Zarb & Anor v Parry & Anor [2011] EWCA Civ 1306

[2011] EWCA Civ 1306Case No B2/2010/2578
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
HHJ PEARCE-HIGGINS QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/11/2011
Before
THE MASTER OF THE ROLLSLADY JUSTICE ARDENLORD JUSTICE JACKSON
Between
ZARB & ANRAppellantsPARRY & ANRRespondents
Ms Laura Collignon (instructed by Child & Child) for AppellantsMr Christian Sweeney (instructed by Lyons Davidson) for RespondentsHearing Hearing date : 18 October 2011
Judgment
[1]This appeal concerns a situation which too often arises. It is a dispute between neighbouring residential properties about the correct location of a boundary marked out when their predecessors in title were in possession of their respective properties. One of the neighbours will inevitably be wrong as to the paper title in the area in issue but that may not be the end of the matter because there may have been adverse possession entitling the other neighbour to registration as proprietor of that area. Parliament has provided a new streamlined procedure for boundary disputes in the comparatively recent Land Registration Act 2002 (“the 2002”). My concern is that this process can still be costly and time-consuming to all concerned. In the postscript at the end of this judgment I will suggest that those advising on conveyancing transactions should think carefully about their strategy in the situation where a purchaser of land becomes aware that there has been an unresolved dispute about a boundary in the past and take steps to deal with it in a way that may avoid the costs, delay and no doubt heartbreak that has occurred in this case. The purchaser can then decide whether he wishes to take the extra steps that might be appropriate before he buys the property.[2]This appeal then concerns a dispute over a strip of land measuring 890 sq. feet, and forming, physically at least, part of the garden of the respondents, the Parrys. I will call this “the Strip”. The appellants, the Zarbs, are their neighbours. HHJ Pearce-Higgins, in his judgment dated 13 October 2010, delivered following the trial, held that the Zarbs were the paper title owners of the Strip but that the Parrys succeeded in their claim to adverse possession. We are concerned with three issues of law and fact, which I set out in paragraph 20 below. To be successful on this appeal, it is sufficient for the Zarbs to succeed on any one of those issues.

Background

[3]Since July 2005, the Zarbs have lived at Daisymore, a house with a substantial garden in Welland, Worcestershire, which they acquired in September 2000 following the death of the previous owner, Mr Desmond Little. In 1992 Mr Little had sold a portion of its garden, which I shall call “the Plot”, to Mr and Mrs Ceen who lived at, and owned, the adjoining smaller property, Fleet House, now owned by the Parrys. The transaction was recorded in a transfer dated 14 December 1992. That document recorded that the extent of the land transferred by Mr Little to Mr and Mrs Ceen was “shown edged red on the plans annexed hereto”. A plan, known as Plan B, was duly attached to the transfer. The plan bore Mr Little’s signature, and contained the endorsement “land involved in the sale” as well as containing a drawing of the piece of land and a number of dimensions. (A second plan, known as plan A, was attached to the transfer. This plan is on a very much smaller scale and plays no role in the determination of this appeal.)[4]The transfer of the Plot from Mr Little to Mr and Mrs Ceen was also recorded by means of a memorandum endorsed on the deed of gift by which Mr Little acquired Daisymore and the adjoining lands on 14 June 1985 from Amy Little. The memorandum recorded that the land transferred from Mr Little to Mr and Mrs Ceen comprised:
“…all that piece or parcel of land at the rear of Fleet House … which for the purpose of identification only is edged in red on plan “A” and dimensioned and delineated in plan “B” both annexed hereto was transferred by the said Desmond Little to the said Robert Ceen and Julia Melanie Ceen in fee simple.”
Plans A and B were annexed to the deed of gift, Plan B having been drawn up by Mr Ceen.[5]When the Plot was transferred, the eastern and northern boundaries adjoining Daisymore were marked out on the ground by Mr Little. He did not erect a fence on the southern boundary. According to the paper title, this runs some 12 feet north of a hedge which the Ceens took to be the boundary. The present dispute relates to that southern boundary and so I will omit reference to the other boundaries unless required for understanding the present dispute. Mr Little also put a post and wire fence about 5 feet south of the hedge and, therefore, on his own land.[6]On or about 15 November 2002, Mr and Mrs Parry purchased Fleet House from the Ceens, together with the Plot. Before that purchase took place, the Zarbs (who had purchased Daisymore in 2000) had raised arguments about the southern boundary with the Ceens. Mrs Ceen had tried to resolve the position but the Zarbs did not respond to her attempts to achieve this through correspondence and telephone calls. Mr and Mrs Parry understood that there had been a boundary dispute with the Zarbs but that the dispute had been resolved prior to the completion of their purchase of Fleet House. However, in July 2007, the dispute as to the boundaries between the Plot and Daisymore erupted again.[7]Mrs Parry gave evidence that there was an incident between the Zarbs and the Parrys over the northern boundary on 18 July 2007. The detail of that incident is not material. Later in July 2007, the Zarbs sought to take the Strip by force, an event which Mrs Parry described in her witness statement in these terms (footnotes omitted):
“19. On Sunday 29 July 2007, it was a lovely morning and we were taking photographs around the house and garden, we had heard the Zarbs making a noise but that was not unusual as at weekends they frequently used a chain saw, tractor and post rammer around their property. On going behind the Coach House we were absolutely amazed to find Mr and Mrs Zarb on [the Plot] banging fence posts into our lawn. They had removed some of Mr Little's original post and wire fence from the eastern boundary of [the Plot], cut down an elderflower tree on our property that I used for making elderflower champagne and cordial and had uprooted our 12 foot post rail fence on the southern boundary of [the Plot] and had thrown it onto the lawn. I instantly took photographs, I think they thought we were away (we have a camper van) and were very surprised at being caught, my husband asked them to remove themselves from our garden immediately and I fetched a little dictating machine to record any conversations. Both of them refused to leave. Mr Zarb actually unwound a long surveyor’s tape from the bottom of our garden (east) in a westerly direction towards the walnut tree that was roughly on the boundary between [the Plot] and [the Zarbs’ property] and approximately 5 feet inside the boundary hedge to the south of [the Zarbs’ property] enclosing not only the entire hedge but also our Victoria and Mirabelle plum trees in the garden and saying that he was taking it by force as it belonged to him. We asked him to explain and he said that he had a map (plan B) that showed that the eastern boundary of [the Plot] (that he later referred to as C-B2) should be 40 feet longand because on the ground that distance from post B2 to the hedge measured 42.5 feet, the southern hedge and nearby trees belonged to him and he was taking them. … 21. Mr Zarb refused to listen to any more discussion and came at me aggressively, I stood my ground and he came right into my space glaring down at me nose to nose trying to intimidate me. This was on our own lawn with my husband and Mrs Zarb watching. I looked up at him and said “Mr Zarb do not try your bully boy tactics with me”
. He looked incandescent with fury and both my husband and I asked both of them again to remove themselves from our property, both refused so I asked my husband to go and phone the police. It was then that Mrs Zarb asked her husband to back off and leave the property. It was at least 20 minutes from discovering them to their leaving our property. We were badly shaken as we could not have imagined anyone having the 'hard face' to come onto a neighbour's property to bang fences into their lawn and then have the temerity to refuse to leave.”[8]In August 2008, the parties agreed to give joint instructions to Mr David Powell, a surveyor, to establish the boundaries between the properties under the RICS Neighbour Dispute Service. Mr Powell attended the properties and drew up a plan recording as best he could the boundaries of the Plot. This plan essentially determined the southern boundary of the Plot to be in accordance with the physical features, that is, running through the centre of the hedge.[9]The report of Mr Powell did not resolve the matter. On 23 January 2009 the Zarbs’ solicitors wrote to the Parrys pointing out what they alleged to be errors in Mr Powell’s report. On 22 June 2009, the Zarbs issued proceedings in which they sought a declaration that the boundaries between the two properties were in accordance with Plan B and consequential relief. In their defence the Parrys relied on the boundaries as shown by the report of Mr Powell, and also that, if they were wrong on this, they had acquired title to the land on the southern boundary not within their paper title by adverse possession. In April 2010, pursuant to directions of the court, another surveyor, Mr Atkinson produced a report with a plan of the boundary according to the measurements given on Plan B. This showed that the boundary ran north of the hedge. The area between that boundary and the centre of the hedge is the area which I have called the Strip.[10]The trial of this matter took place before HHJ Pearce-Higgins QC. The judge heard the evidence of the parties, and held that that of the Parrys and the Ceens was to be preferred to that of the Zarbs. The judge rejected the argument that Plan B was ambiguous and that, therefore, extrinsic evidence should be admitted on the question of the interpretation of that plan. He concluded that the southern boundary was as recorded on Plan B annexed to the transfer of the land in 1992, as contended for by the Zarbs, and thus in accordance with the plan drawn up by Mr Atkinson. The effect of this conclusion was that the hedge did not correctly record the established boundary by the paper title. The boundary in fact lay several feet further north and the hedge was on the Zarbs’ land.[11]However, the judge went on to find that Mr and Mrs Parry were in adverse possession of, and thus had acquired right to, the Strip. Thus, in his judgment, the centre of the hedge now constituted the southern boundary between the properties of the Zarbs and the Parrys respectively.

