Robert Atkinson & Ors v Richard Browne & Ors [2025] EWHC 1448 (Ch)

[2025] EWHC 1448 (Ch)

IN THE HIGH COURT OF JUSTICE PT-2021- 000155

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

PROPERTY TRUSTS AND PROBATE LIST (ChD)

Venue Rolls Building, Fetter Lane,

London, EC4A 1NL

Date 13 June 2025

Before

MR STEVEN GASZTOWICZ KC

SITTING AS A DEPUTY HIGH COURT JUDGE

Between

ROBERT ATKINSONClaimants

PHILIPPA ATKINSONClaimant

GRANT BREMERClaimant

JULIE BREMERClaimant

RICHARD BROWNEDefendants

SUZANNE JARVISDefendant

DEREK CRIBBDefendant

Christopher Coyle (instructed by Tollers LLP) for Claimants

Jonathan Wills and Sophie Gibson (instructed by W Davies and Son Limited) for Defendants

Hearing Hearing dates: 11 – 15 November 2024 and 25 - 27 February 2025

Further written submissions completed: 11 March 2025

and additional authorities provided on 18 March 2025

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

MR STEVEN GASZTOWICZ KC:

[1]The First and Second Claimants are the owners of Upper House, Cleardown, on the Hockering Estate in Woking, Surrey (‘the Estate’). The Third and Fourth Claimants are the owners of Holly Tree House, Knowl Hill, on the same Estate. Altogether there are 95 properties on the Estate.

[2]The First Defendant is the Chairman of the Hockering Residents’ Association (which I shall refer to as ‘the Association’) and is sued on his own behalf and on behalf of all the members of the Association’s Committee. The Second Defendant is sued as the personal representative of Lionel Blackman deceased, a previous Trustee at relevant times. The Third Defendant was also such a Trustee and is sued on his own behalf and on behalf of all purported Trustees of the Association.

[3]The Association was the successor to the ‘Hockering Residents’ Committee’ (the ‘HRC’) as it was known until 1986 when the Association was formed to take over from it, with a formal constitution being adopted. An amended constitution was adopted in 2004. It was further amended in 2023, although that was after the issue of the current action in 2021.

[4]Upper House immediately adjoins the road on the Estate known as Cleardown, and Holly Tree House adjoins the road on the Estate known as Knowl Hill. It is not in dispute that neither of the roads are public highways.

[5]The Trustees of the Association are currently registered at HM Land Registry with title to the roads. Possessory title based on adverse possession was registered on 6 April 1987 (following an application made on 3 April 1987) and converted to title absolute on 7 May 1999. The Dispute

[6]A dispute has arisen between the Claimants and the Committee of the Association relating to a number of matters concerning the management of the Estate. This follows the denial initially of requests made by the First and Second Claimants to have an in-out drive, incorporating a second entrance from the road, at Upper House (though that has since been allowed by the Committee), and works carried out by the Association to the verge outside Holly Tree House.

[7]The dispute between the parties runs wider than just the works or intended works which gave rise to it.

[8]The areas of dispute fall into two broad categories.

[9]First, the Claimants seek to establish that the Association, thorough its Committee and any trustees, do not have the benefit of restrictive covenants relating to properties on the Estate (and so are also unable to give any permissions under them), are unable to enforce them against them contractually pursuant to the Association’s Constitution, and cannot take restrictive covenants referred to in the registers of title of their properties into account in deciding whether to grant permissions for works to those properties.

[10]Second, they contend that the Trustees have been wrongly registered as proprietors of the roadways, by reason of mistake, and seek rectification of the Land Register to remove the registration.

[11]This is by way of brief summary and the totality and details of the claims and the relief sought can be seen from the Re-Amended Particulars of Claim in the action.

[12]The Defendants dispute these contentions. The Issues for this Trial

[13]In relation to liability, Mr Andrew de Mestre KC sitting as a Deputy High Court Judge on 11 October 2024 directed that there should be an initial trial of distinct issues which could proceed without hearing live evidence. It is with that (which has been called ‘Trial I’) that I am concerned.

[14]The issues in this present trial are by para 6 of the order limited to the following issues:(i) Whether the Claimants’ contentions at paragraphs 29 to 42A of their Re-Amended Particulars of Claim are correct;

(ii) Whether the Claimants are entitled to a declaration or declarations in the terms pleaded at paras 5 and 6 of the prayer of their Re Amended Particulars of Claim - Without reciting all the relevant paras of the Re-Amended Particulars of Claim, (i) and (ii) above go together, and the declarations sought at paragraphs 5 and 6 of the prayer are as follows:

“5) That neither the Association, nor its Committee or Trustees, can claim the benefit of, enforce, vary, waive, release, or provide consent under any restrictive covenants recorded on the titles in respect of either both Upper House and/or Holly Tree House because no Building Scheme exists; no chain of assignments of the benefit of the restrictive covenants is shown to exist in the Defendants’ favour, and, the restrictive covenants are not, as a matter of law, annexed to any land of the Defendants (even assuming the first registrations of title in the Trustees’ favour in 1987 and 2004 were not mistaken). 6) That none of the Defendants are entitled to enforce any such restrictive covenants as referred to in prayer (5) above pursuant to a contract, (whether by virtue of clauses 2(a) and/or 3(f) of the Constitution of the Association, or otherwise).” (iii) Whether the Claimants’ contentions at paragraphs 43 to 54B of their Re Amended Particulars of Claim are correct (save for the question of what if any remedy should be ordered in respect of any amendment to any register of title, which shall form part of a subsequent portion of this split trial); (iv) Whether the Claimants are entitled to a declaration in the terms pleaded at paragraph 4(a) of the prayer of their Re-Amended Particulars of Claim - Again, these go together and, without reciting all the relevant paras, the declaration sought at paragraph 4(a) of the prayer is that: “the ….. registers of title under which the roadways and bellmouths on the Estate are currently registered, were registered: (a) As a result of mistake the applicants in each instance being unable to satisfy the requirements for the acquisition or the holding of possessory title…” (v) Whether any such mistake further to (iii) and (iv) above occurred as a result of the lack of proper care or substantial contribution of those involved in the applications for possessory title in each instance within the meaning of Schedule 4 para 3(2)(a) of the Land Registration Act 2002 - In relation to this question, I suggested at the start of this trial that, in so far as it remained relevant, this may be better dealt with in Trial II, with which there was no disagreement by counsel. My thinking was that it could conceivably involve oral evidence (though I have made no detailed enquiry into this) and that the time for Trial I was in any event limited. I was right as to the time required aside from this, as Trial I, which has involved submissions on a large number of legal issues, has taken a total of 8 days in all, as opposed to the envisaged 5 days, with further written submissions on behalf of the parties even then following. For the reasons I have given, I decided this issue should not form part of Trial I. (vi) Whether the Defendants’ contentions at paragraphs 15 to 18, 40, and 57 of their Amended Defence are correct. - Paragraph 15 of the Amended Defence contends that, “By reason of clause 2(a) and 3(g) of the 2004 Constitution, relevant development to the Claimants’ properties may not take place without the approval of the Association and applications for such approval must be determined with regard to such covenants as have affected those properties and others on the Estate relevant to the Estate’s residential character, amenities and privacy since 1913”

. In the Claimants’ Amended Reply, it is in paragraph 10(b) “denied that any application for approval, under clause 3(g), whether in conjunction with clause 2(a) or otherwise, provides for or otherwisepermits consideration of the covenants affecting relevant properties or land on the Estate”. Mr Wills, for the Defendants, accepted at trial that under the clauses it would only be where the requirements in covenants are relevant to the preservation of the character, amenities and privacy of the Estate in its current context that determinations were to be made having regard to them. - Paragraph 16 of the Amended Defence and paragraph 17 (which is repeated by para 40) allege that, “16. Both the title to Upper House and the title to Holly Tree House are burdened by such covenants of which the Claimants will have become aware when they purchased their respective properties, in the case of the First and Second Claimants 25th January 2012, and in the case of the Third and Fourth Claimants 26th June 2015. 17. In the premises: 17.1 The Claimants are bound by the restrictive covenants registered against their title. 17.2 By virtue of clauses 2(a) and 3(f) of the Constitution the Association may enforce the covenants against the Claimants.” In paragraph 18, it is said that, “18. The residents of the Estate may also be able to enforce the covenants directly against each other under the rules relating to 'building schemes'. That question is not directly in issue in this claim and the Defendants and Trustees reserve their position in this regard.” It was, however, accepted on behalf of the Defendants at trial that there was nothing to show that a building scheme existed.

