Applying for first registration of title – the danger of allowing passion to prevail over pragmatism

In the First-tier Tribunal case of Dunlop v Romanoff the critical issue was whether the governing description of land conveyed by a 1918 conveyance was the plan drawn in the deed or the area described in words and numbers in the schedule. Chris Maynard successfully argued that the plan was the dominant description and the conflicting description in the schedule should be disregarded.

The applicant farmer sought to register title to a stretch of an unadopted lane (and its adjacent banks) about 90 metres or so in length, leading from a public highway known as Chick Hill in the parish of Pett, in East Sussex, to one of the fields of his farm, called Ellis Field and also to an adjoining field called Lower Chick Hill Field owned by his relatives. His primary case was that, upon the true construction of a deed made in June 1918, the lane was comprised together with other land (including Ellis Field and Lower Chick Hill Field) then conveyed to his grandfather; and that through a succession of subsequent transactions, culminating in a TR1 transfer by the executors of his father’s estate, he had good legal title. His secondary and alternative case was that, if ‘paper title’ was not conveyed to his grandfather in 1918, he had nevertheless acquired title to it by adverse possession.

The respondent owned a house adjacent to the lane. He had applied for planning permission for redevelopment including, amongst other things, construction of a vehicular driveway up the bank between the lane and his garden. The farmer’s contention was that, if he was the owner of the lane and the bank, the householder could not undertake any works to the bank without his permission. On that basis, and on the basis that the driveway would be an unacceptable interference with flora and fauna inhabiting the bank and with a historically significant “sunken lane”, the farmer had vehemently opposed the grant of planning permission.

During the planning application process and following the grant of permission, there appeared a series of posts on Facebook which called upon the public the “save the lane” and to prevent “criminals” from destroying it; and there were some confrontations between the farmer and his associates on the one hand and contractors employed by the householder on the other. Those became the subject of proceedings commenced in the High Court whereby the householder claimed against the farmer an injunction and damages for harassment and obstruction, amongst other things. An application for interim relief in those proceedings was compromised upon undertakings and the parties agreed to stay the substantive claim pending determination of the farmer’s application to the Land Registry for first registration of title.

The householder opposed the application for first registration on the basis that the documentary evidence did not support of the farmer’s claim to title by succession because the 1918 conveyance excluded the stretch of lane in issue and, at that stage, the farmer could not demonstrate the chain of succession of title he relied upon. Furthermore, the matters relied upon in the claim to adverse possession either were factually inaccurate or did not amount to possession adverse to the “true” owner. The resultant dispute was referred by the Land Registry to the First-tier Tribunal.

Following a 4-day hearing in November 2022, the Tribunal Judge made an order directing the Chief Land Registrar to cancel the farmer’s application.

It was common ground that maps made in the 18^th century and subsequently, showed what appeared to be a well-defined road branching off from the main road at Chick Hill, and leading east towards marshes, the oval shaped sandstone outcrop known as ‘Toot Rock’ and the foreshore. In the tithe map of 1839, in contrast to at least two other “private roads”, that road was not shown as a separate parcel from the main road and was given no separate tithe number. In the Ordnance Survey of 1909, it was shown as a distinct parcel numbered 210 and the stated acreage of 0.389a was marked on the map. That map also showed the two dwelling houses which had by then been built to the north of the lane, the southernmost of which was the house now owned by the respondent. It was agreed that the measurement of 0.389 acres was a reliable measurement of the whole of the lane shown, including both the western portion, adjoining Chick Hill, which was the subject of the application for first registration and its eastern portion which continued into the fields beyond.

The Judge found that, at the date of an auction in 1917, which preceded the conveyance in June 2018 to the applicant’s grandfather, both the then legal owner and also the beneficial owner (who had already contracted to buy from the legal owner a very large landed estate of which the land conveyed to the applicant’s grandfather formed only part) at the very least understood themselves and purported to have title to the whole of the road or lane, including the lane in issue in the reference. The Judge observed that, since that was in 1917 and 1918, such assumed or purported title would normally be regarded as a sufficient root of title for first registration now.

Turning to the 1918 conveyance, the Judge observed that it recited the prior agreement for sale between the vendor and the purchaser, then the further sub-sale agreement between the purchaser and the sub-purchaser (the latter being the applicant’s grandfather) to “convey the hereditaments so sold as last aforesaid to the Purchaser”.

There were then 3 parcels clauses, referring in turn to lands coloured pink, blue and green on the conveyance plan. The relevant clause for matter before the Tribunal was the first one:

“First All those pieces of land and Marsh Pastures situate in the Parish of Pett in the County of Sussex and comprising in the whole One hundred and sixty three acres one rood and eight perches or thereabouts which are more particularly delineated on the plan drawn in the margin of these presents and thereon coloured pink and are described in the first Schedule hereto together with the messuage or farmhouse known as Lunsford Farm and the cottages and other buildings thereon”

Part 1 of The First Schedule comprised a long list of parcels with columns for their number on the plan, description and approximate acreage. Amongst these was: “210 Road .389”. Two other parcels, numbers 205 and 214, were described as “part” of those OS numbers; but parcel 210 was not.

On the conveyance plan, the red line bounding the land coloured pink had been drawn across the road marked as 210, excluding from the red edged pink land, the western portion of 210, being the lane which was the subject of the reference to the Tribunal.

By the time of the hearing, the applicant had twice changed his position on the route by which his grandfather’s title had devolved to him and it was accepted that, on the latest iteration of his case, if the 1918 conveyance included the lane, the application was entitled to succeed.