The 2002 Act

[12]The 2002 Act introduced a new legal scheme for acquiring title to registered land by adverse possession. I will confine myself to its essential features for present purposes. For the first time the adverse possessor was to be able to obtain registration by an application to the Land Registry, which is then notified to the paper title owner. The new scheme seeks to establish a fair balance between the interests of the paper title owner and those of the adverse possessor. To protect the paper title owner, the adverse possessor must satisfy certain conditions and on this appeal I have to consider one of those conditions, the first time that it has been considered in this court.[13]Where a person is sued for possession of land, section 98(1) of the 2002 Act provides for the circumstances in which a person may have a defence. So far as material, section 98 provides:
“98 Defences (1) A person has a defence to an action for possession of land if— (a) on the day immediately preceding that on which the action was brought he was entitled to make an application under paragraph 1 of Schedule 6 to be registered as the proprietor of an estate in the land, and (b) had he made such an application on that day, the condition in paragraph 5(4) of that Schedule would have been satisfied.” (a) on the day immediately preceding that on which the action was brought he was entitled to make an application under paragraph 1 of Schedule 6 to be registered as the proprietor of an estate in the land, and (b) had he made such an application on that day, the condition in paragraph 5(4) of that Schedule would have been satisfied.”
[14]Paragraph (a) of section 98(1) refers to schedule 6. This schedule deals with the various cases in which an adverse possessor can be registered as the proprietor of an estate in registered land if he has been in adverse possession of the estate for more than ten years, as well as what he must do to be registered.[15]Paragraph (b) of section 98(1) refers to paragraph 5(4) of schedule 6. Sub-paragraphs (2) to (4) of paragraph 5 set out three conditions one of which must be satisfied by the adverse possessor when he seeks to be registered as the proprietor of land. The relevant condition on this appeal is the third condition in paragraph 5(4) of schedule 1. Paragraph 5 (1) and (4) provides:
“5 (1) If an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the following conditions is met… (4) The third condition is that— (a) the land to which the application relates is adjacent to land belonging to the applicant, (b) the exact line of the boundary between the two has not been determined under rules under section 60, (c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and (d) the estate to which the application relates was registered more than one year prior to the date of the application.” (a) the land to which the application relates is adjacent to land belonging to the applicant, (b) the exact line of the boundary between the two has not been determined under rules under section 60, (c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and (d) the estate to which the application relates was registered more than one year prior to the date of the application.”
[16]Paragraph 5(4) thus deals with a situation mentioned in paragraph 1 of this judgment, which is very commonly met, namely the situation where the physical boundary between two properties does not accord with the paper title. People often make mistakes when laying out a physical boundary to a new plot.[17]Paragraph 5(4) sets out three sub-conditions. The relevant sub-condition on this appeal is paragraph (c). This sub-condition is new. The adverse possessor has to show that he made a reasonable mistake in believing that he was the owner of the land of which possession is claimed. This seems to be a fair requirement for the law to impose before the paper title owner is deprived of his land, which may be very substantial in area and value, unlike the comparatively small area in this case. It reflects the fact that, by virtue of article 1 of the First Protocol to the European Convention on Human Rights, a fair balance must be shown to justify an interference by the state with a person’s possessions. The 2002 Act was no doubt intended to be Convention-compliant in this respect. But the necessary effect of the way that paragraph 5(4) is expressed is to make the unreasonable belief of the adverse possessor in the last ten years of his possession prior to the application for registration a potentially disqualifying factor even though his belief started out as reasonable but became unreasonable as a result of circumstances after the completion by him and/or his predecessor in title of a ten year period of possession. The consequence of that is that the paper title owner will have a last chance to recover the land if the adverse possessor did not have a reasonable belief during the last ten years. The moral is that, as soon as the adverse possessor learns facts which might make his belief in his own ownership unreasonable, he should take steps to secure registration as proprietor.[18]The 2002 Act makes provision for an adverse possessor whose possession has been displaced by the registered proprietor. He can apply for registration of the estate in land in question in his own name provided that he makes his application within six months of the eviction: paragraph 1(2) of schedule 6:
“Subject to paragraph 16, a person may also apply to the registrar to be registered as the proprietor of a registered estate in land if— (a) he has in the period of six months ending on the date of the application ceased to be in adverse possession of the estate because of eviction by the registered proprietor, or a person claiming under the registered proprietor, (b) on the day before his eviction he was entitled to make an application under sub-paragraph (1), and (c) the eviction was not pursuant to a judgment for possession.” (a) he has in the period of six months ending on the date of the application ceased to be in adverse possession of the estate because of eviction by the registered proprietor, or a person claiming under the registered proprietor, (b) on the day before his eviction he was entitled to make an application under sub-paragraph (1), and (c) the eviction was not pursuant to a judgment for possession.”
[19]It may have been open to the Parrys to make a precautionary application under paragraph 1(2) of schedule 6 in case it turned out that the Zarbs were right in saying that they owned the Strip. However, no such application was made. Once the Zarbs started proceedings for possession, the Parrys could not make an application to the Land Registry to be registered as proprietors of the Strip notwithstanding that their period of possession, taken with that of the Ceens, exceeded ten years: schedule 1, paragraph 1(3).

