Green belt – Title – Registration – Claimants owning paper title to land – Defendant claiming to have acquired title by adverse possession – Deputy adjudicator at Land Registry allowing application to amend register – Whether deputy adjudicator making findings of fact against weight of evidence – Appeal allowed
In August 1990, a company purchased a manor house that included 27 acres of green-belt land (the disputed land). The defendant claimed that he had moved onto that land prior to October 1991 and had grazed sheep, horses and ponies upon it. He had erected fencing in order to keep his sheep within the fields upon which he wished them to graze, but, in general terms, the boundaries were either fenced or hedged and required only limited fencing.
In 2001, the company charged the land to the first claimant and to another party, which subsequently went into receivership. In 2006, the defendant applied to change the register in respect of the title to the disputed land on the basis of adverse possession.
It was common ground that, in order to establish adverse possession, the defendant had to prove that he had enjoyed an uninterrupted period of 12 years’ possession prior to 13 October 2003, the date upon which the Land Registration Act 2002 came into force. He therefore had to have been in possession of the disputed land by 13 October 1991 and to have remained in undisputed possession throughout that period.
The deputy adjudicator found as facts, inter alia, that the defendant had moved onto the land before the requisite date with the avowed intention of acquiring title by way of adverse possession. Accordingly, the defendant had discharged the burden of proof upon him and was entitled to possession.
The claimants appealed contending, inter alia, that the deputy adjudicator had made findings of fact that went against the weight of evidence and had failed to identify sufficiently his reasons for reaching his decision.
Held: The appeal was allowed.
The deputy adjudicator had erred in a number of important respects. The weight of evidence indicated that the defendant had not been in factual possession of the disputed land on 13 October 1991 and his claim to have acquired title to the disputed land therefore failed.
The paper title owner was presumed to be in possession of the land. Therefore the burden of proof lay on the person claiming adverse possession by going into possession of the land as a trespasser together with the requisite intention to use it as his own, for the requisite period, without the owner’s consent. The intention had to be clear to the world at large. Further, the element of exclusivity distinguished possession by the trespasser from mere occupation: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 applied.
If before the date upon which the defendant took possession “the slightest acts” were carried out by or on behalf of the claimants on or in respect of the disputed land, the abandonment or discontinuance of possession by them would not be presumed: Powell v McFarlane (1979) 38 P&CR 452 considered.
The test for deciding whether a finding of fact went against the evidence was whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence was possible. The difficulty or ease with which that test could be satisfied would depend upon the nature of the disputed finding. If the challenge was to the finding of a primary fact, particularly if founded upon an assessment of the credibility of witnesses, it would be hard to overthrow. Where the primary facts were not being challenged and the judgment had been made from inferences drawn by the judge from the evidence before him, then the Court of Appeal, which had the power to draw any inference of fact it considered to be justified, might more readily interfere with an evaluation of those facts.
In the present case, the findings were not justified by the evidence. Although the defendant had been in occupation of part of the land from some time in 1990 or 1991, it was impossible to reach any firm or precise conclusion as to what he had done or when. There was no evidence to establish that he had been in sole and exclusive possession of the disputed land by the relevant date.
Gary Cowen (instructed by Addleshaw Goddard LLP) appeared for the appellants; Michael Roberts (instructed by Ashton Graham) appeared for the respondent.
Eileen O’Grady, barrister