Anthony Charles Clapham & Ors v Dee Narga [2023] EWHC 3337 (Ch)

“(2) and (4) each raise issues about the factors which I have taken into consideration in construing the conveyances of Nos 25 and 26 the Green. As to No.25 (the 1988 conveyance): it is said that I erred in considering in the factual matrix the earlier plan to the conveyance of No.26 in 1982 and that this plan could not be a relevant fact in considering the later conveyance of No.25. However, as a matter of fact it was plainly a plan which the parties to the conveyance had in their possession at the time of the 1988 conveyance. As to the 1982 conveyance of No.26 it is said that I placed too much weight on the conveyance plan. Both of these issues are in reality evaluation of the facts. For the reasons set out in my judgment the clear interpretation of the conveyances of both 25 and 26 lead to the conclusion that the boundary was the north edge of the south bank of the brook. The presumption does not apply either as a presumption in its own right (because there are conveyances to construe) or, on the facts, as an aid to construction.”

“(i) a declaration that the boundary between 26 the Green and Brook Barn is the line of the Fence; (ii) alternatively, a declaration that they are entitled to be registered as the proprietor of the extent of the Wrights’ Strip to the north of 26 The Green; (iii) a declaration that they are entitled to be registered as the proprietor of the extent of the Wrights’ Strip to the north of 25 The Green; (iv) an injunction to restrain the Defendant, her contractors and agents from entering the Wrights’ Strip or any other part of 25 The Green and 26 The Green; (v) an injunction restraining the Defendants, her contractors and agents from removing plants, shrubs and materials from the Wrights’ Strip or any other part of 25 The Green and 26 The Green; and (vi) damages in the sum of £604.”

“64. By a conveyance dated 8 October 1982 (“the 1982 Conveyance”) Mr Crowden conveyed No.26 to David William Allen (“Mr Allen”) [66]. Paragraph 1 of the conveyance states “ . . The Vendor or as Beneficial Owner HEREBY CONVEYS onto the purchaser ALL THAT parcel of land TOGETHER WITH the dwelling house erected thereon or on some part thereof and known as Number 26 the Green Thrussington Leicestershire All of which property is delineated for the purposes of identification only on the plan annexed hereto and thereon edged RED . .”

“Mr Crowden confirmed to me that 26 The Green included both banks of the Brook. That was consistent with the position on the ground. At the time, Mr Crowden did not make any use of the north bank between the Brook and the stock-proof fence and, indeed, his tenants – the Swinglers – actively gardened the north bank as it ran past 25 The Green. Jack also gave me a plan, a copy of which is at page 5 which appears to be a copy of the plan attached to the conveyance of 26 The Green to Mr Allen, to illustrate what he meant. The court will see that the red line showing the land conveyed very clearly runs to the north of the Brook, indicating that land to the north of the Brook was part of the conveyance. The same plan was sewn into our HMLR office copies.”

“75. By September 1986 Mr Crowden had died. By a conveyance between Mr Crowden’s executors and the Wrights dated 28 October 1988 [81] (“the 1988 Conveyance”), the executors conveyed No.25 to the Wrights. The description of the property was in the Second Schedule as being “ALL THAT freehold property being the land dwellinghouse and premises situate and known as Number 25 The Green Thrussington in the County of Leicester subject to and with the benefit of as the case may be all such rights easements and appurtenances appertaining or belonging or to which the said property hereby conveyed is now subject.”