The three issues

[20]I now set out the three discrete issues referred to above in the order in which the facts on which they are based occurred: i) Was the judge in error in rejecting the argument that the Ceens’ possession of the Strip was with Mr Little’s consent so that the possession could not be adverse? ii) Was the judge correct to hold that the adverse possession of the Strip by the Parrys had not been interrupted by the Zarbs’ attempt to fence off the Strip in July 2007 so as to start time running again? iii) Did the Parrys satisfy the requirement in paragraph 5(4)(c) of schedule 6 to the 2002 Act that, throughout the previous period of ten years, they should reasonably have believed that they owned the Strip?[21]Miss Laura Collignon has presented the case for the Zarbs on this appeal with skill and admirable economy. We called on Mr Christian Sweeney, for the Parrys, to address us on the second issue only.[22]Mr Little assumed responsibility for marking out the physical boundaries of the Plot when it was conveyed to the Ceens. As to the southern boundary,

the judge found as follows:

“15. It is quite clear that in fact the plan was intended to be used as no more than a rough indication and not a precise plan. It was always the intention I am satisfied that Mr Little and Mr and Mrs [Ceen] intended that the southern boundary of the land to be conveyed was a continuation of the existing hedge, the boundary through the centre of the hedge, and a continuation of that…. It is unfortunate that those sorts of matters were not made plain on the plan and that has led to the current problem but as a matter of reality I have absolutely no doubt that that was what was intended. 17. Mr Little, at about the same time, erected a stock proof fence at his side of the hedge on his own land, not in my judgment to mark a boundary but merely to be a stock proof fence to keep his stock in and out of Mr and Mrs [Ceen]'s garden. It appears they got on well and were not too fussed about boundary demarcations…”
[23]The judge rejected the notion that Mr Little consented to the hedge being the boundary in these terms: “In my judgment, there is absolutely no doubt that during the time they were there Mr and Mrs [Ceen] had both factual possession and intention to possess. The fact that Mr Little did not object is irrelevant. He did not object because he thought he was not the owner. It was not with his consent. In my judgment this is a false point to take. ” (judgment paragraph 23)[24]Miss Collignon submits the judge erred in his conclusion on this point and that Mr Little gave his implied consent to the occupation of the Strip by the Ceens so they could not acquire title by adverse possession. She bases this submission on the erection of the stock-proof fence by Mr Little and on Mrs Ceen’s evidence. Mrs Ceen made a statutory declaration on 25 August 2007 which included the following passage: "Measurements for the sale of the plot were taken from the centre of the existing, natural hedge... south boundary, the iron posts being designated as centre, there was never any kind of fence on our side of this boundary; the line and remains of fence posts are inside the hedge. There were no boundaries on the east and north sides, so these were the ones to be marked out and agreed for the transaction. Where existing old trees interfered with the exact siting of posts, Mr Ceen and Mr Little agreed between them where the post should be sited. That original post and wire fence is the same as is still standing today 15 years later…. It was agreed.. that [Mr] Little would erect the fence (he did this himself) as he saw fit and we were responsible for maintaining it. Mr Little actually chose to give us the extra tree and a few feet. He also erected a post and wire fence a boundary to the south of the old hedge... approximately 3 feet from the south edge of the hedge and 5 feet from its centre. The hedge to the south had been there a very long time.”[25]Miss Collignon further submits that the erection of the stock-proof fence to the south of the hedge was an overt act from which it could be inferred that Mr Little gave his permission for the use of the Strip. As Mr Little had died on 26 June 2000 and there was no witness statement from him, there was no evidence of his state of mind, which could support the judge's finding of fact that Mr Little did not object to the Ceens’ use of the additional strip of land because he did not think that he was the owner of it. Therefore she submits that that finding cannot stand. There was, therefore, no basis on which the judge could have found that the possession of the Ceens was adverse as against Mr Little.[26]We were referred to a number of authorities on this point. However, it is in my judgment sufficient to take a summary of the law as set out in Megarry and Wade, The Law of Real Property (seventh edition) (ed. Harpum, Bridge and Dixon): “If a person is in possession of land with the permission of the true owner, his possession cannot be adverse. That permission may be expressly given or it may be implied. It will be implied where there has been some overt act by the landowner or some demonstrable circumstances from which it can be inferred that permission was given. It is immaterial whether the squatter was aware of these matters but they must be probative of and not merely consistent with the giving of permission. They must be such that a reasonable person would have appreciated that the user was with the permission of the landowner. Possession with permission, which can never be adverse is quite different from the possession in which the landowner acquiesces, which may be adverse.” (page 1417)[27]The crucial question is whether the acts and words of Mr Little were “probative of and not merely consistent with the giving of permission”. The judge made no finding about the evidence of Mrs Zarb regarding the alleged statement by Mrs Ceen and, in any event, permission to play on the Strip is hardly probative of an intention to give the right to possession of it.[28]As to Mrs Ceen’s statement that “Mr Little actually chose to give us the extra tree and a few feet”, this was wholly unparticularised and is inconsistent with the judge’s clear finding of fact that there was no consent. The judge heard the witnesses and he must be taken to have rejected the sentence which I have quoted. That leaves the stock-proof fence. The erection of that fence is wholly equivocal: it did not mean that Mr Little consented to the Parrys having possession of the Strip. Mr Little might well just have erected that fence for some other purpose, for example to stop his stock from damaging the hedge or going through it and thence into (any part of) the garden of the Ceens. As HHJ Marshall QC made clear in J Alston & Sons Ltd v BOCM [2009] 1 EGLR 93, mere acquiescence in another’s use of one land is not the same as the grant of permission for that user for the purposes of the stopping time running in favour of an adverse possessor.[29]Accordingly I would dismiss the appeal on this issue.[30]The judge considered that the Zarbs had tried to interrupt the adverse possession by the Parrys but that they had not been successful in this: “...There certainly was some discussion in 2001 and 2002 about the precise line of the boundary…. The matter remained quiet really until 2007 because for a substantial part of that, Mr and Mrs Zarb were not in residence. There came a time when Mr and Mrs Zarb sought to assert rights of ownership over the disputed area and, indeed, committed certain acts to support that but the reality was in my judgment that effectively Mr and Mrs Parry remained in occupation of the land, partly waiting for the matter to be resolved either by consent, by agreement, or in the absence of that by these court proceedings, and their occupation was not disturbed in any significant way by what Mr and Mrs Zarb did. ” (Judgment, paragraph 24)[31]The judge does not make detailed findings as to the incident on 29 July 2007, and Miss Collignon took us to Mrs Parry’s evidence, which I have set out in paragraph 7 above.