different order should be made as to costs, should serve written submissions on the Tribunal and on the other party by 5pm on 19th February 2016.

BY ORDER OF THE TRIBUNAL

DATED this 9th February 2016