[15]It is to be emphasised that the action and the matters for decision in it are, the parties agreed, confined solely to the Claimants and it is only declarations in relation to their specific position that the action concerns. A: Issues relating to the Covenants The Covenants

[16]In respect of Holly Tree House there are three relevant sets of restrictive covenants registered in the Charges Register of the Land Registry title relating to it.

[17]These are shown to be contained in deeds of(1) 19th December 1911,

(2) 19th August 1960, on

(3) 14th May 1964.

[18]Details of the restrictive covenants contained in the conveyances of(1) 19th December 1911 and

(2) 19th August 1960 are set out in the Schedule of Restrictive Covenants in the Land Register.

[19]Details of the covenants contained in (3) the transfer deed of 14th May 1964 are set out in the transfer itself, a copy of which is filed at the Land Registry and is before the court.

[20]In respect of Upper House there are two relevant sets of covenants: the first in a conveyance of 20th June 1922, and the second in a deed of 18th April 1967.

[21]Details of the covenants are set out in the Land Registry entries and the 1922 covenant and 1967 deed are also before the court.

[22]In relation to neither property is it necessary to recite the details here, but suffice to say that they are all amount to covenants restrictive of the land they relate to. Relevant Legal Rules Relating to the Enforceability of Restrictive Covenants

[23]In order for restrictive covenants to be enforceable by successors in title, they must, as is now trite law, be annexed to the land in the sense that term is used in the law of restrictive covenants, unless there is a building scheme, or a chain of assignments.

[24]In the present action, no such building scheme or chain of assignments is relied on by the Defendants.

[25]The question therefore becomes whether there has been an effective annexation to benefited land, so that the subsequent owner of that benefited land is able to enforce them.

[26]If there has been, then the subsequent owner is able to enforce the covenants so long as they are able to show that they own land to which the benefit was annexed: see LCC v Allen

[1914] 3 KB 642

. The next question therefore becomes whether the Association is such an owner. Direct Enforcability of the Covenants

[27]The Claimants contend that the Defendants/the Association they represent cannot enforce the covenants themselves as a matter of land law.

[28]In relation to Holly Tree House:

[29]The covenant in the 19 December 1911 deed provided that it was made “with the Countess her heirs and assigns the owner or owners for the time being of the lands adjoining or adjacent to the hereditaments hereby assured now vested in the Countess”. Such hereditaments would probably have been ascertainable at the time by reference to external evidence.

[30]Whilst it is contended that the words “heirs and assigns” were not sufficient to annex the benefit of the covenant to the retained land, this is by no means clear. Not just the words “heirs and assigns” are used but the whole of the words “her heirs and assigns the owner or owners of the time being of the lands adjoining or adjacent to the hereditaments hereby assured now vested in the Countess” must be considered and this appears to cover assigns of the land referred to and to be intended to enure to the benefit of successors in title. Whilst, as shown by such cases as Renals v Cowlishaw

[1879] 11 Ch D 866

and Reid v Bickerstaff

[1909] 2 Ch 305

, referred to at p598 of J Sainsbury plc v Enfield LBC

[1989] 1 WLR 590

the words “heirs and assigns” in themselves are not sufficient to effect annexation, the words used here go beyond that and would arguably do.

[31]However, it is said by the Claimants that Walter George Tarrant (‘Tarrant’) bought all the remaining land of the Countess on 19 December 1911 so that the benefit of the covenants merged by reason of unity of seisin.

[32]Mr Wills, for the Defendants, does not seek to dispute this and accepted that the Association does not own any land benefited by the 1911 deed.

[33]The covenant in the1960 conveyance, as recorded on the land Registry Title (which is all that is available) did not relate to identified, or any, land of the covenantee that was intended to be benefited, as is required for annexation and enforcement of the covenants as successors in title by that route.

[34]Following the Claimants’ counsel, Mr Coyle, taking the court carefully through the relevant deeds, the Defendants, through counsel, now accept that they are not on any view the owners of any land benefited by the covenants in the 1911 or 1960 deeds relating to Holly Tree House, and cannot therefore directly enforce them as successors in title to the original covenantees.

[35]In relation to Upper House:

[36]The restrictive covenants in the 1922 deed relating to it (which are set out in entries 1 to 9 to the Schedule of Restrictive Covenants in the Land Registry Title) were made with the Vendor alone (not with successors in title) and were not expressed to be for the benefit of any land, let alone any identified land, of the vendor, as is trite law, required for annexation, as I have said.

[37]The 1967 deed was made between three committee members (of the Hockering Residents Committee), who it is clear from its recitals were contracting as such committee members, and Brustgols Developments Ltd as the then owner of Holly Tree House. The restrictive covenants in the 1967 deed were said to be made “for the benefit and protection of the Owners and occupiers of adjoining and neighbouring lands on the …Hockering Estates and each and every part thereof”.

[38]In order for there to be annexation, a restrictive covenant must be for the benefit of land held by the covenantee.

[39]Although not made clear by the conveyance itself, it is apparent (and would probably have been ascertainable at the time) that the three committee members were then the owners of what are shown on the plan at page 727 of the trial bundle as numbers 57, 89 and 90 which have varying degrees of closeness to Upper House.

[40]Mr Wills has not sought to enter into the argument as to whether individual house owners could or could not enforce particular individual covenants contained in particular deeds, which include this one. The individual owners of properties such as 57, 89 and 90 that I have referred to are not before the court as Defendants, or otherwise, and have no opportunity of arguing the matter. I do not need for present purposes to decide whether they as the current individual owners of the properties in question could enforce the covenants and it would be inappropriate to do so. As will shortly be seen, that makes no difference to my ultimate decision in this case. Mr Wills for the Defendants accepts, following counsel for the Claimants having gone through the deeds and relevant history, that the Association itself did and does not own any land benefited by the covenants in the 1960 deed and cannot itself enforce them.

[41]That just leaves for consideration in relation to such direct enforcement by the Association the covenants contained in the 1964 deed relating to Holly Tree House.

[42]That deed involved a transfer of the property now known as Holly Tree House - which was at the time called Evendon House - from Wilson Lovatt & Sons Limited (as Transferor) to Evelyn Janet French (as Transferee).

[43]Lovatt, as I shall call the company, had in the early 1960s developed ‘the White Ladies Estate’ - part of which, including Evendon/Holly Tree House - is now within the Hockering Estate. A plan of the White Ladies Estate is contained within the 1964 conveyance and shows Holly Tree House, being conveyed by it, marked by measurements and with a heavy red line separating it from the road (Knowl Hill), as well as other plots.

[44]The 14 May 1964 deed provided that, “the Transferee for the benefit of the Transferor’s adjoining land and every part thereof and so as to bind so far as practicable the land hereby transferred into whose-soever hands the same may come hereby covenants with the Transferor that she and her successors in title will henceforth and at all times hereafter observe and perform the covenants and stipulations set out in the Third Schedule hereto”.

[45]The Third Schedule contained restrictive covenants as there set out.

[46]In the light of the covenants being taken “for the benefit of the Transferor’s adjoining land” it seems likely that the Transferor (Lovatt) owned such land at the time of the deed.

[47]As Mr Coyle, for the Claimants, demonstrated at trial, and as was accepted by the Defendants, the residential plots of land held by Lovatt adjoining Holly Tree House had, however, already by then been sold off by Lovatt, so it had no adjoining land in the form of those plots capable of benefiting from the covenants when they were entered into.

[48]Accordingly, if just looking to the residential plots, it is accepted by Mr Wills, as it must be, that there was no land of the Transferor (Lovatt) which was benefited by the covenants.

[49]That would mean the Transferor was talking nonsense in referring in the deed to the covenants being for the benefit of his adjoining land, of which there was none.

[50]It is also to be noted that para (b) of the First Schedule gave the right for the Transferee and her successors in title to use the sewers, drains and pipes, etc laid in or over the adjoining land of the Transferee, to which the same point would apply.

[51]However, it seems unlikely the Transferor was talking nonsense and the residential plots are not the only land to be considered.