[32]Miss Collignon submits that the evidence does not support the judge’s short conclusion. The Parrys’ possession of the Strip, she argues, was interrupted in the course of the incident on 29 July 2007 when the Zarbs had banged fence posts into the Strip. They had also removed some of the original fence and cut down an elderflower tree on the Strip. Mr Zarb had in addition wound a surveyor’s tape from the eastern boundary to a walnut tree on the western boundary temporarily enclosing the Strip. He declared to the Parrys that "he was taking it by force as it belonged to him". He explained this by reference to Plan B. The Zarbs initially refused to leave when asked to do so by the Parrys. They only left the Strip when Mr Parry went to call the police.[33]In response Mr Sweeney submits that what the Zarbs did was not enough to cause the Parrys’ adverse possession to cease in respect of the Strip. He submits that the Zarbs had to obtain exclusive possession of the Strip. It was not possible in law for both the Zarbs and the Parrys to have exclusive possession of the Strip at the same time. What is required to terminate adverse possession necessarily depends on the nature of the land in question. More is required where the property is, say, a person's home than where the property is an open field. In this case, the Strip was part of a cultivated garden. If the Zarbs had erected a fence to prevent entry on to the Strip from the Parrys’ garden, that would have been sufficient to bring the Parrys’ possession to an end. However, that is not what happened and so the judge had to consider whether, on the facts as he found them to be, the Parrys had in fact been dispossessed. On Mr Sweeney’s submission, the judge gave himself the correct direction and his finding that possession was not significantly interrupted was a finding, which, on the facts, he was entitled to make. It would have to be shown that he was plainly wrong in his finding of fact for an appellate court to interfere, and that had not been suggested.[34]What was suggested by Miss Collignon was not that the judge was incorrect in his finding of the facts but that he should have held that what was done was sufficient in law to bring the adverse possession to an end.[35]So the question on this issue is whether the acts of the Zarbs were sufficient to bring the Parrys’ possession of the Strip to an end. The primary evidence on this point is important. The Zarbs did not retake exclusive possession of the Strip as they intended to do by banging in posts and starting to erect a wire fence. They decided to withdraw part way through that exercise, because of the protests from the Parrys. The mere erection of a surveyor’s tape is not sufficient to enclose the land where it is laid out merely for the temporary purpose of measuring the line at which a fence is to go. However, it was clear that the Zarbs intended that they should recover possession. That intention was made clear through words and deed. They were the paper title owners. Assuming for this purpose that they can meet the defence raised against them based on paragraph 5(4), they had a better right to possession of the land than the Parrys. The Strip was not a home or building. It can, therefore, forcefully be said that the law ought to look favourably on a paper title owner who intends to make a peaceable re-entry of land of this nature and makes manifest that intention by incontrovertible words. It can also be said that it should not matter that the paper title owner’s statement of intention was accompanied by only preliminary acts.[36]On the other hand, in this case, the Strip was indubitably in the physical possession of adverse possessors and, since the Zarbs had acquired their property only in September 2000, they were not in a position to know whether the Parrys were entitled to be registered as proprietors by virtue of their adverse possession. The Zarbs were taking the risk that they might be trespassing on land which actually belonged to the Parrys as a result.[37]In order to be in adverse possession, the adverse possessor has to have factual possession and an intention to possess (J A Pye ( Oxford) Ltd v Graham [2003] 1 AC 419). The meaning of intention to possess is not relevant to this appeal. As to factual possession, the House of Lords in Pye approved a passage from the judgment of Slade J in Powell v McFarlane (1977) 38 PC & R 452 at 470-1, which was as follows: “(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so."[38]Thus an adverse possessor has to show he has exclusive possession in the sense of exclusive physical control. If he loses exclusive physical control, his adverse possession is interrupted and comes to an end. Time begins to run again. In this case, the Zarbs had banged fence posts into the ground so that it might be said that the Parrys lost exclusive control of the limited area affected by those posts. However, the area occupied by each post would have been small and could not justify a conclusion that adverse possession of the whole of the Strip had been interrupted.[39]The paper title owner has the advantage in law that, to effect repossession of property, it is sufficient to show that possession has been resumed for short period of time. This was established in Randall v Stevens (1853) 2 E & B 641, 118 ER 907 where a landlord evicted a tenant who had failed to pay any rent for twenty years. Statute provided that a house could not be repossessed simply by exercising a right of entry. Lord Campbell LC, giving the judgment of the Court of Queen’s Bench on appeal from a judgment given at assizes, held that entry could be made “by stepping on any corner of the land in the night time and pronouncing a few words, without any intention or wish to take possession.” However, where possession was taken with an intention to possess, then “whether possession was retained by the landlord an hour or a week must for this purpose [i.e. taking possession other than by mere entry] be immaterial.”[40]The adverse possessor is, therefore, at risk of losing possession for a brief period of time, perhaps while he is out taking a walk or doing some shopping. The fact that the paper title owner can interrupt his possession in this way lends support to the view that the act of interruption should be effective to bring the adverse possessor’s exclusive possession to an end. It would potentially be unfair if a paper title owner could interrupt adverse possession by the simple act of erecting a notice on the property saying, for example, “Private Property - Keep Out”, so that the period of adverse possession will start all over again.[41]This conclusion receives some support from paragraph 1(2) of schedule 6 which makes provision for an application by an adverse possessor who is not at the date of the application in possession of the land in respect of which he seeks to be registered as proprietor and that is where the adverse possessor has been “evicted”. That word is not defined in the 2002 Act. It does, however, as a matter of ordinary use of language denote the loss of exclusive possession in some way, as opposed to his right to be in possession merely having been brought into question or challenged in some way. One would have thought that, if it was to be possible for adverse possession to be terminated without the loss of possession, the 2002 Act would have made provision for that.[42]We have not been referred to any authority binding on the court as to the requirements for successful interruption of adverse possession. However, as Mr Sweeney submits, the question directly arose in Bligh v Martin. The facts, very shortly stated, were that the plaintiff, who was farming an arable farm through agents, sought to establish that he had acquired a field forming part of that farm by adverse possession. The defendant was the paper title owner of a field and he sought to establish that he had brought the adverse possession of the plaintiff to an end. As it happened the defendant was one of the agents employed by the plaintiff. He could not rely on his acts as an agent but he sought to rely on further acts of his own, namely, putting his own cattle on to the field for four or five winter months a year to eat the stubble and so on. In a subsequent period the defendant also had a grazing tenancy or licence from the plaintiff of land which included the field, but this activity was clearly with the consent of the plaintiff. Pennycuick J rejected the contention that adverse possession had been interrupted. He held that the true owner had to exclude the adverse possessor from possession:
