Land registration – Adverse possession – Registration of land with possessory title – Respondent acquiring that land – Applicant applying as owner of paper title to remove land from respondent’s registered title – Paragraph 5(c) of Schedule 4 to Land Registration Act 2002 – Whether necessary period of adverse possession established – Whether interrupted by acknowledgment of title – Effect of 2002 Act on relevant period for establishing adverse possession – Application allowed
In 1997, the Land Registry allowed an application by T and his wife for first registration of title to an area of land (the disputed land) with a possessory title acquired by adverse possession. Their claim was based on the use of the land together with an adjoining large house and grounds that had been owned by a company of which T was a director from 1986 and by T and his wife from 1995. The title later became vested in the respondent company, of which T was also a director. In 2008, the applicant secretary of state obtained first registration of title absolute to a parcel of land adjacent to the disputed land. Although the disputed land had been included in the application, as forming part of the land transferred to the Ministry of Transport by a 1947 conveyance, it was excluded from the applicant’s registered title owing to the existence of the respondent’s possessory title.
In May 2009, the applicant applied to remove the disputed land from the respondent’s title and to include it in its own, pursuant to para 5(c) of Schedule 4 to the Land Registration Act 2002. The respondent opposed the application, which was accordingly referred to adjudication. The respondent accepted the applicant’s contention that its adverse possession claim, being against land in the ownership of the Crown, required a period of 30 years’ adverse possession not the usual 12 years. However, it claimed that it could establish such a period running from 1976 based on the actions of the previous owners of the house.
An issue arose as to whether a letter to the district valuer in 1989, from the then owner of the house, was an acknowledgment of the applicant’s title so as to make time run afresh under the Limitation Act 1980; the letter enquired into the ownership of the disputed land and whether it was vested in the Ministry of Transport, with a view to making an offer to purchase it. There was a further issue as to the dates between which the 30-year period had to run, on an application of the 2002 Act and the 1980 Act. The respondent contended that an application to the Land Registry did not qualify as an “action to recover land” stopping time running under the 1980 Act and that, accordingly, the 30-year period continued to run up to the adjudicator’s final order.
Held: The application was allowed.
(1) Adverse possession required some form of exclusive factual possession together with a sufficient intention to possess: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 414 applied. There was no sufficient evidence of either element between 1976 and 1986 and insufficient evidence of factual possession thereafter. On the evidence, neither the respondent nor its predecessors in title had been in adverse possession of the disputed land. That was sufficient to dispose of the case; the applicant was entitled to the order it sought. The court none the less went on to consider the issues of acknowledgment of title and the 30-year period.
(2) Whether a particular document amounted to an acknowledgment of title depended on the true construction of the document against all the surrounding circumstances. In general terms, an offer to purchase land from the paper title owner, even one made subject to contract, was a sufficient recognition that that owner had a superior title: Edgington v Clark [1964] 1 QB 367 applied. Although the 1989 letter did not in terms acknowledge the applicant’s title, it necessarily suggested that the respondent’s predecessor did not have title to the disputed land and would be prepared to purchase it from the Ministry of Transport on the assumption, which was correct, that it was the legal estate owner. That was sufficient to amount to an acknowledgment that the minister had a better title.
By virtue of section 29 of the 1980 Act, any acknowledgment of title had to be made in writing to the party, or its agent, whose title or claim was being acknowledged. In the instant case, the acknowledgment had been made to the applicant for the purposes of section 29 notwithstanding that it had not been directly so made. In that regard, the district valuer could not be considered as the agent of the secretary of state for transport (the successor of the minister of transport) solely because both were officers of the Crown: Town Investments v Department of the Environment [1978] AC 359 and Attorney-General of Ceylon v Silva [1953] AC 461 considered. Although both the secretary of state and the district valuer might ultimately owe a duty to, and be representatives of the Crown, there was no evidence of any form of agency as between the two. However, there was evidence that the letter had been forwarded to and seen by an officer of the Ministry of Transport and, given the terms of the letter, the respondent’s predecessor had expressly or impliedly authorised the district valuer to pass on that letter: Rehman v Benfield [2006] EWCA Civ 1392; [2007] 2 P&CR 16 applied. That was sufficient for the purposes of section 29.
(3) Under the 2002 Act, there could be no more than one freehold estate at the same time of the same land. The respondent’s possessory title was the sole freehold estate, notwithstanding that it might be defeasible. Therefore, once the disputed land was registered in T’s name with possessory title, the applicant’s immediately pre-existing legal title was extinguished, although the applicant retained a right to apply to close the possessory title. Therefore, time had ceased to run against the applicant under the 1980 Act once the 2002 Act came into force in October 2003. That meant that the respondent, in order to defeat the applicant’s application for title, would have had to show 30 years’ adverse possession prior to that date.
Thomas Jefferies (instructed by Pannone LLP, of Manchester) appeared for the applicant; Timothy Morshead QC (instructed by Svedberg Law) appeared for the respondent.
Sally Dobson, barrister