[52]The Transferor by reference to the First Schedule para (a) of the deed passed a right of way to the Transferee and her successors in title, tenants, occupiers, servants and visitors to pass over “the entire extent of the... Road known as Knowl Hill”.

[53]It is possible therefore that the roads could theoretically be its adjacent land referred to by the Transferor as intended to be benefited, notwithstanding this did not refer to “the roads” (although if so, these might have been expected to be specified) but to “land” (which could still have meant them).

[54]However, whilst the fact that the Transfer transferred Holly Tree House together with a right of way over the Knowl Hill is consistent with the Transferor having owned the road at the time, it would also be consistent with it having a right of way over it which it was passing on.

[55]A letter dated 25 April 1960 from solicitors for the intending purchaser of White Ladies (on which the White Ladies Estate was subsequently developed), assumed to be Lovatt, to the HRC was produced during the course of the trial (which, although not in the trial bundle, had been disclosed at the appropriate time). This refers to White Ladies being sold “with a right of way over Knowl Hill” and another road, and asking about the “rights of the frontagers over these roads”.

[56]Matters are not certain because the conveyance to Lovatt is not available and the position could conceivably have changed, but this suggests Lovatt may well have had the benefit of an express right of way over the Knowl Hill (which would be inconsistent with it owning the road) which it passed on to the purchaser of Holly Tree House from it, as opposed to having owned the road.

[57]A letter dated 25 April 1962 from Lovatt’s solicitors to the HRC’s solicitors said that “Counsel takes the view that in fact our client company already has a title to the grass verge and to one half of Knowl hill up to the centre line and that the acts of maintenance carried out by your Clients have not been sufficient to rebut the original presumption in favour of our Clients predecessors in title”.

[58]This appears to be based on Lovatt having ownership of just half the road by reason of the presumption ad medium filum, as owner of the adjoining plots rather than by an express transfer of the (whole) road, which it seems unlikely it would be referring to simply as its ‘retained land’ in the 1964 conveyance, and without making expressly clear that such presumed title was not being passed on to the purchaser. Furthermore, this was merely reported as the view of counsel, acting for one party, on the position in 1962, based on whatever was before him and considered, which is unknown.

[59]The question arises as to what, if it was not the Knowl Hill road that was the ‘adjacent’ land of the Transferor that was being referred to in the 1964 deed, what it was then, if there was such land.

[60]‘Adjacent’ does not necessarily mean ‘immediately next to’. See, for example, Cave v Horsell

[1912] 3 KB 533

at p544, where Buckley LJ (with whom Fletcher Moulton LJ expressly agreed) said, “‘Adjacent’ conveys that which lies ‘near to’ rather than that which lies ‘next to’ ”, and distinguished it from the expression ‘next adjoining’ or ‘immediately adjoining’. There are other cases where the context and surrounding circumstances have led to the conclusion that ‘adjoining’ meant physically next to, but there is little to work off here in terms of what was being referred to.

[61]It is possible that there may be annexation to benefited land by it being easily ascertainable by the words used in a deed (such as ‘land of the Transferor immediately adjoining’) combined with extrinsic evidence readily available at the time of the deed, as to the identity of the of the Transferor then immediately adjoining: see Crest Nicholson Residential (South) Ltd v McAllister

[2004] 1 WLR 2409

at para 45 and Bath Rugby Ltd v Greenwood

[2023] P&CR 6

at para 80. The land intended to be benefited here may well have been known on the ground at the time so as to be within this.

[62]However, if, in the course of time, it becomes impossible for a person claiming to have the benefit of a covenant to show what the land was that was intended to be benefited, which is that now held by them, that will mean they are not able to enforce it for that reason: see in relation to this, para 81 of Bath Rugby. Even on the basis the Association now has title to the roads by adverse possession (as to which see below), it is not possible now to show that this was the land intended to be benefited referred to in the 1964 deed.

[63]Accordingly, the Association will in my judgment be unable as successor in title to enforce the restrictive covenants in the deed. The Contractual Position in relation to the Covenants

[64]The Claimants secondly contend that if there is no-one who is able to enforce the covenants, they cannot ‘affect’ the properties as referred to in clause 2 of the Constitution which sets out the Objects of the Association.

[65]The Claimants accept the Constitution of the Association is contractually binding between themselves and the Association, as do the Defendants, who rely on it.

[66]The First and Second Claimants bought Upper House in 2012. The Third and Fourth Claimants bought Holy Tree House in 2015. Accordingly, the 2004 Constitution (which I shall refer to as ‘the Constitution’) was that which was in force at the time. Each of them became, and remain, members of the Association, subject to it. It remained in place at the time the action was issued, and which is therefore referred to in the pleadings. The same provisions I shall refer to in it are also contained in the current, 2023, version, but it was agreed at trial to be convenient to refer to the 2004 Constitution for present purposes.

[67]The Constitution sets out the Association’s Objects in clause 2, the first of which is, “(a) To preserve and maintain the residential character and the amenities and privacy of the Hockering Estate (the Estate), Woking, Surrey, (which comprises the land and properties fronting Hockering Road, Cleardown, Danes Hill” and Knowl Hill and the roads, paths and verges thereof) in accordance with the covenants affecting the individual properties in the like manner as the same have been preserved since 1913”.

[68]Clause 3(g), in so far as relevant for present purposes, provides that, “Members shall submit to the Committee, via the Chairman, for consideration, comment and if acceptable in the interests of the Association and its members, approval of:(i) The plans of any new building or alteration to an existing building or its appurtenances which may affect its external appearance; and

(ii) ………… No building, alterations, lopping or felling to which this clause 3.(g) applies shall be carried out before the approval of the Committee has been granted. In considering applications the Committee shall have regard to any detriment to the character and appearance of the Estate or any part of it and the impact on any adjoining or neighbouring properties”.

[69]The Claimants accept that para 3(g) of the Constitution means that none of the work referred to there should be carried out by members of the Association without the approval of the committee being given to plans and proposals submitted.

[70]They also accept, and indeed aver, that the provision in clause 3(g) that “In considering applications the Committee shall have regard to any detriment to the character and appearance of the Estate and any part of it and the impact on any adjoining or neighbouring properties” must be read in conjunction with clause 2(a), which provides that an Object of the Association is to “preserve and maintain the residential character and the amenities and privacy of the Hockering Estate …in accordance with the covenants affecting the individual properties in the like manner as the same have been preserved and maintained since 1913”.

[71]The Claimants submit that:(1) the relevant clauses in the Constitution contain no obligation by members to abide by any covenants that may affect their properties;

(2) there is no reference in the Constitution, to the Association having power to enforce the covenants; and

(3) In the Objects clause at 2(a) of the Constitution, covenants “affecting” a property means a property’s covenants which are enforceable - that is to say, if a covenant is unenforceable it does not affect the property so that the Committee can have regard to it on an application under it for permission to carry out works.

[72]Submissions(1) and

(2) are correct, so far as they go. The Constitution does not contain any obligation for the Claimants to abide by the covenants as such and does not as such give the Association the power to enforce the covenants themselves.

[73]However, that is not an end of the matter. The more difficult question is that raised by submission (3) above.

[74]The Claimants’ submission is that clause 3(g) must be read in conjunction with the clause 2(a) objects of the Association and where covenants, although registered against the title of a property at the Land Registry, are unenforceable they cannot properly be said to “affect” the property in question as referred to in clause 2(a), and so should not be taken into account.

[75]It is pointed out that the committee cannot, just by honestly considering it has power, give itself power to do things if not actually authorised by the Constitution: see Lee v Showman’s Guild [1952]2 QB 329 at p344.

[76]At the same time, however, as Megarry J (as he then was) said in Re GKN Bolts and Nuts Ltd (Automotive Division) Birmingham Works Sport and Sports Club

[1982] 1 WLR 774

at p574, there commonly being in club cases many obscurities and uncertainties, and some difficulty in the law, “In such cases, the court usually has to take a broad sword to the problems, and eschew an unduly meticulous examination of the rules and resolutions. I am not, of course, saying that these should be ignored; but usually there is a considerable degree of informality in the conduct of the affairs of such clubs, and I think that the courts have to be ready to allow general concepts of reasonableness, fairness and common sense to be given more than their usual weight when confronted by claims to the contrary which appear to be based on any strict interpretation and rigid application of the letter of the rules. In other words, allowance must be made for some play in the joints”.