“[The defendant’s] own use of the land by turning heifers on to it during winter months falls, it seems to me, far short of dispossessing the plaintiff. Possession is, from its nature, exclusive in this connexion. There is no question of concurrent possession. It would, I think, be quite wrong to regard the owner of arable farmland as having been dispossessed of that land because during certain winter months he personally makes no use of it and some other person puts cattle on it. Counsel for the defendant, cited Allen v England. In that case, Erle CJ gave a short judgment in these terms ((1862), 3 F & F at p 52): “It may be taken that the plaintiff had the beneficial occupation for more than twenty years, and if that will give him a title, I will give him leave to move. But, in my judgment, every time Cox put his foot on the land it was so far in his possession that the statute would begin to run from the time when he was last upon it.”
Counsel for the defendant relied on that case as an authority for saying that whenever the lawful owner puts foot on land in the possession of another, then he is to be treated as having taken possession himself, so that the adverse possession ceases. I do not think that that case is an authority for such a proposition. Allen v England is a case of permissive user of a garden where the owner paid periodical visits to the garden. In those circumstances, the way in which Erle CJ put it was no doubt correct; but the way in which he puts it is not, I think, in point in the ordinary case of adverse possession. In that ordinary case, one must find that the true owner took possession in the ordinary sense of that word, to the exclusion of the wrongful occupier. I was referred on this point to a number of cases. I shall not go through them, but will mention as an instance that of Doe d Baker v Coombes. I conclude, then, that as regards the first period, the plaintiff remained in adverse possession of No 446 and that there was no cessation of that adverse possession.” (page 812A-F, my emphasis) “It may be taken that the plaintiff had the beneficial occupation for more than twenty years, and if that will give him a title, I will give him leave to move. But, in my judgment, every time Cox put his foot on the land it was so far in his possession that the statute would begin to run from the time when he was last upon it.”[43]The facts in Bligh v Martin were very different from those of the present case. This appeal is concerned with part of a garden, not farmland. Pennycuick J did not have to consider the effect of an attempt to retake possession that had been thwarted by the adverse possessor, or abandoned. Nor did he have to consider the effect of an oral declaration of intent by the paper title owner communicated to the adverse possessor. In my judgment, however, the principle on which Bligh was decided, namely that the factual possession of the adverse possessor must be brought to an end is clearly correct and determines the result on this issue. The principle achieves a simple test for ascertaining whether the period of adverse possession has been brought to an end. Interruption will be overt and so it can be more easily proved or disproved if the question has to be litigated many years later. Furthermore, if the paper title owner did something less than exclude the adverse possessor, such as plant a flag, put up a notice or make an oral declaration of ownership, the adverse possessor would continue to have factual possession in the sense defined in Pye. A person might, therefore, continue to have the intent to possess and factual possession throughout the period of any interruption of his adverse possession by symbolic acts such as I have mentioned. It would, in my judgment, be inconsistent with Pye if an adverse possessor could at one and the same time fulfil the requirements for adverse possession but yet have his possession effectively interrupted by the paper title owner. Finally, there is no need for the paper title owner to know that he is bringing the adverse possession to an end or to say that he is doing so: it is the quality of the acts which matters and not any oral declarations.[44]For all the reasons given above, the Zarbs clearly did not, in my judgment, retake possession in any meaningful sense. It was not enough that the Zarbs planted stakes or took other steps symbolic of taking possession of the whole of the Strip. In my judgment, the judge was entitled to come to the conclusion that he did. I would thus dismiss the appeal in so far as it is based on this issue.[45]According to Megarry and Wade (page 1456) the mental element in paragraph 5(4)(c) is the most important requirement of the third condition in paragraph 5. That work then observes:
“The period of reasonable belief as to ownership must last 10 years. That period of reasonable belief will come to an end once the squatter becomes aware that he does not own the land. Only then will he realise that an application for registration must be made. ”
[46]The judge referred to paragraph 5(4) in paragraph 19 of his judgment before setting out his conclusions on the Parrys’ adverse possession claim. The judge made no finding as to whether the Parrys had a reasonable belief that they owned the Strip or not. He did, however, find that the Ceens used the Strip because “they believed it was theirs and the boundary, the southern boundary, of the land they had acquired was marked by the middle of the hedge that was there to be seen and nowhere else.” (judgment, paragraph 16). By implication, the judge was satisfied that the belief of the Ceens was reasonable. Reading his judgment as a whole, I take the view that, by implication, he must have found that the Parrys similarly had a reasonable belief. The question is whether this finding was against the weight of the evidence because of matters that occurred after the possession of the Ceens.[47]While his order implies that he would have been prepared to find that the sub-condition in paragraph 5(4)(c) was satisfied, there is no finding to that effect and accordingly I have concluded that I should consider in detail whether that would have been the correct finding.[48]The extract from the witness statement of Mrs Ceen set out above shows that she thought that Mr Little had given the Strip to the Ceens in 1992. Moreover, the Parrys thought that the Ceens’ dispute with the Zarbs over the boundary had been resolved when they purchased Fleet House ten years later.[49]We do not have any great detail about the earlier dispute, but Miss Collignon did not argue that the Parrys ought to have realised on buying Fleet House that the boundaries were incorrect. The case was that the Parrys ought to have realised that the southern boundary was inaccurate when they received a letter dated 16 October 2007 from the solicitors for the Zarbs, explaining the basis on which the Zarbs claimed ownership of the Strip (including a reference to Plan B). Miss Collignon placed some emphasis on the fact that Mrs Parry was also a barrister. However, it does not follow that she ought to have accepted the Zarbs’ claim at face value. Mr Powell’s report, commissioned in August 2008, opined that the southern boundary was correctly sited in the middle of the hedge.[50]The Zarbs cannot rely on the later report of Mr Atkinson as this was not obtained until after the start of the proceedings and thus cannot affect the reasonable belief to which paragraph 5(4)(c) refers.[51]In my judgment, the belief of the Parrys was a reasonable one to hold. When they purchased Fleet House, the dispute was dormant as the Zarbs had not raised the dispute in response to Mrs Ceen’s communications. The dispute remained dormant for the next five years as there were no communications challenging the southern boundary from the Zarbs until 2007. By that time, they and the Ceens had together been in possession of the land for well over ten years. The report of Mr Powell confirmed the Parrys’ belief that the physical boundaries were correct. Mr Powell was a qualified surveyor and he gave reasons supporting his opinion. In those circumstances, the belief of the Parrys in my judgment continued to be reasonable. Mrs Collignon laid some emphasis on the fact that Mrs Parry was a barrister but she did not suggest that she would necessarily have had a detailed knowledge of this area of the law.[52]Accordingly, I reject the submissions of Miss Collignon on this issue.