The Judge said that, as Mr. Maynard had submitted, from just one look at the plan, even without holding it in one’s hand on a site visit, it was clear that the lane was excluded from the land shaded pink by the red edging. He also accepted Mr. Maynard’s submission that the description of the land conveyed was qualified by the phrase “or thereabouts”, then followed by “which are more particularly delineated”, so that the initial acreage description must be taken not to be exhaustive and definitive, and subject to more particular delineation on the plan; and he considered that the margin for error or variation imported by the words “or thereabouts” was sufficient to accommodate not just marginal variations in the total of what was to be conveyed (“163a 1r 8p or thereabouts”), but also variations or reductions within the several OS parcels named.

The Judge was not persuaded that consideration of the various subsequent documents of conveyance of Lunsford Farm and its land cast any definitive light either way on construction of the 1918 conveyance. They all took one back to that conveyance and the same conflict of the words versus the plan. In relation to a purported grant of a right of way over the lane in 1933 by the applicant’s grandfather, the Judge accepted Mr. Maynard’s submission that the words used were ambiguous as to whether they were original words of grant of an easement, or merely words conveying the benefit of an existing easement. In any event, even if taken as a purported grant, it might at best be evidence that the applicant’s grandfather then subjectively believed that he owned the lane.

On the same day in 1918 as the principal conveyance relied upon, but before it in point of time, a conveyance was also made of the house and garden which since came into the ownership of the respondent. It was made between the same vendor and purchaser, but with the respondent’s predecessor in title as the sub-purchaser. In addition, however, the applicant’s grandfather had also been a party to that deed and the wording seemed to assume that he was already the beneficial owner, and would shortly become the legal owner, of the lane over which the conveyance granted a right of way in favour of the house and garden. The applicant relied heavily on this conveyance as an aid to a different construction of the conveyance to his grandfather.

The Judge observed that it included a positive covenant which ‘touched and concerned’ that road, so that its benefit could potentially attach to such estate and interest as the new owner of the house then had in that land. The Judge decided this contemporary conveyance was relevant and admissible as evidence of the (equitable) title of the applicant’s grandfather. But he also held that it did not assist the applicant’s case on whether the road or lane had been actually then conveyed in law to his grandfather.

The Judge held that, under basic principles, ‘contract merges into conveyance’, and so it was the latter which was the key title document. A claim that there had been a mistake in way the plan had been drawn in the conveyance to the applicant’s grandfather, which meant that mistakenly it had failed to include all that was contracted for, could have been the subject of a claim for rectification but no such claim had been brought then, or since. Even so, the Judge thought there may be a number of possible alternative explanations for why it was drawn in that way, and it was impossible to know which was correct.

The omission of the lane from the land conveyed did not seem to the Judge obviously to produce an absurd or arbitrary result. Therefore, there was not the standard of certainty required to make a “corrective interpretation” of the conveyance to the applicant’s grandfather. Accordingly, he was required to give full weight to the “dominant description” of the plan.

Turning to the adverse possession claim, the picture which eventually emerged from the evidence available at the hearing, both on paper and in particular after cross-examination of witnesses, was of considerably less extensive enclosure of the lane than pleaded in the applicant’s statement of case. From about the 1960s to about 2013, the Judge found there was no fixed or permanent gate at all at the road end of the lane. Temporary barriers had been used from time to time when the lane was used for the movements of livestock but 90% of the time the lane was wholly open to the public highway. A more permanent modern ‘field gate’ had been erected later but not until at least 2013. Sometimes livestock would be ‘held’ in the lane while certain operations (dagging, drenching, footrot treatment and so on) were carried out on them but, although reasonably regular, this was not a constant activity, and would take no more than a matter of minutes or at most hours on each occasion.

The Judge preferred the evidence of the householder over that of the farmer with regard to fencing along the bank next to the householder’s garden. He found that the applicant had put a new section of barbed wire fencing, and some yellow spray paint markings, next to the householder’s fence in that area in 2019; but that was a new construction, intended as an assertion of a boundary in that location.

The Judge accepted that the farmer had also carried out various acts of maintenance but those were no more than what any user of a way might or would do to keep it in good order.

In conclusion, the Judge said,

If the issue ever arose, there could be little doubt that the Applicant’s property has a full right of way over the lane for agricultural if not all purposes. For many parties, having such a right of access and use, and the ancillary rights which come with it (including maintenance, repair and preventing obstruction or interference with the right) would be more than enough.

For his own reasons, however, the Applicant sought to obtain a registered title to the lane. In my judgement he has failed to establish such a title, by either of the routes relied upon.

Commenting on the outcome, Chris Maynard said,

This was an excellent result for the client albeit one long-delayed by, amongst other things, the impact of the Covid-19 pandemic upon the Courts and Tribunals Service.

I pay tribute to David Riordan, of Whitehead Monckton solicitors, who took the construction point early in correspondence, before the involvement of counsel. David also took the point, very early on, that under the terms of the 1918 conveyance to his client’s predecessor, his client was entitled to full right of way over the lane anyway, which necessarily included access from the lane into his client’s property. Although huge volumes of documents were produced by the applicant to bolster his case, in the end none of them were sufficient to overcome that initial analysis and, when exposed to the sunlight of forensic enquiry, his case on adverse possession evaporated like the morning dew.

Unfortunately, the applicant’s passion prevailed over pragmatism in this case and, as a consequence, the respondent has given up his home, the redevelopment has been stalled for 3 years, and avoidable legal costs have been incurred.

 

By Chris Maynard