[77]This aspect of the case turns on what is meant in the Constitution - as a contractual document – by “covenants affecting” properties.

[78]This falls to be construed by reference to well-known principles in relation to the interpretation of a contract. These have been set out in general terms in a number of modern cases including Investors Compensation Scheme v West Bromwich Building Society

[1998] 1 WLR 896

, Bank of Credit and Commerce International SA (in Compulsory Liquidation) v. Ali Others

[2002] 1 AC 251

, Chartbrook Ltd v Persimmon Homes Ltd

[2009] 1 AC 1101

, Rainy Sky SA v Kookmin Bank

[2011] 1 WLR 2900

, Arnold v Britton

[2015] AC 1619

and Wood v Capita Insurance Services

[2017] AC 1173

[79]As part of the process, when, more specifically, looking at the rules of an association, such as the Constitution is agreed to comprise, the words of Megarry J in GKN above also have to be borne in mind.

[80]In Bank of Credit and Commerce International SA (in Compulsory Liquidation) v. Ali Others

[2002] 1 AC 251

, Nicholls LJ pointed out at para 26 that, "The meaning to be given to the words used in a contract is the meaning which ought reasonably to be ascribed to those words having due regard to the purpose of the contract and the circumstances in which the contract was made”.

[81]In Chartbrook Ltd v Persimmon Homes Ltd

[2009] 1 AC 1101

Lord Hoffmann said at para 14 that, “In summary, the court is concerned to identify the intention of the parties by reference to what a reasonable person, having all the background knowledge which would have been available to the parties, would have understood them to be using the language in the contract to mean”.

[82]As was pointed out in the most recent Supreme Court case, Wood v Capita Insurance Services

[2017] AC 1173

at para 10, ascertaining the meaning of the language used is not a literalist exercise focusing on the parsing of the wording of a particular clause but requires consideration of the contract as a whole.

[83]Mr Coyle points out that section 84(1) of the Law of Property Act 1925 gives the Upper Tribunal (Lands Chamber) power “on the application of any person affected by any restriction arising under covenant… by order …to discharge or modify any such restriction” and that it was made clear by Upjohn LJ in Re Purkiss Application

[1962] 1 WLR 902

at p911 (cited with approval relatively recently in Doberman v Watson

[2017] 4 WLR 1708

(Ch)) that, “all orders under sub-section (1) are made on the footing that the restrictions contained in the deed under review are enforceable by some one or more persons, for only in those circumstances is there anything to modify or any jurisdiction in the tribunal to modify”. In other words, he submits that if a covenant is not enforceable it does not affect property or therefore the owner of it.

[84]However, the court is not here concerned with any technical meaning of “affected” in section 84(1) of the 1925 Act, but with what the words in the Objects clause in question were intended to mean, having regard to the purpose of the contract and the circumstances in which it came into being.

[85]Were it to have been intended that the Committee must only there have regard to covenants registered against the Estate’s various properties which are enforceable by someone, this would have imposed a considerable, and indeed almost impossible, burden on it when considering applications.

[86]The Committee would have to investigate whether, despite the apparent applicability of the covenants to properties by reason of the covenants being registered against the title of the properties (in the case of registered land) or under the Local Land Charges Act 1975 (in the case of post-1925 Act covenants relating to unregistered land) or deed (in the case of pre-1925 Act covenants relating to unregistered land, subject to non-statutory notice requirements), there was no one who could in fact enforce them - whether because they had not been properly annexed to the land in accordance with the technical requirements of property law to enable successors in title to be bound by them, or whether because adjoining land benefited by them could not at the time of the covenant, or now, be identified, whether there was or was not in any given case a chain of express assignments, whether any benefit had been lost, for example, by unity of seisin during the history of the burdened and benefited land, and so on.

[87]The matters I have set out in paras 28 to 64 above illustrate some of the difficulties by reference to the present case.

[88]In my judgment, this is not what can have been intended.

[89]Applying the principles of interpretation I have referred to above, in my judgment the proper interpretation of clause 2(a) of the Constitution is that the object of preserving and maintaining the amenities and privacy of the Estate in accordance with the “covenants affecting the individual properties” is to be read in effect as meaning “in accordance with the covenants imposed on the individual properties” in the same way, and to the extent, that not doing things contrary to them have maintained the residential character, amenities and privacy of the Estate since 1913.

[90]I would add that in a lay sense at least, covenants which remain registered as charges on the title of a property can be said in fact to affect it (even if on an issue arising investigations establish that no-one may actually be able to enforce them) in that prospective purchasers (not being certain whether there is anyone able to enforce them or not) are likely to take the risk of possible enforcement of them, of whatever perceived magnitude, and the need for any indemnity insurance, into account in deciding whether or not to purchase a property.

[91]This does not mean that the Estate is to be set in stone and kept as it was at the time of any covenants being entered into. Things prohibited on the face of covenants will have occurred on properties on the Estate since then, having been permitted or otherwise, and times will have changed. Clause 3(g) provides that in considering applications to build or alter buildings the Committee is to have regard to any detriment to the current character and appearance of the Estate or any current impact on adjoining or neighbouring properties. This is consistent with the object being to preserve and maintain the Estate in accordance with the covenants in the way that has in effect led to its character, amenities and privacy being as they now are.

[92]If the restrictions in a covenant imposed on a property, even though not directly enforceable by anyone as a covenant, remain relevant to the preservation of the current residential character, amenities and privacy of the Estate they are to be taken into account by the Committee in deciding whether to approve plans. If, taking this into account, they do not approve them, the applicants can be prevented from carrying the intended works out. This is not because the Committee are enforcing the covenants themselves but because they are applying the provisions of the contractually binding Constitution to this effect. B: Issues relating to Title to the Roadways

[93]The second part of the case for determination in this trial is:(i) Whether the (alleged) Trustees of the Association were mistakenly registered with possessory title to the roadways on the Estate by HM Land Registry in 1987;

(ii) if so, whether the Cs predecessors in title would in fact be the true freehold owners of the roadways outside their properties up to the middle of on Cleardown and Knowl Hill respectively, based on the ad medium filum viae presumption or the general boundary rules.

[94]As I have indicated, the application for possessory title that was successful (there having been an earlier one in 1965 which did not proceed) was filed at HM Land Registry on 3 April 1987. The Land Registry was satisfied on the basis of it that Possessory Title should be registered in favour of the Association’s trustees to hold on its behalf, which occurred on 6 April 1987 and this was converted to title absolute on 7 May 1999.

[95]The 1986 constitution was at that time in place.

[96]It contained at clause 7 provision for the appointment of trustees and para (d) of it provided that, “There shall be vested in the Trustees all property of the Association other than monies in an account at a bank or Building Society, or cash, which shall be under the control of the Committee”.

[97]The application for possessory title was made following a resolution of the HRA at an AGM held on 19 March 1987 “That the Trustees shall proceed with an application to the Land Registry for a Possessory Title to the roads, footpaths, verges and wastes of the Estate subject to the present rights of way of existing properties on the Hockering Estate”.

[98]The Claimants contend that the owners of Holly Tree House and Upper House had title to the roadways, including the verges, up to the middle of Knowl Hill and Cleardown respectively, in front of their properties, as I have said. That is notwithstanding that they say this is not essential to their case as to why there was mistaken registration in the Association’s purported trustees. Paper title and the ad medium filum viae Presumption

[99]No argument has been advanced by the Claimants in relation to the general boundary rules referred to in para 44C of the Re-Amended Particulars of Claim.

[100]However, the Claimants say that the ad medium filum viae presumption that the purchaser of land owns up to the middle of the width of an adjoining road running alongside it applied to their predecessors in title who originally bought their respective plots, and that the fact that the plans to relevant conveyances did not include any reference to any part of the road being included in the transfers is not fatal to the presumption applying to the purchaser of such a plot.

[101]The Claimants rely in particular on Paton & Anr v Todd

[2012] EWHC 1248 (Ch)

. They submit that there is nothing to show that the first sale of Upper House on Cleardown from Tarrant, a developer, in 1922, and the first sale of Holly Tree House on Knowl Hill from Wilson Lovatt & Sons Ltd (‘Lovatt’), a developer, in 1964, did not convey the roadway [at least] to the middle line in accordance with the presumption.

[102]However, there is difficulty with this argument.