Disposal of the appeal

[53]For the reasons given above, I would dismiss this appeal.

Postscript

[54]As this is the first decision of this court about the operation of section 98 of, and paragraph 5(4) of schedule 6 to, the 2002 Act, I will conclude with some observations on the way in which the new provisions operate.[55]The 2002 Act creates difficulties for proprietors with disputed boundaries. If a person discovers that his boundary is in fact on his neighbour’s land and that he has been in possession for ten years, he can if he acts promptly apply to the Land Registry to be registered as proprietor of any land outside his title. The new provisions will, however, require the registrar to give notice of the application to the paper title owner of the land sought to be acquired. If the registered proprietor does not oppose the application, registration will follow. If the registered proprietor opposes the application, the adverse possessor may be unable to satisfy the third condition in paragraph 5 of schedule 6 to the 2002 Act, and will fail to secure registration save in the exceptional case where he can show that another condition is satisfied.[56]In the present case, the Zarbs wished to sidestep the need for legal proceedings for possession of the Strip by dispossessing the Parrys. They were, on the law as I have held it to be and the facts as found by the judge, unsuccessful. They also took proceedings which had the result that the Parrys could not make any application for registration of the Strip in their own names. The result of the judge’s findings, however, is that the Zarbs’ paper title has been lost by the operation of section 98 of the 2002 Act.[57]If, however, the Parrys had been away on holiday when the Zarbs tried to dispossess them from the Strip, the Zarbs might well have completed the act of dispossession. In those circumstances, the Parrys would on these facts have been able to secure registration of the Strip in their own name if they had made an application for registration within six months. They could have added together their occupation of the land with that of the Ceens. There would have been no need meanwhile for the Parrys to take down the Zarb’s newly-erected boundary fence and re-establish their possession of the Strip while that matter was being dealt with by the Land Registry. But, if the application is not made within six months, the adverse possessor may be unable to satisfy the conditions in paragraph 5 of schedule 6.[58]These proceedings have been costly and there is a cautionary story here for purchasers of land. No doubt those advising on transfers of land will consider what they need to do in future to protect their clients from costly disputes such as this one. Purchasers are not necessarily protected merely because the seller gives an assurance that the dispute with a neighbour has seemingly “gone away”. Boundary disputes have a habit of reappearing until finally resolved. The neighbour or the neighbour’s successor in title may, for whatever reason, resuscitate the dispute, unless something is done to prevent them from doing so. It may be that the purchaser will have to consider whether to ask the neighbour to confirm the boundaries and have the necessary deed of confirmation registered at the Land Registry in a manner capable of binding successors in title. That will involve extra costs and delay but the costs may be less than the undoubted cost of litigation of this kind. If the neighbour refuses to be bound by an agreement as to the boundary the purchaser will then know the risks that he is running by completing the purchase. Moreover, the purchaser on acquiring possession might himself be advised to bring matters to a head by himself applying for registration as owner of the land in question.[59]If a dispute emerges, every effort should be made to resolve it without litigation. It is not clear to me why the southern boundary was so important to the Zarbs. It was important to the Parrys because the Strip was part of their garden and because they had built a balcony on their coach house which overhung the Strip and which, therefore, trespassed on the Zarbs’ property if they owned the Strip. Mr Powell suggested a sensible result. I find myself in agreement with the judge’s observation that it is simply not clear why the parties have been unable to resolve this matter. He goes on to speculate about whether the driving force is the legal costs. If that is so, and it has in the past been found to be the reason for an appeal in a boundary dispute, it highlights the need for professional advisers to think about some kind of strategy such as I have suggested above.[60]I agree with both judgments. In relation to the second issue (interruption of possession), in so far as there is any difference of emphasis I prefer the approach of Lady Justice Arden.

