Right of way – Registration – Adverse possession – Respondent registered proprietors of passageway appealing against declaration by county court that appellants entitled to first registration of title – High Court allowing appeal and setting aside declaration and orders made by county court – Appellants appealing – Whether judge wrongly permitting respondents to run new point on appeal – Appeal dismissed
A narrow “passageway” ran between two buildings in Stanford-Le-Hope, Essex owned by the respondents (the office and the workshop) to an access road. The passageway ran from the back of a house belonging to the appellants. The appellants had a registered title to their house but that did not include the passageway. It was instead included in the registered title to the respondents’ workshop.
The appellants claimed title to the passageway based on adverse possession of the passageway by their predecessor (B), who lived in their house for some 40 years between 1977 and 2017. They sought rectification of the register accordingly.
The Land Registry rejected their application but the county court upheld the claim to adverse possession and declared that the appellants were entitled to be registered as proprietors of the passageway with title absolute and ordered rectification of the register.
The High Court allowed the respondents’ appeal against that decision setting aside the declaration and orders made by the county court: [2021] EWHC 330 (Ch); [2021] PLSCS 48.
The appellants brought a second appeal contending that the judge erred in law by permitting the respondents to run a new point on appeal. The suggested new point was that in fact their predecessor (J) had a good paper title to the passageway, rather than merely the possessory title with which he (and subsequently the respondents) were registered.
The title to the passageway was not registered until 2005. The appellants’ case was that B had by 2003 acquired a good title by adverse possession, having been in possession for in excess of 12 years. Necessarily therefore that question had to be decided by reference to the principles applicable to unregistered land.
Held: The appeal was dismissed.
(1) Under an open contract for the sale of unregistered land the vendor was obliged to make a good title to the land by providing to the purchaser the records of past transactions, such as sales, mortgages, grants of probate and the like. The aim was to show an unbroken chain of title ending with the vendor himself. The vendor only had to take it back to a good root of title (such as a conveyance on sale, legal mortgage or assent) which was at least 15 years old (the period specified by the Law of Property Act 1969). A vendor who could satisfy that requirement had a “good title” free from incumbrances which could be proved in the manner required by law. Such a title could be forced on an unwilling purchaser. A paper title was one that could be demonstrated by reference to such a chain of transactions.
(2) In the context of claims for adverse possession, the contest was usually between the paper owner and the adverse possessor or squatter. In the present case, it was neither necessary nor sufficient for the respondents to establish that J had a paper title to the passageway. It was not sufficient, as even if they had, it would have been defeated if the appellants could establish that B had 12 years’ adverse possession of the passageway. It was not necessary, because if J had been in possession of the passageway, he and hence the respondent had a better right to it than the appellants unless they could establish 12 years’ adverse possession by B. Unless they could do that, they had no pleaded claim at all: all the relief they sought was predicated on being able to establish his adverse possession for the requisite length of time.
On the evidence, the question whether J had a paper title to the passageway was not raised at trial. It was not positively pleaded and there was no evidence before the court of any chain of title ending with J. The closest that the evidence came to it was their statutory declaration which asserted that they had inherited the land from their father who had owned it for 44 years, but that did not purport to prove a paper title.
(3) An appellate court would not generally permit a new point to be raised on appeal if the point either required new evidence or the evidence at trial would have been different had it been run below. It was not disputed that the objection that a ground of appeal raised a new point was a substantive objection that could be taken at the hearing of the appeal notwithstanding that permission to appeal had already been granted: the grant of permission to appeal was not itself permission to the appellant to run a new point. An application for permission to appeal in the High Court often proceeded without any prior opportunity for the respondent to raise such an objection. In those circumstances the High Court should not have permitted the paper title point to be run on appeal: Singh v Dass [2019] EWCA Civ 360 followed.
(4) However, the paper title issue was wholly irrelevant to the question whether the appellants could establish a title by adverse possession. That turned on whether the county court erred in the weight it gave to B’s statutory declaration, and whether that evidence sufficiently proved an intent to possess. The essential reasoning was that B’s acts were equivocal as to his intention to possess the passageway. That did not depend on whether J did or did not have a paper title to it. It depended solely on what B’s intention, to be inferred from his acts, was.
The essential reason why the High Court allowed the appeal was that it concluded that the acts which were relied on to prove that B had been in adverse possession of the passageway were equivocal and insufficient to prove that he had the requisite intention to possess. That was fatal to the appellants’ claim. That conclusion was not dependent on whether or not the respondents’ new point should have been permitted, or was well founded: the question whether the respondents’ predecessor had a paper title to the passageway or not was irrelevant to the question whether B’s acts demonstrated the necessary intention to possess.
Robin Howard (instructed by Hattens Solicitors, of Grays, Essex) appeared for the appellants; Brie Stevens-Hoare QC and Max Thorowgood (instructed by Indra Sebastian Solicitors, of Harrow) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Amirtharaja and another v White and another