“96. As to the evidence available to the parties to the 1982 Conveyance at the time, there is very little which is before me. There are no photographs of how the land then looked, the position or condition of the Fence or the planting then in existence. However, I find that the physical features of the Brook and the Bridge were then present as they are today. In addition there are photographs which show the condition in the years which followed. Although the existence of trees and foliage has changed (see below under Adverse Possession), I find the steepness of the banks on each side each of the Brook were also as they are now. The tree planting came later (see for example the photograph taken not long after the Wrights’ purchase of no.26 at [525]). 97. I am also satisfied on the balance of probabilities that at the time of the 1982 Conveyance there was a stock-proof fence which ran along the north bank of the Brook. I find that the position of this stock-proof fence was in substantially the same position as indicated on the 2019 plan at [454]… …98. I also accept that the Wrights and Claphams have maintained the Fence opposite their respective properties over the years although inevitably over a period of 36 years from 1984 to 2020 there will have been parts of it which have fared better than others and I accept that by 2020 some parts of it may have appeared dilapidated. As to the maintenance of the Fence, in a letter dated 25 January 2010 [173] the then owners of Brook Barn complained to Mr & Mrs Clapham that they had been making repairs to the wire fencing and asserted that it did not belong to them. I find that notwithstanding that complaint Mr & Mrs Clapham continued to maintain the Fence from time to time. It remained in existence until Ms Narga’s purchase of Brook Barn although I accept that parts, and particularly the sections at the western end opposite No.24 had become dilapidated. This was noted in the survey plan drawn in 2019 for Mr Taylor [513] and it was this part of the Fence which I find enabled Ms Narga, Mr Fothergill and Mr Chapman to reach the Brook. Although their recollections were understandably not entirely clear as to how they had descended to the Brook, both Mr Chapman and Mr Fothergill described going to the western side of Brook Barn closer to the electricity substation.”

“a. As to the 1982 Conveyance, I agree with Mr Gale that the plan which is to be interpreted is the one attached to the 1982 Conveyance (and not any of the other apparent iterations of it). I also agree that the discussion between Mr Wright and Mr Crowden (and the version of the plan which I accept was produced by Mr Crowden at the meeting) is not admissible evidence on the construction of the 1982 Conveyance. It was Mr Crowden’s subjective view of what he had meant to convey. Although I accept Mr Wright’s evidence that the conversation took place and that Mr Crowden gave him the copy of the plan which he produced in evidence, that discussion is not admissible evidence of the proper interpretation of the conveyance and I disregard it. b. Although I agree with the Claimants that the 1982 Conveyance Plan cannot be used to delineate precise boundaries, nevertheless it is the only descriptor of what was intended to be conveyed. The red line on the 1982 Conveyance Plan is quite clearly to the south side of, and adjacent to, the blue line which is obviously intended to denote the Brook. Although I am unable to reach a concluded view as to the meaning of the black line to the north of the brook, it is not the red line. It is likely to have been drawn round the boundary of the red line to add definition and was drawn north of the Brook to avoid confusion because the red line was at the Brook. Although the plan is not to scale and neither it nor the 1982 Conveyance give measurements, the fact remains that the red line does not extend north of the Brook but abuts it to the South. c. The Brook is a natural feature which has been in existence for many years prior to the division. If there was going to be a division at or close to the Brook, it would be an obvious boundary feature to choose. d. I find that the Fence - a stock-proof fence to the north of the Brook - is not delineated on the 1982 Conveyance Plan as a feature. The black line to the north of the Brook immediately abuts the Brook and does not extend north up the bank. This is contrasted with the Fence as it appears on the later Brook Barn title plan at [94]. In my judgment the black line on the 1982 Conveyance Plan does not represent the Fence, which did not stop behind No.26 but ran further to the west past No.25 and then No.24. The erection of a stock-proof fence whilst the land was in single ownership does not assist the proper construction of the 1982 Conveyance when there was an obvious purpose for it in preventing livestock from reaching the Brook. It was not erected as a boundary fence. e. Although the Bridge plainly allowed access to the north bank from No.26, equally it would allow access to No.26 from the Barn and Seagrave Road beyond. When the land was in single ownership, it would allow passage both ways. Accordingly, the presence of the Bridge at the time when the land was separated gives no indication or assistance in understanding whether the north bank was to be conveyed to Mr Allen or not. The existence of the Bridge for many years (going back to at least 1903) does not assist the proper construction of the 1982 Conveyance. f. There is no evidence to suggest that the Fence was erected by Mr Crowden to denote the boundary. Indeed, as I have set out above, in my judgment the Fence had been erected at an earlier stage to avoid animals getting into difficulty and well before there was a boundary to be created. g. As to the suggestion by Ms Narga that there was a boundary on the southern bank, I find that there was no boundary fence in place on the southern bank of the Brook at any time. In fact, there is no evidence whatsoever that there was any boundary fence along the south bank of No.26 at the time of the 1982 Conveyance or of No.25 of the time of the 1988 Conveyance. Ms Narga has referred to what appears to be chicken wire under the Wrights’ studio as depicted in the photographs taken in 2020 [627]. I accept the explanation given by Mr Wright and I find that the purpose of this fencing was to keep wildlife out from under the studio. It was also suggested that there was fencing on the south bank of No.26 [533]. Again, I accept Mr Wright’s explanation that this is not a boundary fence but an ornamental pergola. Other (and clearer) pictures of it are at [531], [527] and [541]. It obviously does not run along the length of the southern bank. The absence of any clear boundary fence on the south bank also supports my view (see paragraph 102 below) that the two lines on the title plans of No.26 (Figure 5 above) and Brook Barn (Figure 1 above) were intended to denote the banks of the Brook. h. Although I accept that at no time after the 1982 Conveyance did Mr Crowden or his family attempt to stop or disturb the Wrights’ use of the northern bank up to the Fence nor did they attempt to make any use of it themselves, equally I find (as indeed is argued on behalf of the Claimants) that the northern bank below the Fence has very limited utility. I accept that no objection had been taken by the Crowdens to the use of the land on the northern bank opposite No.25 by their tenants the Swinglers but as farmers they were, I find, more concerned about animals getting into the Brook in difficult conditions (see eg the photographs at [542]). In my judgment there is nothing to be derived from the conduct of the owners of Brook Barn after the two conveyances to support the interpretation for which the Wrights contend.”

