Land registration – Practice and procedure – Adverse possession claim – Schedule 6 to Land Registration Act 2002 – Applicant seeking registration as proprietor of woodland on grounds of adverse possession under para 1 of Schedule 6 – Respondents notified of application as current registered owners – Respondents failing to give counternotice on form NAP invoking addition requirements of para 5 – Whether adverse possession claim made out – Whether respondents barred from invoking para 5 where that matter raised for first time in statement of case in tribunal proceedings – Application allowed
In late 2014, the applicant applied to be registered as the owner of an area of woodland adjoining her house on the ground that she had obtained title by adverse possession over a period of more than 10 years. The application was made under section 97 of, and para 1 of Schedule 6 to, the Land Registration Act 2002. The applicant claimed that the woodland had been fenced in 2000, since which time it had been used exclusively by herself and her family.
The registrar gave notice of the application to the respondent local authority, as the current registered owner of the land. The notice explained that the respondents could give a counternotice under para 3 of Schedule 6 requiring the application to be dealt with under para 5. Such a counternotice would have the effect of requiring the applicant to establish further matters under para 5, in addition to the necessary 10 years’ adverse possession under para 1. The applicant had indicated that she would rely on para 5(4), which applied to land that adjoined other land belonging to the applicant, and which imposed a requirement that the applicant, or any predecessor in title, should have reasonably believed, for a period of 10 years ending on the application date, that the application land belonged to them.
A blank counternotice on form NAP (the form specified by r 190 of the Land Registration Rules 2003) was enclosed with the notice given to the respondents; that form contained various boxes which the respondents could mark to indicate whether they consented to the application, required it to be dealt with under para 5, or objected to the application on grounds stated.
The respondents did not complete the form NAP. They raised various grounds of objection with the registrar, disputing adverse possession, but did not mention para 5 until the matter had been referred to the tribunal and the respondents issued their statement of case in the tribunal proceedings. In that statement, they asked to be permitted to rely on para 5 notwithstanding their failure to complete form NAP. The tribunal proceeded to determine that issue as well as considering whether the application was made out on the facts.
Held: The application was allowed.
(1) Although trivial acts of possession were not usually sufficient to support adverse possession, a key factor was the nature of the land. In the case of woodland, used and preserved as such, acts of possession would by their nature be relatively minor. In the instant case, adverse possession for the purposes of para 1 of Schedule 6 was made out. The fencing of the woodland, so that it was accessible only through a gate from the applicant’s garden, ensured that it was used exclusively by the applicant and her family, who effectively made it part of their garden. The applicant had used and dealt with the woodland as an occupying owner might be expected to use and deal with it, including by looking after and tending it on a regular basis and keeping the undergrowth at bay; planting flowers and plants along marked paths; and installing various items, such as seating and a swing, which suggested use and occupation.
(2) Failure to tick the para 5 box on form NAP would not necessarily deprive an objector of the right to rely on the para 5 conditions. The substantive requirement was that the registrar be informed that the person notified of an application wished the application to be dealt with under para 5. However, the registrar, looking objectively at the form and accompanying material, had to be left in no doubt that para 5 was being invoked: Hopkins v Beacon [2011] EWHC 2899 (Ch) applied.
The respondents were not entitled to rely on para 5. While registered proprietors might reasonably be expected to invoke para 5, the NAP form only gave them the option of doing so. It was their choice whether to tick the relevant box and they might have good reasons for not doing so. Even leaving aside the respondents’ failure to comply with r 190 of the 2003 Rules, which required any counternotice to be in form NAP, there was nothing in the respondents’ communications with the registrar that would lead the registrar to conclude that the conditions in para 5 were being invoked. The reasonable land registrar would reasonably have concluded that the respondents’ objection consisted only of a challenge to the allegations of exclusive possession.
The applicant had complied with the requirements of the 2003 Act. The respondents had not and, more importantly, had given no indication to the registrar, before the matter was referred to the tribunal, that they wished the application to be dealt with under para 5, even though it had been made clear to them that they had that option. The person to whom the form NAP, and any other material, was to be addressed was the registrar, not the applicant. It was too late to raise the point once the matter had been referred to the tribunal: Griffin v Crown Mill (1993) Management Ltd [2016] UKFTT 71 (PC) and Baxter v Mannion [2011] EWCA Civ 120; [2011] 2 ELGR 29; [2011] 20 EG 114 distinguished.
It followed that the applicant was entitled to be registered as proprietor of the land, having made out the requirements of para 1 of Schedule 6.
(3) Had para 5 been validly invoked, the applicant would not have been able to fulfil its requirements and her application would have failed. The application could not show that she had reasonably believed that the woodland belonged to her. She was well aware that the respondents had the paper title to the land. It was not enough to contend that she believed that the woodland had become hers by adverse possession; otherwise, that requirement for reasonably belief of ownership would be otiose. The applicant knew at all times that the woodland belonged to the respondents.
The applicant appeared in person; Mark Loveday (instructed by Suffolk Legal) appeared for the respondents.
Sally Dobson, barrister
Click here to read the transcript of King v Suffolk County Council.
