Land registration — Possessory title — Appellants applying for first registration of land — Deputy solicitor refusing to cancel respondent’s possessory title — Whether solicitor’s finding of elements for adverse possession correct — Appeal allowed
The appellants and the respondent had purchased adjoining plots of land in 1957. The respondent built a scout hut on its plot. The appellants had intended to build a church on their land but failed to do so and the plot (the disputed land) became overgrown. The respondent pitched tents upon it. In 1959, the appellants discovered that the respondent had pitched tents on the disputed land, to which they held the paper title. Their representative verbally agreed to the respondent’s continued use of the disputed land, on the condition that it cut the grass and kept the plot tidy. The consent was not formalised, but the respondent continued to use the land. Although the disputed land was otherwise fenced in, no fence had ever been constructed between it and the respondent’s land
In 1985, the respondent constructed a rockery garden, erected a picket fence at the north-western end of the disputed land and planted ornamental trees and shrubs on the land. It later installed a commemorative bench the land.
In 1994, the appellants sought the respondent’s permission to use the scout hut and thanked the respondent “for the way you have kept our plot tidy and the grass cut”. The respondent refused the request, stating that it had openly exercised full rights of ownership over the disputed land for more than 30 years without acknowledging to any person that it was using the land by consent. It took legal advice and, in 2000, was registered with a possessory title to the land. That possessory title first came to the appellants’ attention in 2002, when they were preparing to sell the land as a potential building plot.
The appellants applied to the Land Registry for first registration as freehold proprietors with title absolute of the disputed land and for the cancellation of the respondent as proprietor with possessory title. The deputy solicitor cancelled the application, finding that the elements required for adverse possession were present from 1985 onwards, since the respondent’s actions amounted to a repudiation of any existing or future consensual relationship between the parties. The appellants appealed pursuant to r 300 of the Land Registration Rules 1925.
Held: The appeal was allowed.
On the primary facts, the deputy solicitor had not been entitled to conclude that the respondent was in adverse possession of the disputed land so as to bar the appellants’ paper title. It was fundamental to the acquisition of title to land by adverse possession that the possession relied upon was not with the consent of the paper owner. There was nothing to indicate that the appellants’ consent to the respondent’s occupation of the land had not continued.
Difficulties arose because the licence was oral and did not require payment to be made for the right to use the land. It merely required the respondent to keep the land neat and tidy, which it had done. Therefore, the fact that many years had passed without any contact between the appellants and the respondent over the latter’s use of the disputed land, much less any acknowledgment of the continuing existence of the licence, did not mean that the licence ceased to be operative: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 distinguished.
Geraint Martyn Jones (instructed by Henry Thompson & Sons) appeared for the appellants; Bernard James Carey, of the Scout Association Trust Corporation, appeared in person for the respondent.
Eileen O’Grady, barrister