“Accordingly, say the Claimants, the effect of Ms Narga’s registration is not to vest in her a title to the disputed land, as her predecessor had no title to convey. The provisions of Schedule 3 are not engaged where there is no determined boundary and the land to which title is claimed falls within the scope of the general boundaries rule. If the Claimants’ adverse possession extinguished the title of the previous owners to the disputed land then the Claimants are entitled to be registered as proprietors and can make an application for the boundary to be determined accordingly.”

“a. The effect of the 2002 Act was to change the law with regard to adverse possession. Under section 96(1), no period of limitation under section 15 of the Limitation Act 1980 runs against any person in relation to an estate in land the title to which is registered. By section 96(3) section 17 of the Limitation Act (extinction of title on expiry of time limit) does not operate to extinguish the title of any person where, by virtue of that section, a period of limitation does not run against him. b. I accept the reasoning set out in Jourdan of Adverse Possession (para 21-48, authorities bundle p.441): “Where a squatter claims that, before the title to the land in dispute was registered in the name of a person with the paper title, the squatter had already acquired title to it by adverse possession, his claim may not fall under Sch 12, para 18 of the 2002 Act. If title to the land was first registered before 13 October 2003, it seems likely that the Land Registration Act 1925. S.75 would have applied, so as to make the registered proprietor the trustee for the title for the squatter from the moment the title was registered. In that case, Sch 12, para 18 will apply. 21-49: However, if title is not registered until on or after 13 October 2003 then Sch 12 para 18 has no application …” c. The position here is that title to Brook Barn was registered before 12 October 2003 (see above) and therefore, although the Wrights claimed to have acquired title by adverse possession by 29 October 2000 at the latest, that gave rise to the then owner of Brook Barn holding the title to the disputed land relating to Nos.25/26 as trustee for the Wrights under section 75 of the Land Registration Act 1925 and therefore the 3 year transitional period applied and lapsed on 12 October 2006. In the absence of registration of title by adverse possession, section 96 applied. d. Although under the new provisions under the 2002 Act, Schedule 6 (given effect by section 97), a person may apply to the Land Registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application, I am not the Land Registrar and this claim is not being pursued under that provision. e. Mr Morris argues that if no boundary has been fixed then if the land in dispute would be within the general boundaries provision, the provisions as to adverse possession in the 2002 Act do not apply. It is clear, however, that that very issue is canvassed by paragraph 5 of Schedule 6: the applicant under Schedule 6 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.” f. It follows that the 2002 Act has a specific mechanism to deal with the very situation where no exact boundary has been determined. It does not take the situation outside the scope of the 2002 Act. To the contrary, it deals with it directly. 142. In my judgment, in order to give effect to the title by adverse possession which is claimed by the Claimants, it is therefore necessary for them to show that they were in actual occupation of the disputed land and that their occupation would have been obvious on a reasonably careful inspection of the land at the time of the disposition to Ms Narga in 2020. Actual occupation means something more than a right to occupy, but in my judgment it does not have to be continuous occupation existing at the time of an inspection. Actual occupation is a question of fact to be determined in accordance with the nature of the land concerned, in a similar way to adverse possession itself. Whether the occupation is obvious is also a question of fact, but viewed on an objective basis by the reasonably careful inspector. This is the approach which I shall adopt below.” “Where a squatter claims that, before the title to the land in dispute was registered in the name of a person with the paper title, the squatter had already acquired title to it by adverse possession, his claim may not fall under Sch 12, para 18 of the 2002 Act. If title to the land was first registered before 13 October 2003, it seems likely that the Land Registration Act 1925. S.75 would have applied, so as to make the registered proprietor the trustee for the title for the squatter from the moment the title was registered. In that case, Sch 12, para 18 will apply. 21-49: However, if title is not registered until on or after 13 October 2003 then Sch 12 para 18 has no application …” “ . .(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.”

“169. As to “actual occupation”, for the same reasons which I have set out relating to possession above, in my judgment the Claimants were in actual occupation of the north bank. 170. However, as I have set out above, by the time that Ms Narga inspected Brook Barn prior to her purchase the Fence had deteriorated in places. As I have said in 2019 the survey noticed that it was dilapidated at the section opposite No.24. I accept Mr Chapman’s evidence that he did not notice a fence on the north bank when he was on the site on 18 May 2020 (before any site clearance was carried out by Ms Narga), having gone down the bank on the side of Brook Barn nearer the electricity substation. This is on the No.24 side of the Bank. This also accords with Mrs Clapham’s evidence that it had not been thought necessary to take steps to exclude people until Ms Narga came along. I find that at the No.24 end the Fence was dilapidated and did not operate to keep people out, certainly at the western end. 171. I also find that in the Spring of 2020 the Claimants had allowed the vegetation down by the Brook to grow extensively and had not cut it back to any significant or noticeable extent. Although I accept that the Claimants may have been content to allow the north bank to develop a less manicured appearance than the rest of their garden, I accept that even on a reasonably careful inspection it would not have been apparent that the Claimants were in occupation of the north bank. The photographs taken by Ms Narga in April to June 2020 [613-659] do not demonstrate any current cultivation or plant management. In my judgment the Claimants’ own photographs confirm the general impression (see for example the pictures of the Clapham’s son in the Brook on 2 May 2002 [555, 556]). 172. Ms Narga (on her 8 visits), Mr Fothergill and Mr Chapman all came to the view that the vegetation on the north bank was overgrown and unkempt. Having seen the photographs of the site at that time I find that the conclusion was not unreasonable or that they were closing their minds to the obvious. 173. I therefore find that the occupation by the Claimants of the north bank was not “obvious” (the word used in paragraph 2 to Schedule 3 of the 2002 Act) on a reasonably careful inspection of the land.”

“IT IS DECLARED THAT 1. The First and Second Claimants are entitled to be registered as the freehold proprietors of the Tree House Land pursuant to sections 15 and 17 of the Limitation Act 1980. 2. The boundary between the Wrights’ Property and Brook Barn is the northern edge of the south bank of the Brook (which for the avoidance of doubt includes the areas built up and reinforced as at March 2022). IT IS ORDERED THAT In relation to the Claimants’ claim for declaratory relief: 3. The Claimants’ claim for a declaration that the boundary between the Wrights’ Property and Brook Barn is the Fence is dismissed. 4. The Claimants’ claim for declaratory relief in respect of their entitlement to be registered as proprietors of the Claphams’ Strip and the Wrights’ Strip is dismissed.”

“The effect of adverse possession upon the title of the owner of unregistered land is as follows. Before 1833 the effect of the Statutes of Limitation was merely to bar rights of action. They extinguished remedies not rights. Thus a person whose right to recover land had been barred might, if it was possible to recover it peaceably, reassert his or her old title. This principle still applies to pure personalty, other than chattels; but as regards land it was abolished by the Real Property Limitation Act 1833. The rule now is that, at the end of the limitation period, both the right of action to recover the land and the claimant’s title to it are extinguished. This applies equally to redemption and foreclosure actions. When title to land has been extinguished by adverse possession, the rights which that title carried are also extinguished. The former owner cannot thereafter sue the squatter either for rent that fell due before title was extinguished or for damages for trespass.”

“…at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.”

“Where the registered land is a freehold estate, the registration of any person as first proprietor thereof with an absolute title shall vest in the person so registered an estate in fee simple in possession in the land, together with all rights, privileges, and appurtenances belonging or appurtenant thereto, subject to the following rights and interests, that is to say,— (a) Subject to the incumbrances, and other entries, if any, appearing on the register; and (b) Unless the contrary is expressed on the register, subject to such overriding interests, if any, as affect the registered land; and (c) Where the first proprietor is not entitled for his own benefit to the registered land subject, as between himself and the persons entitled to minor interests, to any minor interests of such persons of which he has notice, but free from all other estates and interests whatsoever, including estates and interests of His Majesty.”

“(1) All registered land shall, unless under the provisions of this Act the contrary is expressed on the register, be deemed to be subject to such of the following overriding interests as may be for the time being subsisting in reference thereto, and such interests shall not be treated as incumbrances within the meaning of this Act, (that is to say):—….(f) Subject to the provisions of this Act, rights acquired or in course of being acquired under the Limitation Acts;….”

“276. Fixed boundaries. If it is desired to indicate on the filed plan or General Map, or otherwise to define in the register, the precise position of the boundaries of the land or any parts thereof, notice shall be given to the owners and occupiers of the adjoining lands, in each instance, of the intention to ascertain and fix the boundary, with such plan, or tracing, or extract from the proposed verbal description of the land as may be necessary, to show clearly the fixed boundary proposed to be registered; and any question of doubt or dispute arising therefrom shall be dealt with as provided by these rules.” “278. General boundaries. (1) Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan or General Map shall be deemed to indicate the general boundaries only. (2) In such cases the exact line of the boundary will be left undetermined—as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream. (3) When a general boundary only is desired to be entered in the register, notice to the owners of the adjoining lands need not be given. (4) This rule shall apply notwithstanding that a part or the whole of a ditch, wall, fence, road, stream, or other boundary is expressly included in or excluded from the title or that it forms the whole of the land comprised in the title.”

“But with all respect to Mr. Plowman's argument, which he has put before us with his customary skill and force, I find myself to be in this respect of entirely the same opinion as was Jenkins L.J. I would go with Mr. Plowman this far, that a boundary dispute and a property dispute may be two things quite different. It is true that a property dispute may, and frequently does, involve boundaries, and that a boundary dispute involves in some degree a property dispute; and if the divergence is very great indeed, you may say that the matter has passed from any sensible use of the phrase "boundary dispute" and becomes something else. But applying the common-sense test, if, as Mr. Plowman invited us to do, you put the question here: is the plaintiff saying in truth that the defendant got the wrong property by the land certificate? I would answer the question negatively. I think, for my part, that there is no doubt that the certificate purported to give him, and gives him, the right property. What, on the evidence, it has failed to do is to indicate its boundaries with sufficient correctness and precision.”

“(1) This section is concerned with the registration of a person under this Chapter as the proprietor of a freehold estate. (2) Registration with absolute title has the effect described in subsections (3) to (5). (3) The estate is vested in the proprietor together with all interests subsisting for the benefit of the estate. (4) The estate is vested in the proprietor subject only to the following interests affecting the estate at the time of registration— (a) interests which are the subject of an entry in the register in relation to the estate, (b) unregistered interests which fall within any of the paragraphs of Schedule 1, and (c) interests acquired under the Limitation Act 1980 of which the proprietor has notice.”

“(1) If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration. (2) For the purposes of subsection (1), the priority of an interest is protected— (a) in any case, if the interest— (i) is a registered charge or the subject of a notice in the register, (ii) falls within any of the paragraphs of Schedule 3, or (iii) appears from the register to be excepted from the effect of registration, and (b) in the case of a disposition of a leasehold estate, if the burden of the interest is incident to the estate. (3) Subsection (2)(a)(ii) does not apply to an interest which has been the subject of a notice in the register at any time since the coming into force of this section. (4) Where the grant of a leasehold estate in land out of a registered estate does not involve a registrable disposition, this section has effect as if— (a) the grant involved such a disposition, and (b) the disposition were registered at the time of the grant.”

“An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for— (a) an interest under a settlement under the Settled Land Act 1925; (b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so; (c) an interest— (i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and (ii) of which the person to whom the disposition is made does not have actual knowledge at that time; (d) a leasehold estate in land granted to take effect in possession after the end of the period of three months beginning with the date of the grant and which has not taken effect in possession at the time of the disposition.”

“8.76 As we explain in Part XIV of this Report, the Bill introduces a completely new system of adverse possession in relation to registered estates. The circumstances in which a squatter becomes entitled to be registered as proprietor in place of an existing one will be considerably reduced. However (1) there will still be cases where there is such an entitlement to be registered; and (2) there will be cases where a person had become entitled to be registered before the Bill is brought into force. 8.77 In the Consultative Document, we recommended that section 70(1)(f) of the Land Registration Act 1925 should not be replicated. We noted that (1) a squatter who had acquired a right to be registered as proprietor had a proprietary right that he or she could protect by actual occupation; but (2) as the law stood, once a squatter was entitled to be registered, his or her rights constituted an overriding interest even if he or she thereafter ceased to be in actual occupation. If a squatter ceased to occupy the land after he or she had become entitled to be registered as proprietor, the following events might occur. The registered proprietor might resume possession of the land and then sell it to a buyer before the squatter’s right to be registered was itself barred by the registered proprietor’s own adverse possession. The buyer would then be bound by the squatter’s overriding interest even though he or she had bought the land from a registered proprietor in possession. The buyer would not be entitled to any indemnity should the register be rectified in favour of the squatter, because he or she would not have suffered loss by reason of the rectification, but because he or she was subject to the squatter’s overriding interest. 8.78 Our recommendation to abolish this category of overriding interests was supported by 80 per cent of those who responded to the point on consultation and the Bill does not, therefore, replicate section 70(1)(f). However, the Bill does contain two provisions that relate to the rights of squatters. First, there are limited transitional provisions to protect vested rights. For three years after the Bill is brought into force a squatter, even if not in actual occupation, will have an overriding interest (1) on first registration, where he or she had extinguished the title of the person who is registered as first registered proprietor prior to the coming into force of the Bill; (2) in relation to any registered disposition, where he or she was entitled to be registered as proprietor of registered land prior to the coming into force of the Bill. These transitional provisions will provide a reasonable opportunity for any squatter who is no longer in actual occupation of the land which he or she claims, to register his or her rights. Secondly, as we have explained in Part III of this Report, on first registration, the legal estate is vested in the first registered proprietor subject to interests acquired under the Limitation Act 1980 of which he or she has notice at the time of registration. We consider that these provisions strike a fair balance between the vested rights of squatters and the need to protect innocent buyers who cannot discover the existence of those rights.”

“(1) No period of limitation under section 15 of the Limitation Act 1980 (time limits in relation to recovery of land) shall run against any person, other than a chargee, in relation to an estate in land or rentcharge the title to which is registered. (2) No period of limitation under section 16 of that Act (time limits in relation to redemption of land) shall run against any person in relation to such an estate in land or rentcharge. (3) Accordingly, section 17 of that Act (extinction of title on expiry of time limit) does not operate to extinguish the title of any person where, by virtue of this section, a period of limitation does not run against him.”

“(1) Where a registered estate in land is held in trust for a person by virtue of section 75(1) of the Land Registration Act 1925 immediately before the coming into force of section 97, he is entitled to be registered as the proprietor of the estate. (2) A person has a defence to any action for the possession of land (in addition to any other defence he may have) if he is entitled under this paragraph to be registered as the proprietor of an estate in the land. (3) Where in an action for possession of land a court determines that a person is entitled to a defence under this paragraph, the court must order the registrar to register him as the proprietor of the estate in relation to which he is entitled under this paragraph to be registered.”

“A right acquired under the Limitation Act 1980 before the coming into force of this Schedule.”

“A right under paragraph 18(1) of Schedule 12.”

“(1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section. (2) A general boundary does not determine the exact line of the boundary. (3) Rules may make provision enabling or requiring the exact line of the boundary of a registered estate to be determined and may, in particular, make provision about— (a) the circumstances in which the exact line of a boundary may or must be determined, (b) how the exact line of a boundary may be determined, (c) procedure in relation to applications for determination, and (d) the recording of the fact of determination in the register or the index maintained under section 68. (4) Rules under this section must provide for applications for determination to be made to the registrar.”

“In substance this is the same as the former rule; but even if that is incorrect, it is not suggested that the revocation of the 1925 rules could have enlarged SLA’s title. Rule 278(2) said in terms that one of the matters left undetermined was how far a boundary ran beyond a hedge, wall or fence. Accordingly in my judgment the registration of SLA as proprietor by reference to a filed plan on which the boundary line followed the Cornish hedge left the position of the precise boundary undetermined. Once the position of the precise boundary had been (retrospectively) determined by the adjudicator and the judge, it could be seen that SLA never had title to the disputed strip. Mr Falkowski’s proposition that SLA has “lost” 1½ acres of land is thus either question begging or wrong. Nor do I accept that there is some limit to the quantity of land that might be encompassed in a boundary dispute. It must depend on all the circumstances and in particular the quantity of land abutting the boundary. A dispute over a strip of land a few centimetres wide but running the whole length of, say, a railway or a canal would plainly be a boundary dispute even if the area involved was many hectares. In Lee v Barrey [1957] Ch. 251 an alteration in the filed plan to move the boundary by 10 feet fell within the scope of the general boundaries rule, even though the whole frontage of the plot in question was only 42 feet. On the other hand an alteration in the proprietorship of a small strip of land registered under a separate title may well fall outside the scope of the general boundaries rule. In truth whether a change is “appreciable” must depend on all the circumstances; and I can see no objection to the ratio between the quantity of land at issue and the quantity of land remaining being a relevant consideration. Mr Falkowski suggested that the approach might be different if the contest is between two physical features, as opposed to a contest between a physical feature on the one hand and an imaginary line on the other. I do not accept that there is any difference in principle. If parties were to dispute whether the boundary was a hedge as opposed to a ditch; or whether the boundary did or did not include a road, the dispute would still be a boundary dispute.”

“The general boundaries rule means that removal of land from a title plan does not necessarily remove any land from the registered title. Land within the scope of the general boundaries rule may be outside the registered title though within the red edging (or, equally, within the registered title though outside the red edging). Where it would be a mistake for land within the scope of the general rule to be in the registered title, then the registered title will be treated as not extending to this land. So, in Drake v Fripp [2011] EWCA Civ 1279, Lewison LJ stated (at [20]) that the registration of the proprietor “left the position of the precise boundary undetermined. Once the position of the precise boundary had been (retrospectively) determined by the adjudicator and the judge, it could be seen that [the proprietor] never had title to the disputed strip. [Counsel’s] proposition that [the proprietor] has ‘lost’ 1½ acres of land is thus either question begging or wrong.”

“Where a squatter claims that, before the title to the land in dispute was registered in the name of a person with the paper title, the squatter had already acquired title to it by adverse possession, his claim may not fall under Sch 12, para 18 of the 2002 Act.”

“On the facts as they appeared in the case of Chowood Ltd v Lyall (and the findings of fact in that case are by agreement to be treated as binding between the present parties), Lyall was in possession of the strip when Chowood's title was registered, and, of course, also when the Land Registration Act, 1925, came into force, and also immediately before and at the date of the rectification of the register. Further, that possession was, at each of those dates, protected against any claim by Chowood to enter upon it, the protection flowing from the fact, established by Lyall in the former litigation, that Lyall and her predecessors had had possession for such length of time as would be an answer under the Limitation Acts to any such claim by Chowood. It appears to me to follow that Lyall's rights were accordingly rights acquired under the Limitation Acts. It was suggested that the words "subject to the provisions of this Act" affect the matter. I cannot see why. The reference seems to be to s. 75, which contains very special provisions which prevent rights acquired under the Limitation Acts from operating under certain circumstances to extinguish the estate of the registered proprietor. This does not seem to have any operation upon the position in the case with which I am now dealing. It was further suggested that Lyall's title depended to some extent on what was called a paper title, and not solely on the Limitation Acts. I do not say what the position might have been if Lyall's paper title had disclosed, for example, a grant to her by Ralli's predecessor in title which could be used to defeat Chowood's claim to the strip without recourse to the Statute of Limitations. Such a case can be dealt with when it arises. In the present case Lyall's paper title was of value simply as some evidence of length of possession, and had no other operation; the paper title, save in so far as it supported a plea of possession for the statutory period, would not have helped to defeat Chowood's claim. It results from this that Chowood's title was all along subject to the rights which Lyall has succeeded in establishing; and the loss, if it may properly be so called, which Chowood has suffered is that they have not got, and since the Act of 1925 came into force (whatever may have been the position before) have never had title to the strip, except subject to an overriding right in Lyall. That loss was occasioned by Chowood failing to ascertain that, when they bought, Lyall was in possession, and in possession under such circumstances that Ralli could not make a title to the strip. The loss was occasioned by paying Ralli for a strip to which Ralli could not make title. The rectification of the register merely recognized the existing position, and put Chowood in no worse a position than they were in before.”

“19. The second class of case is where a person was registered with title to an estate, but some of the land on the boundary of that estate had previously been extinguished by adverse possession under the limitation acts. In that case, the proprietor should have been registered as the estate-holder. But the operation of the general boundaries rule meant that registration was not conclusive as to where the boundaries of the registered estate were located. In such a case, there would be no need to apply for rectification of the register, or to rely on having an overriding interest. In the event of a dispute, the adverse possessor’s remedy would be to apply for the boundary to be fixed under rule 276 of the Land Registration Rules 1925 so as to reflect the actual limits of the registered estate, leaving the adverse possessor’s title to the land unaffected by first registration. The general boundaries rule introduced by the 1925 Act was therefore of vital importance, taking the ‘edge’ off the conclusiveness of registration and leaving the precise location of a boundary to be determined elsehow. 20. In a boundaries case, then, where a person was rightly registered as the estate-holder to a piece of land and where title to some land on the boundary had previously been extinguished by adverse possession, the effect of first registration was not to revest title in the registered proprietor or to take away the adverse possessor’s title under the limitation acts. Unless a boundary had been fixed, the estate-holder could only convey a registered estate in a piece of land the precise extent of which could only be determined by looking ‘underneath’ the register.”

“(1) The Claimants extinguished the paper title to the land south of the fence under the 1980 Act prior to the first registration of Brook Barn. (2) The first registration of Brook Barn under the 1925 Act did not vest any title to the disputed land in the Defendant’s predecessor, because of the operation of the general boundaries rule. The Claimants’ rights would, in any event, have overridden first registration. (3) The coming into force of the 2002 Act on 13th October 2002 left the position unchanged. Since the boundary to Brook Barn was an undetermined boundary, the fact of the Defendant’s predecessor being registered was conclusive as to their title to Brook Barn, but not to the extent of the land included within that title. (4) The subsequent dispositions of the title to Brook Barn operated to convey only the land forming part of that estate, being the interest under the disposition. That land did not include any land to the south of the Fence. (5) The Defendant does not by virtue of the 2002 Act have any title to the disputed land. If she applied for a determination of the boundary so as to include it, theClaimants would have a complete defence to that application. It is they who have title to the disputed land by virtue of having obtained it under the 1980 Act before Brook Barn was registered. (6) The Claimants are therefore entitled to be registered as the proprietors of the land up to the Fence and to have the boundary to their properties determined under section 60 to the 2002 Act to reflect that.”