|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Iam Group Plc v Chowdrey  EWCA Civ 505 (15 March 2012)
Cite as:  EWCA Civ 505
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
ON APPEAL FROM LAMBETH COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
MR JUSTICE RYDER
| IAM GROUP PLC
|- and -
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr J Osborne (instructed by Gans & Co Solicitors LLP) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Etherton:
The statutory provisions
"(4) The third condition is that—
(a) the land to which the application relates is adjacent to land belonging to the applicant,
(b) the exact line of the boundary between the two has not been determined under rules under section 60,
(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and
(d) the estate to which the application relates was registered more than one year prior to the date of the application."
Facts as found by the Judge
The Judge's conclusion on the condition in paragraph 5(4)(c) of schedule 6.
"This then leaves sub-paragraph (c) and the remaining attack is directed at whether the Defendant reasonably believed that throughout the period of 10 years ending on 15th August 2010 the disputed land belonged to him. By using the word 'reasonably' it is clear the test is intended to be objective. Mr Evans draws attention to the fact that the Defendant's evidence is self-serving. There is a distinct lack of evidence in the form of documents or from the conveyancing solicitors at the material time. Mr Evans submits that Title documents if seen by the Defendant would have alerted him and he should be fixed with the knowledge of his solicitors. Further by 2009 a letter had been sent to the Defendant's solicitors notifying the Defendant he held no interest in the disputed land. Of course in June 2008 the Defendant's own solicitors had notified the Claimant the Defendant was the owner of the upper floors of 26 Rye Lane and that the boundaries between 26 and 26a were not vertical. On the evidence I have found the Defendant was in possession of the disputed land from 1990; that throughout his occupation possession has been exclusive. I have found that he did not construct the access to the disputed land, which access is only via his ground floor shop. I have found that when he purchased the property in 1993 he believed he purchased exactly that which he had rented. There was no material change in layout between 1990 and the date of these proceedings. The Defendant's witnesses confirm the static physical layout at various times during the material period. There were at least two leases of 26 Rye Lane, one in 1992 and a second in 2000. Neither of those tenants challenged the possession by the Defendant of the disputed land and nor did their respective landlords during the terms of the leases. The branch manager of Atlantic Fashions between 2002 and 2008 regarded the disputed land as that of the Defendant even seeking permission from him or one of his staff to use the office. The Area Manager of Atlantic Fashions never challenged the disputed land with what appears to be a flying freehold of 28 Rye Lane over part of the ceiling of 26a. All of these factors would on balance have fortified the original belief held by the Defendant. Mr Evans relies on the correspondence from the solicitors as ending any reasonable belief that the Defendant may have held although Mr Evans stresses that such belief was not accepted by the Claimant. If the Defendant did believe that he owned the land for the reasons I have touched upon, it was in my judgment not unreasonable for him to reject the Claimant's assertions to the company and suggest, as he did, the matter be decided by court. I have found the Defendant to be a compelling and convincing witness. I can fully understand why after a period of 18 years' exclusive possession without disturbance from the lessees and owners of No 26 he held such a belief. Add in the ingredients of the apparent flying freehold of No 28, the physical and somewhat rambling internal appearance above ground floor level of these properties – which I saw for myself – and the long-established exclusive access to the disputed land, the court can be satisfied that the belief held by the Defendant that disputed land belonged to him and that his belief was both genuine and objectively reasonable. I am also satisfied that notwithstanding such correspondence as the Defendant may have seen from the Claimant's solicitors he continued reasonably to hold the belief for the whole of the material 10 years. He may well have believed, as Mr Orme suggested, that the conveyancing Title documents had long lost touch with reality. In those circumstances the Defendant has established the third issue, and he has satisfied the conditions within the Land Registration Act Section 98."
Discussion and Conclusion
Mr Justice Ryder:
Lord Justice Thorpe:
Order: Appeal dismissed