[103]The ad medium filum viae principle is based on what are really two presumptions, as set out by Brightman J (as he then was) in Giles v County Building Contractors (Hertford) Ltd

(1971) 22 P&CR 978

. I shall refer to these shortly.

[104]In the present case, the suggestion is that because the plot of land that is now known as Upper House was transferred by Tarrant to the First and Second Claimants’ predecessors in title in 1922 they are to be taken as having acquired title to half the width of the road alongside it by reason of the ad medium filum viae presumption.

[105]Similarly, it is submitted, in relation to the transfer of Holly Tree House by the 1964 conveyance from Lovatt to the purchaser from him of that plot on his White Ladies Estate, half the road known as Knowl Hill alongside it was by reason of the presumption conveyed with it.

[106]The difficulty in the present case arises as follows.

[107]In relation to Upper House and the road known as Cleardown:(i) if Tarrant did not own the relevant part of the road, and merely had a right of way over it, he could not have passed on title to half the road which he did not own. If he did not own it (by whatever route) there is nothing to suggest that the actual owner of it, when the plot was transferred by Tarrant to the purchaser, intended to transfer it to her or should be presumed to have done so.

(ii) if Tarrant did have ownership of the relevant part of the road, by whatever means, including through the ad medium filum viae presumption, the Claimants submit he must have passed that on to the purchasers of adjoining plots, such as Upper House, when it sold them off. However, that would mean that he could not (without the reservation of a right of way on the sales, of which there was none) then have granted rights of way over those parts of the road to subsequent buyers of his other plots along it.

[108]It is relevant to refer at this point both to Giles and to some other relevant authorities referred to in it.

[109]In Giles, Brightman J at p981 described the two different presumptions relating to half of an adjoining a road being conveyed:

“The plaintiff relied on the presumption that a conveyance of land abutting on a road also transfers the adjoining half of the road. As I understand the law, there are two presumptions relative to the ownership of the soil of a roadway. One presumption operates in certain circumstances when the conveyancing history of the land and the road is unknown. This presumption supplies a fact of which there is no direct evidence, namely, the ownership of the road. The presumption is that the owner of the land abutting on the road is also the owner of the adjoining section of road up to the middle line. There is no room for this presumption when the conveyancing history of the land and the road is known from the time when they were in common ownership as in the case before me. In such a case, there is, in certain circumstances, a totally different presumption which is more in the nature of a canon, of construction that a conveyance of the land includes half the adjacent roadway.”

[110]Brightman J referred to Plumstead Board of Works v. British Land Co. (1874) L.R. 10 QB 16, a case concerning an estate, where Blackburn J found a conveyance of a plot being “carefully marked out, so as not to include any part of Cantwell Road at all and …separated from it by a strong line to be sufficient to rebut the presumption, saying in relation to it that, “it is said to be enough, and always has been held to be enough, when there is anything to shew it was not the intention to convey any part of the road”.

[111]In Beckett v. Corporation of Leeds (1872) L.R. 7 Ch. App. 421 James LJ doubted that the ad medium filum viae presumption applied in the estate context:

“I should myself, if it were necessary to determine it, be very slow to come to the conclusion that where there is a road going through an estate, and a site is granted by the road-side for the erection of a cottage or house, and a cottage or house is built upon that site, the mere conveyance, or grant, or demise of a piece of land as the site of and for the purpose of building a house is, in presumption of law, a grant to the middle of the highroad, the frontage of which is probably the origin of the house being built on that space. It appears to me that a great many inconveniences might arise from the notion that a mere grant or demise of such a site would of itself raise a presumption of law which deprives the owner of the estate of his possessory title or of his freehold in respect of the half of the highway.”

[112]He did not spell out what the “great many inconveniences” might be, but the point I have made in para 108 (ii) above can be regarded as one such.

[113]In Leigh v. Jack (1879) 5 ExD 264 Cotton LJ also doubted the application of the principle to cases where building plots are laid out:

“I decide this case for the reasons which I have already mentioned, but I wish to remark that I think it very questionable whether the presumption can ever be held to extend to those cases, where land is sold in plots for building purposes, even although the roads have been actually laid out.”

[114]Having reviewed the authorities, Brightman J at p986 of Giles stated that, “The conclusion which I draw from the authorities cited to me is that the second presumption, if it applies at all to a conveyance of a plot of land forming part of a building estate by grantor who owns both land and road, is a presumption which readily yields to indications of a contrary intention. In my judgment, the presumption is displaced in the present case. The wording of the 1885 conveyance is not, in my view, significantly different from the wording of the conveyances in the Plumstead case. The change in colour from pink to brown on the plan to the 1885 conveyance seems to me no less persuasive than the strong line to which Blackburn J. referred in the Plumstead case. It would have been so easy to have extended the pink colouring into the roadway on the 1885 plan in place of a small part of the brown colouring had that reflected the intention of the parties. Like Blackburn J, I find difficulty in seeing, unless express negative words were introduced saying that no part of the road should be conveyed, how Mr. Howard could have expressed his intention more plainly. It does not seem to me to make any difference on the facts of the present case that the plot was purchased by Mrs. Penny with a house newly erected thereon as distinct from the purchase of a plot for the purpose of thereafter erecting a house. I do not think that the second presumption has a greater force in the one case than the other. I therefore conclude that the plaintiff has not sufficiently proved his title to any part of the freehold of the terraced roadway.”

[115]It is true that in Plumstead there was a strong line separating the claimant’s plot from the road on the plan with the conveyance (and it appears there were also some measurement set out on it). In Giles the claimant’s house and land, which formed part of a larger estate, were described as having “a frontage to a new road” and as being “more particularly delineated or described in the map or plan drawn in the margin” of the conveyance and “therein coloured pink … together with a … right of way … over and along the said new road ….”. No part of the new road was included in the pink colouring and the road was coloured brown.

[116]However, whilst any two cases are unlikely to be the same in terms of exactly what is said, in the present case the Upper House land is shown coloured pink on the plan to the 1922 conveyance, which is clearly shown to abut but not include any part of the road (Cleardown) and the land sold is described in the conveyance as being “situate on the East side of a road known as Cleardown”, in addition to which a right of way was given “over and upon the entire extent of the said road called Cleardown upon which the said hereditaments abut”.

[117]Furthermore, the Schedule to the conveyance provided that the owner(s) of the land being sold covenanted to “at all times hereafter when required by the vendor pay to him or contribute a share in proportion to his frontage on the Cleardown with the owners of the other houses and land adjoining Cleardown of the expense of maintaining to the satisfaction of the vendor the said road… until the same shall be adopted.”

[118]In my judgment these indications are sufficient to displace the presumption in the present case, if it applies at all, which I doubt.

[119]I would only add, on this issue, the following.

[120]In Paton v Todd Morgan J quoted Megarry J at pp1583H - 1584D in St Edmundsbury v Clark (No 2) as saying that various reasons have been given for the presumption (which he made clear, in quoting at para 32 of Giles could be rebutted by the expressions in the instrument of transfer or surrounding circumstances), including being based on convenience and the prevention of disputes. He added that it may also be based on intention and that “It seems in some degree improbable that a grantor of land should intend to retain for himself an adjoining long strip of land over which there is a public highway or an easement of way”.

[121]This lack of advantage to the transferor and the improbability of retention is something Mr Coyle placed some heavy reliance on, on the basis that retention of the road would be a liability. However, it cannot be said that there was no advantage here, where an estate was laid out by the vendor and the plots all needed to have rights of way over the other parts of the road, which retention of title to it would enable the vendor in each case to grant (and see above in relation to this). Furthermore, achieving adoption of the road by the local authority may well have been easier with the road in one ownership, and made the sale of the plots correspondingly more attractive. Applying the logic of what was said by Megarry J in relation to this aspect in St Edmundsbury does not cause me to alter my view that the presumption cannot be relied on to show title to the owners of Upper House here, but strengthens it.

[122]For the reasons I have given, the ad medium filum viae presumption does not in my judgment assist the First and Second Claimants here in showing either that they have (or that their predecessors in title, after Tarrant, had) title to the road known as Cleardown or in showing that the Association could not have had adverse possession of it.