The Master of the Rolls:

[61]Having read the comprehensive judgment of Arden LJ, I agree that this appeal should be dismissed. However, not least because I have had doubts as to whether one of the points raised on behalf of the appellants (“the Zarbs”) should be rejected, I shall briefly express my reasons in my own words.[62]This case concerns an area of land (“the strip”) some 890 square feet in area, which, as the Judge found, was included in the paper title of the property owned by the Zarbs, but to which, as he also found, title had been acquired through adverse possession by their neighbours, the respondents (“the Parrys”).[63]The Judge’s first finding is now common ground, but his second finding is challenged on this appeal by the Zarbs. They rely on three grounds to found their contention that the Judge was wrong to accept the Parrys’ claim that they had acquired title to the strip, by adverse possession pursuant to the provisions of the Land Registration Act 2002 (“the 2002 Act”) whose relevant provisions are set out and explained by Arden LJ in paras 12-19 above.[64]The first ground relies on the fact that, when Mr Little, the Zarbs’ predecessor in title, sold off the property now owned by the Parrys (“the Parrys’ property”) to Mr and Mrs Ceen (who sold on to the Parrys in 2002), he erected a fence along a line which effectively fenced off the rest of the property which he retained (“the Zarbs’ property”) from the strip. Drawing support from Mrs Ceen’s statement in her statutory declaration that Mr Little thereby “chose to give us the extra tree and a few feet”, Ms Collignon, for the Zarbs, argues that the Parrys’ predecessors, the Ceens, therefore occupied the strip as licensees of Mr Little, at least until 2000, when Mr Little died and his executors sold the Zarbs’ property to the Zarbs.[65]If that argument were correct, it would mean that, at least until the alleged licence was revoked (presumably on the death of Mr Little in 2000), the possession of the strip by the Parrys’ predecessors, Mr and Mrs Ceen, could not have been “adverse” within the meaning of para 5(4) of schedule 1 to the 2002 Act. However, the argument is plainly not correct. It is, of course, possible for a court to find, on the relevant facts, that a licence has been granted or agreed by conduct. However, before such a finding can be made, the court has to be tolerably clear that, objectively assessed, that was the intention of the alleged grantor. As is stated in Megarry and Wade, The Law of Real Property, 7th ed, page 1417, the act relied on “must be probative of and not merely consistent with the giving of permission”.[66]In this case, I do not see how, without more, the mere fencing off the remainder of his property from the strip by Mr Little, could be regarded as having created a licence in favour of the person whose land adjoined the other side of the strip, namely Mr and Mrs Ceen as owners of the Parrys’ property. At least without further evidence, such fencing could have been at least equally consistent with Mr Little having abandoned the strip, or wanting to have the strip as a cordon sanitaire or as a means of access to the far side of the fence. As for Mrs Ceen’s comment, she was not, as far as I know, a lawyer, and what she said, when read in its context, did no more than describe the effect of Mr Little’s fencing as abandoning the strip, which would not have been inconsistent with the Parrys’ case that they had acquired title by adverse possession.[67]I turn to the Zarbs’ second argument, which is that the Parrys’ adverse possession of the strip was interrupted in July 2007, when, it is said, the Zarbs re-took possession of the strip. On the facts of this case, such an interruption would be fatal to the Parrys’ claim to have title by adverse possession even though they had clocked up more than ten, and even more than twelve, years adverse possession by that time – see section 98(1) of, para 5(4)(c) of schedule 1, and para 1(2) of schedule 6, to the 2002 Act.[68]The evidence on this point is set out in full in para 7 above. Although the Zarbs were present on the strip for less than an hour, they carried out acts which may be said to be to be(i) inherently redolent of ownership, and/or(ii) signalling the retaking of possession. Chopping down the elderflower tree is in category (i). Category (ii) includes Mr Zarb marking off the paper boundary with a tape, stating that he was taking back the strip as it belonged to him, and refusing to vacate until threatened with the police being called. Into both categories are uprooting the Parrys’ fence and banging in posts to mark the paper boundary.[69]The fact that the Zarbs were present on the strip for less than an hour does not prevent their actions when on the strip from being a retaking of possession – see Randall v Stevens (1853) 2 E&B 641, per Lord Campbell CJ. In that case, it was held that possession had been retaken, but the facts were stronger than in this case in that the paper title-holder physically evicted the occupier, his family and all his furniture, albeit only for an hour, from the property in question, which was a house. Accordingly, there is no doubt that the person claiming adverse possession was physically completely excluded from the property, which remained, albeit for a short period, in the exclusive occupation and control of the paper title owner.[70]The judgment of Erle CJ in Allen v England (1862) 3 F&F 52, at any rate at first sight, gives some support for the Zarbs’ case in that it includes the proposition that “every time [the paper title owner] puts his foot on the land, it [is] in his possession”. However, that apparently rather extreme view is in my judgment explained by reference to the particular facts of the case, which involved “permissive use of a garden”, as Pennycuick J put it in Bligh v Martin [1968] 1 WLR 804. In that later case, it was found that, although he had occupied and made use of the land in question, the paper title owner had never retaken possession of it. However, just as the facts in Randall 2 E&B 641, and indeed in Allen 3 F&F 52, were more strongly in favour of the paper title owner than those of this case, so it seems to me clear that the facts in Bligh [1968] 1 WLR 804 were weaker from the point of view of the paper title owner than those in the present case.[71]However, the decision in Bligh [1968] 1 WLR 804 is valuable for present purposes in that Pennycuick J gave some guidance of general application, when he said that “in the ordinary case of adverse possession … one must find that the [paper title] owner took possession in the ordinary sense of that word, to the exclusion of the [person claiming adverse possession]”. Given the fact-specific and nebulous nature of possession, I consider that, in so far as general guidance can be given in relation to the task of deciding whether, on particular facts, the paper title owner has retaken possession at any time during the period of alleged adverse possession, that is probably as good as it can get.[72]In the present case, applying that general guidance, I have reached the conclusion that the Zarbs did not retake possession of the strip on the occasion in July 2007 described in para 7 above, and that the judge was entitled to reach that conclusion (which he did in very brief terms). What the Zarbs did, in my opinion, was to prepare to take possession, but they never completed the exercise. When they knew the Parrys were away from their property on a shopping expedition, the Zarbs took preliminary steps with a view to excluding the Parrys from the strip, by removing some of the Parrys’ fence, and starting to erect their own fence (presumably on the paper boundary), but they got no further than taking preliminary steps. When the confrontation with the Parrys occurred, the strip had not been fenced off from the Parrys’ property by the Zarbs, and, although the Zarbs initially threatened to exclude the Parrys when challenged and asked to vacate, the Zarbs ultimately backed down, and departed from the strip, leaving the Parrys in control.[73]In other words, while the Zarbs embarked on an enterprise which, if it had been completed, would have involved their retaking possession of the strip, they were interrupted by the Parrys before the enterprise had been completed, and, in the ensuing confrontation, they abandoned the enterprise. Accordingly, rather than retaking possession of the strip, it seems to me that, although they got some way towards achieving that aim, the Zarbs were thwarted in their attempt to do so, and had not completed it before the Parrys appeared, and, thereafter, when challenged, the Zarbs backed down pretty promptly (and, most people would I think say, properly).[74]Unlike the adverse possessors of the house in Randall 2 E&B 641,the Parrys never lost control or possession of the strip to the paper title owners, although it may have been a pretty close run thing: if they had stayed out shopping for another hour, the Zarbs may have completed the execution of their plan. However, as Pennycuick J pointed out in Bligh 812, in order to succeed in their argument, the Zarbs would have to have taken possession “to the exclusion of the [Parrys]”.[75]It is true that the Zarbs also did things which may arguably be characterised as acts of ownership in the form of chopping down a tree and pulling up a fence, and they must be taken into account as part of the totality of the facts of that rather fraught hour on 29 July 2007. However, even taking them into account, I do not consider that the Zarbs did enough to be able to say that they effectively excluded the Parrys from the strip. The pulling up of the fence was part of the preparatory work done in order to retake possession, but, as I have said, that work never reached fruition. As for the tree-chopping, it seems to have been little more than a rather spiteful act involving an elder, which many people would characterise as a shrub rather than a tree. Further, although the Zarbs’ case cannot fail simply because of the fact that they are relying on events which took place over a very short period, I do consider that, when assessing whether the Parrys were excluded, the fact that the Zarbs rely on events which occurred over a very short length of time is a relevant factor.[76]I must admit to having found the Zarbs’s second point much more difficult to resolve than I think Arden LJ has done. However, in the end, for the reasons which I have attempted to give, I consider that the judge was entitled to reject it, and if, as is probably the case, it is a point which this court has to decide on a binary, right or wrong, basis, I have concluded that the judge was right.[77]That leaves the Zarbs’ third point, which is that, during the last couple of years while they enjoyed possession, the Parrys cannot reasonably have believed that they owned the strip – see para 5(4)(c) of schedule 1 to the 2002 Act. This argument was presented on the basis that the Parrys received a letter in October 2007 from the Zarbs’ solicitors which made it clear that the Zarbs were the paper title owners of the strip, and how they made that proposition out.[78]That does not seem to have been a point which was much canvassed below: certainly, the judge seems to have given it scant attention in his judgment, although Ms Collignon realistically accepts that he implicitly rejected it.[79]It is clear that the Parrys and their predecessors believed that they owned the strip, so the issue is whether that belief was reasonable after October 2007, and the Judge, who was the primary fact finder, albeit implicitly (as I have just mentioned), concluded that that belief was reasonable.[80]Further, it is clear that a Fellow of the Royal Institution of Chartered Surveyors, Mr Powell, who fully investigated the dispute well after the October 2007 letter, concluded that the strip was owned by the Parrys, and he was not called as a witness. In my view, in the absence of any other evidence to assist the Zarbs, that fact, coupled with the Judge’s finding, renders it impossible to maintain on this appeal that the belief of the Parrys to the same effect was unreasonable. Mr Powell is experienced in neighbours’ dispute cases, and the fact that he may have exceeded the scope of his instructions when expressing his view as to the location of the paper title boundary (a point it is unnecessary to decide) is irrelevant: he thought it was part of his instructions, and he reached a clear and sensible conclusion, and one which he presumably thought minimised discontent and disruption. Between the provision of Mr Powell’s report and the issue of these proceedings, it was not suggested that there was any further evidence, which would have been relevant on the issue of the reasonableness of the Parrys’ belief.[81]For these reasons, which substantially reflect those more fully expressed by Arden LJ, I would dismiss the Zarbs’ appeal.

Cited in 6 later judgments