The Upper Tribunal (Lands Chamber) has considered the rationality of the First-tier Tribunal’s decision on the credibility of evidence in Rowlands and another v Bishop and another [2023] UKUT 102 (LC) and allowed an appeal against dismissal of a claim to title to land by adverse possession.
The case concerned parts of the garden of Woodlands, Haverfordwest, owned by the appellants, which they treated as their own following their purchase of the property in 1996. The land formed part of the registered title of the neighbouring property, Johnston Hall, owned by the respondents.
The first appellant’s evidence before the FTT was that he was told by the vendor prior to the purchase of Woodlands that there had been a boundary agreement between his predecessors in title and those of the respondent to the effect that the northern boundary of Woodlands should be moved to accommodate a pond which his predecessors wished to construct in the garden. The boundary fence which separated Woodlands from Johnston Hall had been in place ever since that arrangement.
In 2019, following challenge by the respondents, the appellants applied to be registered as proprietors of the land by adverse possession. The respondents objected. The FTT found the appellants had established the period of requisite adverse possession but not a reasonable belief that the land was theirs, so the application failed.
The law
Under Schedule 6 of the Land Registration Act 2002, an application for registration may be made by a person who has been in adverse possession of registered land for 10 years or more, but, if the registered proprietor serves a counter-notice, the adverse possessor can only be registered as proprietor if one of three conditions is satisfied. The relevant condition in this case was paragraph 5(4) which requires that:
(a) the application land is adjacent to land belonging to the applicant;
(b) the exact line of the boundary has not been determined under section 60;
(c) for at least 10 years ending with the date of the application, the applicant reasonably believed that the land belonged to him; and
(d) the estate to which the application relates was registered more than a year prior to the application.
The FTT decision
It was agreed that all elements of paragraph 5(4) were satisfied, save (c).
The FTT found as a matter of fact that:
i) the appellants acquired Woodlands in 1996;
ii) at that time there was a well-established post and rail fence along the eastern and southern boundaries;
iii) there was a conversation between the first appellant and the vendor about an agreement the vendor had with the owner of Johnston Hall in relation to the position of the boundaries, but it was nothing more than an informal conversation between neighbours;
iv) the appellants had used the disputed area as part of their garden as owners would, intending to take it for themselves and to exclude the world at large. They had been in adverse possession for at least 10 years prior to the application in June 2019.
However, the FTT did not believe the first appellant’s evidence that, when he bought Woodlands, he could see the post and rail fence and thought everything within it was his. It also took the view that the agreement between the parties’ predecessors in title was of no legal effect and therefore could not found a reasonable belief.
The appeal
A judge, having heard the evidence, is best placed to assess who is telling the truth and the tribunal will only interfere if there is some irrationality or error of law.
The judge did not consider the first appellant to be wholly reliable, despite finding in his favour on the facts constituting adverse possession and his hearsay evidence on the agreement between the parties’ predecessors in title.
The reasons for doubting the first appellant’s credibility were his vagueness in recollecting the legal information he received at the time of purchase and failure to disclose conveyancing documentation from 1996, which, in the judge’s view, would have revealed the agreement over the boundaries if it was intended to have a lasting effect. He was also unsure of the date when he allowed bamboo in the respondent’s garden to encroach on Woodlands.
The tribunal decided the first appellant’s vagueness was consistent with his evidence that he was unaware that the land within the fences was not what he had bought and that he did not know that the registered title boundaries did not reflect that agreement and correspond with the fencing on the ground. He was not asked why he had failed to disclose the conveyancing documentation and it was difficult to see how being unsure about a date of an activity such as not preventing the spread of bamboo could cast doubt on his credibility. The FTT’s reasons for doubting the first appellant’s credibility were flimsy and insufficient to justify a finding that he was lying.
The FTT had no direct evidence of the boundary agreement or conversation between the predecessors in title on which to make a finding as to its legal effect. Whether it was legally effective or not, it could still support a reasonable belief (Dowse v Bradford [2020] UKUT 202 (LC)). The first respondent was told of an agreement and could see that the land was fenced, occupied and cultivated in line with it.
Allowing the appeal, the tribunal substituted its own decision that the condition was satisfied.
Key points
- While appeals on findings of credibility are unusual, they are justified where there is irrationality or an error of law
- An agreement does not need to be legally effective to found a reasonable belief
Louise Clark is a property law consultant and mediator
