Land registration – Adverse possession – Highway – Applicants seeking first registration of title to garage – Whether establishing necessary period of adverse possession for purposes of Limitation Act 1980 – Whether possible to acquire title by adverse possession over land forming part of unadopted highway – Application allowed
The applicants and the respondents were the registered proprietors of adjoining semi-detached cottages. The applicants had purchased their property in 2014, when it had been sold to them with the benefit of a garage which was positioned adjacent to their property on the verge next to an unadopted highway.
When contracts were exchanged on the sale, the vendor, whose father had built the garage in about 1960, applied for first registration of title to the garage land. After completion of their purchase, the applicants themselves made a similar application, relying on a continuous period of more than 12 years’ adverse possession barring the paper title for the purposes of the Limitation Act 1980. They claimed that the garage had been used by the vendor’s father, the vendor and finally by themselves ever since it was first erected.
The respondent objected to the application and disputed whether the necessary continuous period of adverse possession had been established. He asserted that the garage land fell within his registered title and that use of the garage had been with the consent of his predecessor in title and then himself. He also argued that the garage land formed part of the highway and so could not be acquired by adverse possession.
Held: The application was allowed.
(1) On the evidence, the garage land was not included in the respondent’s registered title; nor had the garage been occupied with the consent of the respondent and his predecessor in title. There was sufficient evidence of acts of possession in relation to the garage to establish the applicants’ adverse possession claim, including use of the garage by the vendor and his father and the fact that they had kept it locked with a padlock, the key to which was kept in their house. Possession of the garage had passed from the vendor to the applicants when they acquired the house.
(2) That conclusion was not displaced by the fact that the vendor had made an application to be registered with possessory title to the title to the garage land. That application did not mean that, after completion of the sale to the applicants, he was continuing to assert that he was in possession of the garage land, rather than them. The vendor’s application was made at the time of exchange of contracts, at which time he was able properly to make a statement of truth asserting that he was in possession of the garage land. For the purposes of his application, what mattered was whether he was in possession at the application date, that being the date from which his title would have been registered had he pursued his application. There was no evidence that he had claimed still to be in possession after completion of the transfer to the applicants.
(3) It was not fatal to the applicants’ application that there had been no formal conveyance to them of the vendor’s possessory title. Since the vendor allowed the applicants into possession by himself going out of possession and giving the garage key to them, there was a single continuous period of possession: Tower Hamlets London Borough Council v Barrett [2006] 1 P&CR 9 applied.
(4) Where there was a highway running over land bounded on both sides by a hedge, there was a presumption that the highway extended over the whole width of the land between the hedges. There was nothing to rebut that presumption in the instant case and, that being so, the proper finding was that the garage stood on part of the highway. While there was authority that title by adverse possession could not be acquired over a highway maintainable at public expense, which was vested by statute in the highway authority, the position might be different in the case of an unadopted highway since there were indications in the authorities that land which was a highway could be adversely possessed: R (on the application of Smith) v Land Registry [2010] EWCA Civ 200; [2010] 2 EGLR 1 and JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419; [2002] PLSCS 163 considered. In the absence of detailed argument or authority, the tribunal was not prepared to hold that the application failed on the ground that the garage stood on land that was part of a highway not maintainable at public expense.
The applicants appeared in person; Robert Craven (instructed by Peter Lynn & Partners, of Swansea) appeared for the respondents.
Sally Dobson, barrister