In the case of Holly Tree House and the road known as Knowl Hill:

[123]The land of Holly Tree House was, when transferred from Lovatt, also a plot on an estate, albeit a small one (the ‘White Ladies Estate’), part of which now forms part of the Hockering Estate, laid out by him. Again, the points at para 108 above apply, as do the authorities referred to in paras 110 - 115 above in relation to estate roads.

[124]It appears from the conveyancing history of various plots that Holly Tree House (initially known as Evendon) was the last of the plots to be sold. However, it seems unlikely on that account to have been treated differently in terms of ownership of the adjoining road from the other plots, all of whose owners required rights of way over that road.

[125]The plan attached to the 1964 Transfer denoting the land transferred was marked with what appears, in the words of Blackburn J in Plumstead, to be a strong line, demarcating it from the adjoining road known as Knowl Hill.

[126]Furthermore, the Transfer was of the land together with “The right for the Transferee and her successors in title her and their tenants occupiers servants and visitors and all other persons having business on the land hereby transferred ….in common with others having a like right at all times to pas and repass … over along and upon the entire extent of the said road known as Knowl Hill”, with no suggestion the Transferee was being passed part of it.

[127]The Transferee at the same time covenanted “for herself and her successors in title …with the Transferor and its successors in title and the members for the time being of the Hockering Residents Committee to pay the rates known as Hockering Rates relating to the upkeep and maintenance of Knowl Hill as fixed by the Hockering Residents in meeting assembled”. This ties in with other evidence that the Residents Committee were maintaining the road.

[128]A letter dated 25 April 1960 from solicitors for the intended purchasers of the land which became the White Ladies Estate to the HRC’s solicitors refers, as I have mentioned in para 55 above, to it “being sold with a right of way over Knowl Hill and Hockering Road”. As I have said, this suggests that Lovatt, when it purchased the land, was not itself acquiring title to Knowl Hill, but merely a right of way over it.

[129]If Lovatt did not itself acquire title to the road - and the limited evidence available suggests that he was not acquiring it by any means but merely a right of way over it - it had no such title to pass on to the purchaser anyway, which in my judgment it did not purport to do.

[130]If Lovatt did on its acquisition of the estate land in 1964 gain title to the land by reason of the ad medium filum viae principle or otherwise, notwithstanding this the indications are that it did not intend to, and did not, pass on the road up to the mid-point by the Transfer of the Holly Tree House Land to the purchaser of it, and for the reasons I have set out in relation to Upper House in paras 109 to 121 above, any ad medium filum viae presumption in favour of the purchaser to Holly Tree House, if it applies at all, which I doubt, has been displaced.

[131]Again for the reasons I have given, the ad medium filum viae presumption does not in my judgment assist the Third and Fourth Claimants here in showing either that they have (or that their predecessors in title, after Lovatt, had) title to the road known as Knowl Hill or in showing that the Association could not have had adverse possession of it. Adverse Possession

[132]Under s15 of the Limitation Act 1980 the limitation period for the recovery of unregistered land is, of course, one of 12 years. Once there has been adverse possession for 12 years or more, the title of the paper owner is extinguished and the adverse possessor becomes the owner, entitled to be registered by HM Land Registry as the proprietor of the land.

[133]It is common ground between the parties that in order for there to be adverse possession there must be both factual possession of the land and an intention to possess. This is trite law, but if authority is required it is to be found in J A Pye (Oxford) Ltd v Graham

[2023] 1 AC 419

[134]In that case, Lord Browne-Wilkinson at para 41 cited with approval the statement of Slade J in Powell v McFarlane

(1977) 38 P&CR 452

at pp470-471, that, “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…The question of what acts constitute a sufficient degree of exclusive control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly use and enjoyed…/Everything must depend on the particular circumstances, but broadly, I think what must be show 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”.

[135]The relevant land in the present case, in relation to which a possessory title (then title absolute) was registered by the Land Registry comprised residential roads including verges.

[136]There is before the court very substantial documentary evidence, in the form of contemporaneous minutes of committee meetings and of members’ meetings, accounts, proposals, and newsletters showing that the HRC was:(i) throughout the period from at least 1963, undertaking the upkeep and maintenance of the Estate roads. This included such things as employing a part time roadman at times to keep the Estate roads and verges tidy; repairing and dressing the roads; repainting white lines; repairing potholes; sanding roads in snow, and from some time prior to 1966 regulating speed on the roads, with speed limit signs.

(ii) from at least 1963, maintaining, and where necessary replacing, gates on the roads, controlling access, and maintaining sign posts and signs.

(iii) from at least 1964 felling trees on the verges along the Estate roads, planting trees on verges and through agents or contractors mowing the grass (and from 1974 spraying certain path grass), and that, as one would expect, these things continued similarly to be done by the HRA when it became the successor to HRC in 1986, up to the date of its application for possessory title (and beyond).

[137]The above is based on contemporaneous evidence which was not challenged by the Claimants, and extends beyond the relevant 12 year period prior to the application for registration of possessory title on 3 April 1987, although the Claimants do not accept the acts were sufficient for adverse possession to be established.

[138]As I have said, at para 41 of Pye, Lord Browne-Wilkinson cited with approval the statement of Slade J in Powell v McFarlane that, “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.”

[139]In Seddon v Smith

(1877) 36 LT 168

at p169, Cockburn CJ. said that: “Enclosure is the strongest possible evidence of adverse possession, but is not indispensable”.

[140]Lord Browne-Wilkinson went on to say in para 42 of Pye that there need not be an intention to own the land in order to be in possession, but merely an intention to possess.

[141]As stated in Powell v McFarlane and Pye, the question what acts constitute a sufficient degree of exclusive physical control must depend in particular on the nature of the land and the manner in which land of that nature is commonly used or enjoyed. The land in question in the present case comprised estate roads including verges. The committee, on behalf of the residents as a whole, did all that an occupying owner might have been expected to do in dealing with it and, on the evidence, no-one else did so. In my judgment, there was clearly factual possession of them by HRC and then, by continuation, the HRA the affairs of each of which were run by a committee.

[142]I am also satisfied the committee on behalf of the residents evinced an intention (and that its members had a common intention) to possess the roads and verges. It is clear from the evidence available that they intended to exclusively control, manage and maintain them and thereby to possess them, as they did, without anyone else being allowed to interfere with that.

[143]The intention to possess the land does not appear to me to be have been equivocal as suggested by the Claimants, and what was done, taken as a whole, appears to me to have gone well beyond the sort of acts that are explicable by reason of individual landowners within the Estate having a right of way over the roads.

[144]Although the committee members will have changed from time to time, these acts were done by the committee acting as such, with the committee members, whoever they were from time to time, acting in their capacity of committee members, and in concert, on behalf of the Association.

[145]Where different persons are in possession sequentially, as successors to each other, each person’s period of occupation can be added together for the purposes of extinguishing the title of the paper owner: see Megarry & Wade, ‘The Law of Real Property’, 10th edition, at para 7-036 and the cases there cited.

[146]There is no reason in principle why this should not apply to successive sets of joint possessors. It is perhaps most easily and commonly seen in the case of possession by a husband and wife or cohabitees immediately followed by another husband and wife or cohabiting couple continuing it. The base principle is that more than one person can, jointly with another – or, it seems to me, others – possess the land, and that, although the individuals may change, successors can continue the possession of those who were in possession earlier.

[147]The Privy Council in Bannerman Town, Millars and John Millars Eleuthera Association v Eleuthera Properties Ltd

[2018] UKPC 27

indicated at para 52 that possession of land may be enjoyed jointly, or vicariously. It was said at para 52 that “The requirement is for a shared or common understanding, sufficient to render multiple occupants of land joint possessors of it. It is quite separate from the general requirement of an intention to possess. Rather, it part of the analysis of possession in fact”.

[148]Here, the committee (the HRC, immediately followed by the committee of the Association), by its members acting jointly, occupied the land on behalf of all the residents on the Estate from time to time, whom they were elected to represent, and it is clear they were maintaining and improving the roadways, including verges, in that capacity. There was a shared and common understanding they were possessing it on this basis.

[149]In the case of a husband and wife or cohabitees they will be jointly registered as proprietors and hold the land on trust for themselves. Where they are members of a committee elected to act on behalf of others and in that capacity adversely possess land, they in my judgment, on the application of principle, hold the land on trust for those others – in this case, the association of residents of the Estate as a whole, who, as a body elected them and in whose name – and using whose money – they did the possessory acts giving rise to the possessory title. Relations between them will be governed by the contractual arrangements in place.

[150]Having arrived at this conclusion by the application of principle, it is supported by the decision of Mr Owen Rhys sitting as a Deputy Adjudicator to HM Land Registry in Holland & Anr and The Nevill Estate Company Limited (2006) REF/2005/0776 and 0779.

[151]He pointed out at para 32 that it was possible for one or more persons to have joint possession of land, and at para 33 said that, “It seems to me that there is no good reason why the Committee of Management of the Eridge Parish Hall – a body which has charitable status and has consistently managed the Hall as owner since 1958 – should not be regarded as having been in possession of the Hall during that period. The situation is not like the one in the Norwich Corporation v Brown case [where it was held that an inchoate body of persons such as the inhabitants of a parish cannot acquire title]: here, the Committee is in collective and continuous possession of the land throughout the requisite period. The Committee of course can only occupy through the medium of individual committee members, who, as in the normal case of unincorporated associations, may hold land on trust for the association, or [in the case of a charitable trust] simply for the purposes of the association. In the present case the application to the Land Registry was made by three members of the Committee: if their application were to succeed, their title would have to reflect the fact that they held the property not beneficially but on whatever charitable trusts affect the Parish Hall”.

[164]The words added in square brackets are mine, to make the matters referred to at those points clearer.

[165]The Deputy Adjudicator went on to say that an alternative way of looking at the matter was to regard the individual committee members as being in possession, with squatters being able to rely on successive periods of continuous occupation.

[166]He accordingly held, at para 34, that that in the case before him, “the members of the Management Committee, both collectively and individually, shared possession of the Parish Hall” for the period required to obtain title by adverse possession.

[167]The fact the body involved had charitable status does not alter his conclusion, or mine, that, where that is not the position, title to land may be acquired by adverse possession on trust for the unincorporated association of members, on whose behalf title when registered is held.

[168]A recent article by Oliver Radley-Gardner KC and Taylor Briggs, ‘Some Issues in the Law of Adverse Possession: The Problem of Multiple Squatters’ (Falcon Chambers, 2024) considers (in para 9) the decision in Holland to be well founded, and that “What seems likely is that where the unincorporated association has provisions as to ownership structure (such as a trustee system for existing beneficiaries), then the land adversely possessed will be held on that structure, with the trustees from time to time being licensees vicariously feeding the trustees’ possession”. Trustees

[169]In para 49A of the Particulars of Claim, the Claimants contend as a separate issue that the Constitution of the Association was “ineffective to appoint trustees, in that capacity or otherwise,” to hold real property such as the roads on the Estate because: a). The Constitution (Clause 7) indicated only that trustees would be appointed at some future unspecified date, it did not itself appoint them. b). All that was intended to be vested in trustees was “all property of the Association other than monies in an account at a bank…which shall be under the control of the Committee” (Clause 7(e) in the 2004 Constitution; Clause 7(d) in the 1986 Constitution). This cannot have included real property because none was at that time or thereafter ‘property of the Association’. c). None of the required legal formalities were complied with at the time or at any time thereafter, properly to constitute the purported Trustees as trustees of any land, including the Roads. Thus, there was no declaration of trust in accordance with s.53(1)(b) of the Law of Property Act 1925. d). Even if there was a purported transfer of title to the Roads to individuals acting in their personal capacity and not as trustees, such was ineffective for want of compliance with s.53(1)(a) of the same Act.

[170]The Association has not been shown to have been a charitable one. A trust for non-charitable purposes will be void because there is no beneficiary, so that in order to be valid its property must be held on trust for the members: see Re Recher’s Will Trusts

[1972] Ch 256

at p538.

[171]Walton J considered the position of an unincorporated association of members in Re Bucks Constabulary Widows’ and Orphans’ Fund Friendly Society (No 2) [1979]1 WLR 936, where he said at pp 939-940, “If a number of persons associate together, for whatever purpose, if that purpose is one which involves the acquisition of cash or property of any magnitude, then, for practical purposes, some one or more persons have to act in the capacity of treasurers or holders of the property. In any sophisticated association there will accordingly be one or more trustees in whom the property which is acquired by the association will be vested. These trustees will, of course, not hold such property on their own behalf. Usually there will be a committee of some description which will run the affairs of the association, though of course in a small association the committee may well comprise all the members. The normal course of events will be that the trustee, if there is a formal trustee, will declare that he holds the property of the association in his hands upon trust to deal with it as directed by the committee. If the trust deed is a shade more sophisticated it may add that the trustee holds the assets upon trust for the members in accordance with the rules of the association. Now in all such cases it appears to me quite clear that, unless under the rules governing the association the property thereof has been wholly devoted to charity, or unless and to the extent to which the other trusts have validly been declared of such property, the persons, and the only persons, interested therein are the members”.

[172]This represents the practical realities of the position, whether there is a formal trustee or merely a treasurer or some other person(s) holding property on behalf of the association. It echoes the realities of the approach of Megarry J in GKN, as set out in para 80 above.

[173]The Claimants contend that the Association was unable to be registered with possessory title here because the Constitution adopted in 1986 was ineffective to appoint trustees to hold real property such as the roadways (including verges).

[174]However, this does not alter the fact that if the committee acquired title to the roads and verges by adverse possession on behalf of, and for the benefit of, the association of the residents from time to time on the Estate, whom they represented, such land would be held on constructive trust for them even if no trustees had been formally appointed.

[175]In fact, however, those applying for registration of the possessory title had on the evidence been appointed as trustees of the Association at the General Meeting on 28 May 1986. There is no reason why an association should not include the power to appoint trustees in its constitution and they were here elected by the (same) General Meeting as provided for in clause 7(a) of the Constitution.

[176]Clause 7 of the Constitution provided in sub-clause 7(a) that trustees were to be “appointed (or if appointed by the Committee during the year such appointment shall be confirmed) by the members in General Meeting and shall be such persons or a trust corporation as may be determined by the members in General Meeting”, as was done.

[177]Sub-clause 7(d) provided that, “There shall be vested in the Trustees all property of the Association other than monies in an account at a bank or Building Society, or cash, which shall be under the control of the Committee”.

[178]‘Property’ was not defined and there is nothing to suggest that it excluded real property from its ambit.

[179]Furthermore, clause 7(e) provided that, “The Trustees may deal with the property so vested in them by way of sale, mortgage, charge, lease, grant, release, licence or otherwise howsoever as directed by the Association”,

[180]This, by reference to mortgages, charges and leases, indicates that real property was intended to be included – and if Mr Coyle is right that none was then so held, this further supports the conclusion that clause 7(d) was intended to cover all such property that may subsequently be acquired by the Association.

[181]Although it is said in para 49A of the Particulars of Claim that Clause 7 of the Constitution merely indicated that trustees would be appointed at some future unspecified date and did not itself appoint them, as I have indicated, trustees were in fact appointed, in accordance with clause 7 of the Constitution during the same General Meeting on 28 May 1986. Merely because the Association did not then own real property (although it seems to me that it had in fact actually already acquired title to the land by adverse possession, albeit that had not been registered), it seems to me that by clause 7(d) it was intended that any type of property of the Association (other than those of the specified type), whenever acquired, was to be vested in the Trustees.

[182]Mr Coyle submitted that there needed to be a declaration of trust complying with the formalities required by s 53(1) (a) or (b) of the Law of Property Act 1925, which there was not.

[183]However, even were this so, the Association having through its committee acquired title to land by adverse possession, any person authorised by the Association to apply for registration of that title on behalf of the Association (as was done here by resolution of it – the Trustees being nominated persons from among the beneficiary body) would in my judgment be doing so on its behalf, to hold it as constructive, if not express, trustees. Accordingly, it seems to me there is nothing in this point, and it is clear that title has always been held on behalf of the Association.

[184]Although Mr Coyle is correct in saying that if something is not permitted by the Association’s governing constitution, it is ultra vires (see Baker v Jones

[1954] 1WLR 1005

), the Constitution in the present case did provide for trustees to hold property (from which real property was not excluded) on behalf of the Association and it did not prevent constructive trusts from arising.

[185]A further submission made by Mr Coyle is that property cannot be held on trust for the purposes of an unincorporated association unless it is a charity (which the Association has never been): see Re Recher’s Will Trusts

[1972] Ch 256

at p538. However, that does not in my judgment prevent property acquired on behalf of, and for the benefit of, an association of people being held on trust for them as members of the Association (ibid), as was in my judgment the position here.

