Right of way – Registration – Adverse possession – Registered proprietors of passageway appealing against declaration by county court that respondents entitled first registration of title – Whether respondents’ predecessor showing requisite intention for adverse possession – Appeal allowed
A narrow “passageway” ran between two buildings owned by the appellants (the office and the workshop). The appellants also owned a petrol station and a supermarket, both of which were close to the office and the workshop and through which an access road ran from London Road to Ruskin Road in Stanford-Le-Hope, Essex. The passageway and the workshop were within the same registered title and the appellants were registered as the proprietors in 2017 when they applied for planning permission to replace the office and workshop with a single unit.
The respondents jointly owned the property known as Hollis House, 1 Ruskin Road, Stanford-Le-Hope. The passageway went from the access road to their garden. There was a locked gate at the access road end of the passageway and the respondents said that it had always been controlled by their predecessor in title (B) who had acquired title to the passageway by adverse possession. The respondents claimed that the registration of title to the passageway was mistaken and sought rectification of the register to add the passageway to their own title. The Land Registry rejected their application but the county court decided that there was sufficient evidence to show that they had been in actual possession of the passageway and had had the requisite intention to possess it for sufficient time to qualify for registration under the transitional provisions in the Land Registration Act 2002 applicable to adverse possession claims. The judge made declarations and orders accordingly.
The appellants appealed contending that B had not shown the requisite intention to possess to establish adverse possession and the first registration of the passageway was mistaken.
Held: The appeal was allowed.
(1) An owner or other person with the right to possession of land would be readily assumed to have the requisite intention to possess, unless the contrary was clearly proved. The slightest acts done by or on behalf of an owner in possession would be found to negative discontinuance of possession. The position, however, was different from a case where the question was whether a trespasser had acquired possession. In such a situation the courts would require clear and affirmative evidence that the trespasser, claiming that he had acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts were open to more than one interpretation and he had not made it perfectly plain to the world at large by his actions or words that he had intended to exclude he owner as best he could, the courts would treat him as not having had the requisite intention and consequently as not having dispossessed the owner: Powell v McFarlane (1979) 38 P&CR 452 applied. Buckinghamshire County Council v Moran [1990] 1 Ch 623 and JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2002] 28 EG 129; [2003] 1 AC 419 followed.
In relation to enclosure, the erection and locking of a gate at the end of an accessway could be an equivocal act and it might not have been done with the intention of excluding the owner. In Littledale v Liverpool College [1900] 1 Ch 19, the court refused to accept that the installation of a locked gate by a person with the benefit of a right of way over the land to which the gate controlled access was an unequivocal act of possession. The gate was there to protect the right of way from being invaded by the public and referable rather to the exercise of the right of way than to acts of user such as to constitute dispossession.
(2) In the present case, B’s statutory declaration was at least equivocal as to his intention to possess the passageway. The purpose of the locked gate was consistent with controlling access to the passageway rather than intending to exclude the owner. When the owner wished to gain access there did not appear to be any problem in doing so; nor did B seem to have asserted that he was now the owner of the passageway. The clearest evidence that B did not believe that he owned the passageway was the fact that he did not even purport to transfer title to it to the respondents. As there was no explanation for that in the statutory declaration, the only proper conclusion that the judge should have drawn was that B never had the requisite intention to possess the passageway. The judge had only addressed factual and physical possession. He did not consider that equivocal acts were fatal to a claim for adverse possession. If the gate was there to discourage intruders from coming into the garden of Hollis House. There was no unequivocal intention to possess the passageway, as in Littledale. The intention was to protect Hollis House from unauthorised intruders gaining access through the passageway over which the owners of Hollis House had a right of way. There was no need to take possession of the passageway because the right of way was all that the owners of Hollis House needed and it was what they were protecting. The judge did not appear to have considered the intention question from that perspective.
Furthermore, B’s statutory declaration was not a contemporaneous document; it was made more than 30 years after the events that it described, and it was made in the context of a dispute having arisen and the fact that B had not transferred title to the passageway to the respondents. It was critically important for the judge to weigh the evidence contained in B’s statutory declaration with the contemporaneous evidence, in particular the surveyor’s report of 2004, the photographs taken by him, and the statutory declaration made by the appellants’ predecessors. B’s use of the passageway to carry rubbish out to his car, and to store items for dumping was consistent with a right of way and/or an easement of storage. The judge had not adequately tested B’s evidence against the contemporaneous evidence or assessed whether it provided good enough evidence of B’s alleged possession and intention to possess the passageway.
(3) Accordingly, the declaration and order for rectification of the register would be set aside. The respondents’ action would stand dismissed.
Max Thorowgood (instructed by Indra Sebastian Solicitors, of Harrow) appeared for the appellants; Robin Howard (instructed by Hattens Solicitors, of Grays, Essex) appeared for the respondents.
Eileen O’Grady, barrister
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