The Victorians built a huge number of churches. But the passage of time, crippling costs of repair, and dwindling congregations have caused many to close, leaving church commissioners to decide their fate. If all else fails, a church may be demolished and the site redeveloped, or added to the churchyard.
The closure of Holy Trinity Church, near Newcastle upon Tyne, raised a novel question that is not directly answered by any of the recorded authorities on the law of adverse possession. Had the church barred the paper title to a burial vault, which lay directly beneath the church, by controlling and preventing access to it?
The answer is relevant, not just to the parties, and in similar cases, but also to owners of unregistered land (which remains subject to the rules laid down in the Limitation Act 1980), should they find themselves in a similar position. Consider, for example, land that is ripe for redevelopment but for the fact that it is completely surrounded by a ransom strip. Would paper title to the land survive if the ransom strip owner has controlled and prevented access across to it for more than 12 years? King v Benefice of Newburn in the Diocese of Newcastle [2019] UKUT 176 (LC); [2019] PLSCS 110 answers this question for us.
Vaulting ambition
Holy Trinity Church in Dalton was designed and built for Edward Collingwood, who conveyed it to the church building commissioners in 1837. But he excepted and reserved a vault under the central aisle of the nave from the conveyance, together with rights to open, use and repair it, so that he and his family could be buried there.
The church closed in 2004 and members of the public were locked out – for safety and security and to protect Collingwood family memorabilia. In due course, the church commissioners decided to dispose of the building, so that it could be put to residential use. But the great-great-grandchildren of Edward Collingwood did not want the vault to be disturbed and the ensuing disagreement about its ownership (which arose out of the church’s application for first registration of title to the land) was referred to the First-tier Tribunal (Property Chamber).
The tribunal accepted that Edward Collingwood had retained the paper title to the burial vault. However, there was no exterior access to it; the vault was accessible only by lifting the floor of the church. Consequently, Judge Elizabeth Cooke ruled that successive incumbents of the church or the church authorities had been in physical possession and control of the vault, with the intention of possessing it, since the last family interment there in 1940, or since the closure of the church in 2004, and that the paper title to the vault had been barred.
Cryptic question
The great-great-grandchildren appealed to the Upper Tribunal (Lands Chamber) (the UT) on the ground that those claiming adverse possession of unregistered land must show that they have been in factual possession of the land, without the landowner’s consent, for at least 12 years, with the relevant intention to possess it. And, in this case, there was no evidence that representatives of the church had ever even entered the burial vault. Furthermore, correspondence from the church authorities contradicted their claim that they had treated the vault as if it were their own.
The church authorities argued that the very nature of the vault meant that no one was going to open and enter into physical occupation of it. Powell v McFarlane [1977] 38 P&CR 452 established that “factual possession signifies an appropriate degree of physical control”. Their control of the church, and of access to the vault, and their search for an alternative use for the building constituted an unambiguous assertion of control. They acknowledged that the Collingwood family had visited the church from time to time to pay their respects, but, after the church was locked, had to obtain consent from the church in order to do so.
Access
The great-great-grandchildren observed that the church had never denied them access to the vault. They claimed that a right to use and repair the vault must include rights of access to it. Alternatively, Pwllbach Colliery Co v Woodman [1915] AC 634 confirmed that the court can imply an easement in order to give effect to the parties’ intention that land should be used for some definite and particular purpose. Or, if needs be, there was an easement of necessity to the burial vault.
The UT did not need to consider this last point. It agreed that an easement includes such ancillary rights as are reasonably necessary to its exercise or enjoyment, and that access to the vault was clearly ancillary to the right to use and repair it. Alternatively, it was prepared to imply a Pwllbach, or common intention, easement into the 1837 conveyance.
Possession
Furthermore, the church had never taken factual possession of the burial vault. The UT accepted that the church might have been able to assert a possessory title if it had refused to allow family interments, or had disinterred the family coffins and buried them elsewhere, or had interred other coffins there. But that had not happened here.
Consequently, the church had not shown that it had had exclusive possession of the burial vault, and was not entitled to disturb it. But the judge noted that this might ultimately lead to the demolition of a fine, historic Grade II listed building, which would not be in anyone’s interest, and urged the parties to find an alternative future for it.
Key points
- A dispute about adverse possession of a burial vault below a church brings to mind an old classic, recorded by Peter Sellers
- In Grandpa’s Grave, Sellers complains about plans to dig up the grave to create “some bloke’s residence” and suggests that his grandfather’s ghost will rouse and take possession of the location
- But the human remains at the centre of this dispute cannot be disturbed because the church could not show that it had been in adverse possession of the vault
Allyson Colby is a property law consultant
