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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Parshall v Hackney  EWCA Civ 240 (26 March 2013)
Cite as:  3 WLR 605,  WLR(D) 124,  1 Ch 568,  1 CH 568,  15 EG 104,  3 All ER 224,  Ch 568,  2 EGLR 37,  EWCA Civ 240
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR DAVID DONALDSON QC sitting as a Deputy High Court Judge
Claim No CH/2011/0431
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LORD JUSTICE TREACY
| HORACE PARSHALL
|- and -
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MR MARTIN RODGER QC and MS STEPHANIE TOZER (instructed by Piper Smith Watton) for the Respondents
Hearing date: 24th October 2012
Crown Copyright ©
Lord Justice Mummery :
"Under the new system, adverse possession of a registered estate has no effect as such upon the title of the registered proprietor however long that period of adverse possession may have been. However, after 10 years, the squatter may apply to be registered as proprietor. If the registered proprietor objects to the application, it will be rejected except in very limited circumstances. If, before any application to register is made, the registered proprietor takes proceedings to establish his right to possession, those proceedings will be successful except where the squatter would have been entitled to be registered had he applied. Where a squatter's application to be registered is rejected, the registered proprietor must take steps either to evict the squatter or to legitimise the possession within two years of that rejection, or the squatter may re-apply and, provided that he has remained in adverse possession for that two year period, his application will be successful."
"…the register is conclusive as to the ownership of that registered estate…The conclusive nature of such registration protects that registered proprietor…Where time does not run, it is further provided that the title of the person against whom there has been adverse possession will not be extinguished either. In consequence of these provisions, a registered proprietor's title can never be barred by adverse possession." [see s. 96(3) of the 2002 Act]
The 1980 Act
"(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person."
(6) Part I of Schedule I to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned."
"1. Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of dispossession or the discontinuance."
"8. (1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as 'adverse possession'); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date the right of action shall not be treated as accruing unless and until adverse possession is taken of the land."
The 1925 Act
"(1) Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan or General Map shall be deemed to indicate the general boundaries only."
"Possession is never 'adverse' within the meaning of the Act of 1980 if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in 'adverse possession' as against the owner with the paper title."[See also Ramnarace v. Lutchman  1 WLR 1651 at  ]
"65. ..[the first defendant's] status as registered proprietor is subject to the rights of [the claimant] as beneficial owner…It follows that I accept that [the claimant] has sufficient standing to sue for trespass even without seeking rectification of the register because it is the true owner and has a better right to possession: see Chowood Ltd v. Lyall (No 2)  2 Ch 156,163-164."
Judgment of Deputy Adjudicator
(1) The disputed land fell within the area shown on the 1904 plan and formed part of the title to No 29. It was properly registered as such from 1904. In 1980 the Land Registry made the mistake of registering the disputed land in the titles of both No 29 and No 31. That mistake was exacerbated when in 2000 the Land Registry wrongly excluded the disputed land from the title to No 29.
(2) The Parshalls would have been entitled, apart from the possessory title issue, to rectification of the register, there being no injustice in rectifying the error of the Land Registry. It would be unjust not to allow rectification to correct the errors of the Land Registry.
(3) The respondent's predecessors in title intended to possess the disputed land, exercised exclusive possession and control of it for at least 12 years and had established their claim to exclusive possession for at least 12 years prior to 2003 when the 2002 Act came into force. They had a claim to adverse possession, subject to the point that the disputed land was registered in error in the name of the owners of No 31.
(4) However, the owners of No 29 would have been entitled to rectification of the land register. That was a "procedural step", which would have enabled them to seek an order for possession. They therefore had a right to bring an action to recover the disputed land. Time was not prevented from running by the fact of their having to take a prior procedural step of rectification. The result was that the respondent's claim to adverse possession of the disputed land should succeed.
(5) Alternatively, he would have found that owners of No 31 had acquired an easement of parking on the disputed land. He accepted the respondent's contention that that it was possible to prescribe against the land registered in the names of the owners of No 31, because their registered title to the disputed land was held subject to the right of the owners of No 29 to rectify, whereas the parking was in the right of the owners of No 31.
Judgment on first appeal
Discussion and conclusions
The correct questions
(1) Did the owners of No 29 have a right of action in the period 1988 to 2003 against owners of No 31 for recovery of the disputed land? If so,
(2) Did time run in favour of the owners of No 31 as persons in adverse possession of the disputed land?
General boundaries point
Discretion to rectify
Easement to park point
Lord Justice Treacy:
Lord Justice Patten: