REF/2015/0513

PROPERTY CHAMBER, LAND REGISTRATION DIVISION
FIRST-TIER TRIBUNAL

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
(1) ROBERT PETER PORTER
and
(2) MARTINE CLAUSE JEANNE PORTER

APPLICANTS

and

(1) PATRICIA FRANCES CROOK
and
(2) SALLY CORINNA CROOK

RESPONDENTS

Property Address: Land at Church Lane, Westerfield, Ipswich IP6 9BE
Title Number: sk356656

Before: Judge Michell

Sitting at: Alfred Place, London
On: 7th April 2016

Applicant Representation: Mr Dermott Thomas, counsel, instructed by Baker Gotelee
Respondent Representation: Mr Steven Woolf, counsel, instructed by Gisby Harrison

___________________________________________________________________________

DECISION
___________________________________________________________________________

FIRST REGISTRATION  – ADVERSE POSSESSION  – WHETHER POSSESSION – SUCCESSIVE SQUATTERS 

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

1.	Mr and Mrs Porter are the registered proprietors of a house now called “Wentworth” but until 2005, called Langafel, at Westerfield, near Ipswich.  On 28th October 2014 they applied for first registration of an area of land adjoining the north wall of the rear garden of Wentworth.  The area forms part of a larger area that has for some years been used as an extension to the garden of Wentworth.  Mr and Mrs Porter are the registered proprietors of the other part of this larger area under title number SKY227156.  Patricia and Sally Crook are the registered proprietors of land adjoining to the west.  They have a paper title to the land sought to be registered and have objected to the application.     

2.	Mr and Mrs Porter claim that the paper title of the Crooks has been extinguished under the Limitation Act 1980 and that they have acquired title under that Act.  Their case is that the land was fenced in to form an informal garden by their predecessor in title Mr Scott Longhurst in 2000 and that since then the land has been in the adverse possession of the owners of Westerfield.

3.	Mr Longhurst was registered as proprietor of Wentworth on 2nd June 2000 under title numbers SK192580 and SK190780.  Wentworth was then a new house that had been constructed in part of the grounds of a house to the east, called The Mount.  At that time, the rear boundary of the garden was an old brick wall.  Mr Longhurst believes that Wentworth was constructed in an old kitchen garden and that the brick wall at the rear of the garden was an original wall of the kitchen garden.  There was (and remains) a door towards the east end of that wall giving access to land to the north.  Mr Longhurst said in his witness statement that at the time he purchased, the land to the north of the brick wall was uncultivated and overgrown scrub land with brambles, weeds and a few mature hawthorn trees.  He made enquiries to discover who owned it.  A part on the east side formed part of Poplar Farm owned by Mr and Mrs Pipe.  He was unable to discover the owner of the part on the west side, being the land the subject of these proceedings.  In his witness statement, Mr Longhurst said that in about September 200 he arranged for contractors to erect a post and wire fence along the western, northern and eastern boundaries of the disputed land and a part of the adjoining land owned by Mr and Mrs Pipe, lying between the door in the brick wall and the disputed land.  He then planted about 50 saplings on the disputed land. He said that in 2002 he agreed to purchase the adjoining land from the then owner of The Mount, Mr Kalbraier, who had acquired it and other land from Mr and Mrs Pipe.  He said that having purchased it, he arranged for the fencing to be repositioned so that it incorporated the land he had purchased with the disputed land.  In his oral evidence, Mr Longhurst said that he had the fence erected around both the disputed land and most of the area of land he later purchased, at the same time i.e. in September 2000.  When he purchased the land in 2002, he moved the fence at the north end by about 3 or 4 feet to properly define the boundary.  He said that the saplings were planted in both the disputed land and the land he later purchased.  The saplings were spindly bare-rooted saplings, about 3 feet high.  He said that a contractor cut the brambles; brush cut the ground and planted a lot of the trees.  Thereafter, he watered the trees and his gardener brush-cut that area 3 or 4 times a year.  Asked about the condition of the fencing, Mr Longhurst said that it was “unsophisticated” but he would not describe it as “poor”.  It consisted of wooden posts, about 4 feet high with strands of wire and chicken wire at the base.    .        

4.	At the time of the sale of Wentworth to the Porters, the estate agent’s particulars included the following in the description of the property
	“To the rear of the property is an attractive red brick wall with a gate giving access to 	an informal garden with a variety of young trees being interspersed”   

5.	Mr and Mrs Porter obtained a RICS Homebuyer Report and Valuation from James Aldridge Chartered Surveyors on 5th April 2005.  The report included the following description of the gardens and boundaries
	“There are good size gardens, reasonably regular in shape and bounded by rough 	hedging some of which is rather thin, by timber fencing, some of which leans, by brick 	walling in need of repair.  The mains section is reasonably tended with a number of 	semi mature trees …
	Beyond the cultivated area is an area of uncultivated ground, said to be included with 	this property and bounded by poor post/wire and chicken wire fencing”.

6.	As the vendor, Mr Longhurst did not have a paper title to the whole of the “informal garden”, the Porters negotiated a reduction of £15,000 in the price they were to pay and asked Mr Longhurst to provide a statutory declaration.  Mr Longhurst’s solicitors provided a draft statutory declaration to the Porters’ solicitors.  The Porters’ solicitors asked that the statutory declaration be more specific as to when the land was fenced off, the type of fencing and the extent of maintenance.  The statutory declaration as made by Mr Longhurst on 6th June 2005 included the following
	“I fenced off … the Land in September 2000 with posts and wires and have managed 	and enjoyed the Land as part of the Property since then until the present day.  This use 	has been without let or hindrance, without payment and without the consent of any 	other party”.  

7.	At the time of the sale, Wentworth was unoccupied and not tenanted, as appears from the Sellers’ Property Information Form signed on 27th January 2005.  Mr Porter in the course of his oral evidence stated that he had been told that Wentworth had been let out for a couple of years before he purchased it and that he had been told the tenants used the land to the north of the wall quite a lot.  He also said that Mr Longhurst had continued to employ a gardener to maintain the garden at Wentworth up to the time of the sale to Mr Porter. 

8.	Mr Porter’s evidence was that when he purchased Wentworth, the area to the north of the brick wall was enclosed by a fence of wooden posts and wire netting.  In his witness statement, he said that it had obviously been tended, although the grass was long.  In his oral evidence, he said that the grass was in tufts, like a meadow.  There were then about 40 young staked saplings, along with several more mature trees.  In cross-examination, he said that there were a lot of brambles and the fence was overgrown in parts.

9.	Having purchased Wentworth, the Porters did nothing with the land to the north of the garden wall until the winter of 2006/2007 when they arranged for local contractors to clear the fenced land of brambles and weeds and level it so that the Porters could grass it over and use it as an orchard.  After the land had been cleared, they planted a number of young fruit trees.         

10.	The Respondents seek to rely on an aerial photograph taken on 10th September 2006 and on another aerial photograph taken on 26th March 2007.  They say that no fence around the disputed land can be seen in the earlier photograph.   There is certainly in the 2006 photograph a marked contrast between what the photograph appears to show on the east boundary and the appearance of the west boundary.  There is a clear straight line visible along the east boundary, which is wholly consistent with there being a fence along that boundary.  A similar straight line can be seen at least along the eastern side of the northern boundary. There is no such straight line or any other indication of a fence along the western boundary.  The disputed land appears overgrown in the photograph.  There is a clear contrast between the state of the disputed land and the grazed field to the east and the mown lawn of Wentworth to the south.  

Findings of Fact
12.	There can be little doubt that the land was fenced in by Mr Longhurst so that it could only be accessed from Wentworth.  It is now fenced in.  Mr Longhurst gave evidence that he fenced in the land in September 2000 with posts and wires.  I accept that evidence.  There are no grounds for me to find that the fence was erected at some later date. Mr Porter gave evidence that the land was already fenced when he purchased Wentworth in June 2005 and that he had not subsequently altered the fence.  Counsel for the Crooks did not seek to persuade me that Mr Porter’s evidence was not reliable or accurate.  As Mr Porter said that there was a fence at the time he purchased and that he did not fence the land himself and his evidence was not challenged as being unreliable, I accept that the fence put up by Mr Longhurst’s contractors was in place at the time Mr Porter purchased and subsequently.  The aerial photograph taken in 2006 does not show the fence on the west and north sides because it was then overgrown with brambles and weeds.  

13.	I accept Mr Longhurst’s evidence that he planted saplings on the disputed land and the adjoining area to the east.  He had the vegetation on the disputed land cut from time to time but did not do anything else of any real note on the disputed land.  At the time of the sale, the disputed land was noticeably overgrown with weeds and brambles around the edges and in patches but there were areas of rough tufted grass. 
 
14.	Mr Porter made no use of the disputed land from the time he and his wife purchased Wentworth in June 2005 until he had the land cleared in the winter of 2006/2007. From then on he and Mrs Porter have used it as an orchard. 

The Law

15.	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.”
16.         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. 
17.         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.”
 18.         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.”
19.         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.  
20.         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).     
21.       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).
 22.       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. 
 23.       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
Decision
24.	Mr Longhurst took possession of the disputed land in September 2000 when he caused a fence to be erected.  The effect of the erection of the fence was to exclude anyone from getting onto the land except by going through the garden of Wentworth.  By erecting the fence, Mr Longhurst took exclusive physical control of the disputed land.  The erection of the fence, the planting of trees and the periodic clearing of vegetation amounted to factual possession.  Mr Longhurst was using the land as an owner would and had the true owner looked at the land, he would have seen that Mr Longhurst was in possession.  These acts also manifested an intention on the part of Mr Longhurst to possess the disputed land.
25.	Mr Longhurst remained in possession of the disputed land at the time of the sale to Mr and Mrs Porter.  The land remained fenced such that it could only be accessed through the garden of Wentworth.  Though overgrown from time to time, it would have appeared because of the fencing to be physically a part of the grounds of Wentworth.    
26.	As Mr Longhurst was in possession of the disputed land in June 2005, he had a possessory title to it, which he could transfer.  Mr Longhurst transferred his possessory title to Mr and Mrs Porter in June 2005.  Though Mr and Mrs Porter made no use of the disputed land for about 18 months from the time they purchased it until the time their contractors cleared it, they did not abandon possession of it.  The disputed land remained fenced in as part of Wentworth and accessible only through the grounds of Wentworth.  Mr and Mrs Porter had control of the disputed land and were in possession of it.
27.	I conclude that the paper title to the disputed land was extinguished by limitation prior to the date of the application of Mr and Mrs Porter to be registered as proprietors of it, being 27th October 2014.  Accordingly, I shall direct the Chief Land Registrar to give effect to the application of the Applicants to be registered as proprietors of the disputed land.           
Costs
28.	My preliminary view is that the Crooks must pay Mr and Mrs Porter’s costs to be assessed.  The usual order is that the unsuccessful party pays the costs of the successful party.  Mr and Mrs Porter are the successful party.  Any party who wishes to submit that some different order ought to be made as to costs should serve written submissions on the Tribunal and on the other party by 5pm on 16th June 2016 

DATED THIS 16TH DAY OF MAY 2016

BY ORDER OF THE TRIBUNAL