[186]This is consistent with the comments of Walton J in Re Bucks Constabulary Widows’ and Orphans’ Fund Friendly Society (No 2), above. Even in the absence of any trustee as such being appointed, property acquired by anyone, such as a committee, acting on behalf of the association will be held by its members as constructive trustees. Were they to use it for their own purposes, there is no doubt they would be open to an action for breach of trust.

[187]A further point made by Mr Coyle, for the Claimants, is that having regard to the rule against perpetuities, as it was in force prior to the Perpetuities and Accumulations Act 2009, where “a gift….[is] construed as being one to all members, present and future beneficially it will fail for perpetuity”.

[188]However, a gift to the existing association members subject to their contractual rights and liabilities towards each other as members of the association, which will thereby cease to include them on leaving the association, and will include others becoming members after the gift, will not fail for perpetuity: see per Cross J in Neville Estates v Madden

[1962] Ch 832

at p849:

“it may be a gift to the existing members …. subject to their respective contractual rights and liabilities towards one another as members of the association. In such a case a member cannot sever his share. It will accrue to the other members on his death or resignation, even though such members include persons who became members after the gift took effect. If this is the effect of the gift, it will not be open to objection on the score of perpetuity or uncertainty unless there is something in its terms or circumstances or in the rules of the association which precludes the members at any given time from dividing the subject of the gift between them on the footing that they are solely entitled to it in equity.”

[189]This appears to me to be the position here in relation to the property held on trust for the members of the Association from time to time, which will be so held subject to the express or implied contractual terms that operate between them as members.

[190]Clause 13 of the Constitution enables the Association to be dissolved by the members in a General Meeting at any time and for the assets to be distributed between them. Acknowledgment of title

[191]Section 29(2) of the Limitation Act 1980 provides that, “If the person in possession of the land, benefice or personal property in question acknowledges the title of the person to whom the right of action has accrued—(a) the right shall be treated as having accrued on and not before the date of the acknowledgment; and

(b) in the case of a right of action to recover land which has accrued to a person entitled to an estate or interest taking effect on the determination of an entailed interest against whom time is running under section 27 of this Act, section 27 shall thereupon cease to apply to the land”.

[193]Section 30(1) of the Act provides that, “To be effective for the purposes of section 29 of this Act, an acknowledgment must be in writing and signed by the person making it”.

[192]Reference was made in the Claimants’ oral submissions at trial to the possibility of letters sent to the Tarrant family constituting an acknowledgment of title, with the effect of stopping the limitation period from running, and this was further referred to in the Claimants’ subsequent written submissions.

[193]I can deal with this issue briefly.

[194]First, I cannot see that this has been pleaded by the Claimants in their pleadings, which are there to define the issues, not only for the Defendants, but also for the court (and I would add that it also does not feature in the Claimants’ skeleton argument for the trial).

[195]Second, however, three documents are relied on.

[196]The first is at from the then “Chairman of the Hockering Estate” to a “Mrs Tarrant” (at B789 of the trial bundle) undated on its face but said in the bundle index to have been written on 1 March 1984. Mrs Tarrant is said in the letter to have mentioned to him at a wedding that she was “distant connection” to the Mr Tarrant to whom I have referred (as ‘Tarrant’) in this judgment. It merely refers to “trying to clarify some of the earlier arrangements made my [sic] Mr Tarrant for the roads on the estate” and refers to an understanding that before any transfer was made of them legally his company went into liquidation. The letter concludes by asking for any clues the recipient may have such as to his heirs, solicitors or colleagues.

[197]The second is a copy of the HRC minutes for 12 November 1984 recording the then Chairman as saying that he “could find no trace of Mr Tarrant’s affairs”.

[198]The third is a letter dated 7 October 1986 from the then Chairman to Messrs Beardall Fenton & Armitage, solicitors, referring to a 1913 meeting at which Mr Tarrant “agreed to make over the roads and the benefits of covenants to the residents” which was never implemented. It said the solicitor who proved the will of Mr Tarrant was one Norman Highwood and that it is understood from the Law Society that the firm written to “now carry on the practice” of Messrs Highwood & Smith. The letter then refers to attempts in 1965/66 to trace Mr Tarrant’s personal representatives “with a view to establishing title to the roads, verges etc of the Estate” and to Mr Highwood having said at that time that certain people, whom the letter queried as being the executors, would have “no objection to signing an acknowledgment and disclaimer of any right or title to the Estate roads” (emphasis added).

[199]None of these documents in my judgment amounts to a sufficient acknowledgement under s 29(2) of the 1980 Act of Mr Tarrant’s title. The first of them, making enquiries, is not signed. The second of them merely refers to being unable to trace Mr Tarrant (and is not signed), and the third refers to seeking to establish title to the roads and verges of the Estate, and is not signed, though there is a typed name at the end. It may be added for completeness that there was also in my judgment 12 years adverse possession prior to the 1984 and 1986 documents in any event, so that the paper owner’s title had already by then been extinguished, and he no longer had a right of action, as opposed to the necessary period being stopped from running by an acknowledgment at that time.

[200]The position is also different to that in the case of Secretary of State for Transport v Quest Maidstone Limited (REF/2010/0210) referred to in Mr Coyle’s further submissions of 11 March 2025 in that there what was found to be the acknowledgment was an offer to buy the land which was made to the person who owned it (albeit that the offer was tantamount to being conditional on proof of ownership), thus acknowledging the title he had to it, whereas Mr Tarrant has not in fact been shown, on the balance of probabilities, to have owned the roads and verges at time of the letters (and the first of them itself suggests he did not so by 1984 at any rate). Whether the Claimants are contractually prevented by the constitution of the Association from challenging the Trustees’ title to the roads and verges

[201]Similarly on the Defendants’ side there was a further point raised at trial, although it does not appear to be pleaded. I will consider this also for completeness, although it is not in any event necessary to do so in view of my conclusions above.

[202]Clause 3(d) of both the 2004 and 2023 versions of the constitution provides that “The Association, through the Trustees, has ownership of the roads, footpaths and verges”.

[203]Further, clause 7(e) provides that “The Trustees are the Registered Proprietors of the freehold land comprising the roads, verges, leaf dumps and pathways of the Estate to which the Association has absolute title (title number SY570826)….”

[204]The Defendants contend the Claimants are thereby contractually prevented from challenging ownership.

[205]However, the Claimants do not assert that those named as Trustees of the Association in the Land Register are not, on behalf of the Association, the registered proprietors of the roads including verges, which is conclusive as to the vesting of the roads etc in them whilst that remains so (see s58(1) of the Land Registration Act 2002). Their case is that this occurred, with such effect, by reason of a mistake which they seek to have corrected. I do not consider they are contractually prevented, or estopped, from so claiming.

[206]The claim itself fails, however, for the reasons I have given. Conclusion

[207]In relation to the dispute between the Claimants and the Defendants, in my judgment, for the reasons I have given:(1) the restrictive covenants imposed on the Claimants’ properties known as Upper House and Holly Tree House are not as such enforceable by the Association against the owners of them, as covenants; however,

(2) the proper interpretation of clause 2(a) of the Constitution is that the Association’s object of preserving and maintaining the amenities and privacy of the Estate in accordance with the “covenants affecting the individual properties” is to be read as meaning “in accordance with the covenants imposed on the individual properties” in the same way, and to the extent, that not doing things contrary to them have maintained the residential character, amenities and privacy of the Estate since 1913;

(3) in so far as the restrictions in a covenant imposed on a property, although not directly enforceable by anyone as a covenant, remain relevant to the preservation of the current residential character, amenities and privacy of the Estate they are to be taken into account by the Committee in deciding whether to approve plans. If, taking this into account, they do not approve them, the applicants can be prevented from carrying the intended works out. This is not because the Committee are enforcing the covenants themselves but because they are applying the provisions of the contractually binding Constitution to this effect;

(4) The Claimants have not satisfied the court that the registers of title under which the roadways, including the bellmouths, and verges, on the Estate were registered as a result of a mistake because the applicants were unable to satisfy the requirements for the acquisition or holding of a possessory title.

[208]I will hear representations on the precise form and wording of the order to be made.