Howard James Wretham and Edwina Audrey Ross and Carol Ann Shaw
|England & Wales
|MR JUSTICE DAVID RICHARDS,Mr Justice David Richards
|01 July 2005
| EWHC 1259 (Ch)
|Case No: CH/2005/PTA/0066
|01 July 2005
 EWHC 1259 (Ch)
IN THE HIGH COURT OF JUSTICE
ON APPEAL FROM HM LAND REGISTRY (LR/119/2003)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice David Richards
Case No: CH/2005/PTA/0066
Tom Weekes (instructed by Bance Tickell Commercial) for the Appellant
David Brounger (instructed by Palmers) for the Respondents
Hearing dates: 4 May 2005
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an appeal from a decision of Mr G Greenwood, the deputy solicitor to the Land Registry. It concerns a claim by Mr H.J. Wretham, the appellant, to a possessory title to various outbuildings and pieces of land adjoining a freehold property known as Greywell Cottage, Callow Hill, Virginia Water, Surrey, of which he is the registered proprietor.
Mr Wretham applied to the Land Registry to be registered as the proprietor of seven parcels of land. His application succeeded as regards the whole of one parcel and part of another parcel, but failed as regards the remainder. His appeal relates to the parcel where he partially failed and four of the other parcels. There is no cross-appeal.
Greywell Cottage and the disputed parcels originally formed part of the Greywell Court estate. The estate comprised the main house, a coach house, a gardener's cottage and a large area of undeveloped land. The estate was bought in 1954 by Bedward Properties Limited. It was registered in its name under title SY120553. The houses were sold but the undeveloped land was retained. In November 1954 Captain and Mrs William Warwick bought the gardener's cottage, which is Greywell Cottage. It was transferred out of title SY120553 and registered under title SY127151. It comprises the cottage and a walled garden, and it is bounded on three sides by land retained under title SY120553. It was sold in 1994 by Captain Warwick to Mr Wretham and his then wife. Mr Wretham has been the sole registered proprietor since 2001.
The retained land was transferred by Bedward Properties Limited to its sole or principal shareholder, Mr Marcus Bedward, in 1965. He died in 1968. His executors and trustees were the registered proprietors until 1990, when it was registered in the names of the respondents as the residuary beneficiaries of his estate.
The parcels of land in dispute are on the northern and western sides of the walled garden. They are shown on a plan annexed to the deputy solicitor's judgment and are described by him as follows:
"Parcel "1" is a wooden shed built against the garden wall on the north western side of Greywell Cottage.
Parcel "2" is a brick stable adjoining the wooden shed referred to above, and again built against the garden wall.
Parcel "3" is a corrugated iron shed adjoining the brick stable referred to above, and again built against the garden wall.
Parcel "4" is grassed land on the north western corner of Greywell Cottage.
Parcel "5" is an area of land adjoining the wall on the north eastern side of Greywell Cottage. A pre-fabricated garage now stands on part of this land.
Parcel "6" is described as a timber shed between the garage referred to above and a brick outbuilding within the title to Greywell Cottage.
Parcel "7" is a strip of land surrounding the south and southwest boundaries of Greywell Cottage."
The application succeeded in respect of parcel 6 and that part of parcel 5 occupied by the pre-fabricated garage. It failed as regards the other parcels. Mr Wretham does not appeal the rejection of his application as regards parcel 7.
Mr Wretham relies on the continuous possession of the remaining parcels by Captain Warwick from 1968 and, since 1994, by himself, without the consent of the proprietors of the retained land under title SY120553. On this basis he claims to have acquired title to the parcels in issue by virtue of sections 15(1) and (6) of, and Schedule 1 Part 1 to, the Limitation Act 1980. He relies on possession during a period of at least 12 years ending before 13 October 2003, when the Land Registration Act 2002 came into force, so that the claim is unaffected by the reforms introduced by that Act.
In view of the evidence that until Mr Bedward's death in 1968, Captain Warwick's use of the disputed parcels was in accordance with an oral agreement with Mr Bedward, Mr Wretham does not rely on any possession before Mr Bedward's death. It is accepted for the respondents that the agreement ended at that point and that no similar agreement was made with Mr Bedward's successors in title.
The appeal was heard after the decision in Human Rights Act 1998 was taken by them., but the respondents confirmed that no point on the The alleged adverse possession occurred long before the Act came into force.
Mr Wretham does not dispute any of the deputy solicitor's findings of fact. It is accepted that for the appeal to succeed the court must be satisfied that the deputy solicitor was wrong in law or that he reached a conclusion which, properly applying the law, no tribunal could reasonably have reached.
The principal ground for appeal was that the deputy solicitor had applied an incorrect legal test in determining whether Mr Wretham and his predecessors in title had been in possession of the disputed parcels for over 12 years and whether the paper owners had been dispossessed.
The correct approach to these issues is governed by the decision of the House of Lords in , which approved in large part the judgment of Slade J in . The deputy solicitor was referred to both these authorities and cited passages from them in his judgment.
The legal test applied by the deputy solicitor appears from his consideration of each parcel of disputed land. In respect of parcel 1 he said at p 23:
"I find that the limited use made of the shed did not constitute factual possession. Consequently there were no acts which would have manifested to the paper owner visiting the site the clear intention to exclude them."
A similar approach was applied to parcel 3 at the top of p 25:
"I have to conclude that the use made of it by Captain Warwick was very limited and insufficient to constitute factual possession. Again there were no acts which would have manifested to the paper owner visiting the site the clear intention to exclude them."
As regards parcels 2, 4 and 5 the deputy solicitor's statement of his approach does not refer in terms to whether Captain Warwick and Mr Wretham had been in factual possession of the land, but asked whether the paper owners would be put on notice that there was anyone in possession of the land with the intention of excluding them.
On this appeal Mr Weekes challenged the approach adopted by the deputy solicitor. He should not have asked himself whether the use of the land would have manifested to the paper owner a clear intention to exclude him, but instead the straightforward question whether Captain Warwick and Mr Wretham had exercised exclusive physical control of the disputed parcels for at least 12 years. The requisite intention to possess could be inferred from such physical control. Mr Weekes submitted that the test applied by the deputy solicitor was wrong for two reasons. First, it is not a requirement that the squatter should have an intention to exclude specifically the paper owner. Secondly, it was wrong to formulate the legal test by reference to what the paper owner, or anyone else, might have inferred from a visit to the site.
The leading speech in , with which all the other members of the committee agreed, was given by Lord Browne-Wilkinson. At para 32 he cited with approval a passage from Slade J's judgment in which included the following:
"In the absence of authority, therefore, I would for my own part have regarded the word "possession" in the 1939 Act as bearing the traditional sense of that degree of occupation or physical control, coupled with the requisite intention commonly referred to as animus possidendi, that would entitle a person to maintain an action of trespass in relation to the relevant land; likewise I would have regarded the word "dispossession" in the Act as denoting simply the taking of possession in such sense from another without the other's licence or consent."
At paras 36 and 37, he said:
"36 Many of the difficulties with these sections which I will have to consider are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner. It is said that he has to "oust" the true owner in order to dispossess him; that he has to intend to exclude the whole world including the true owner; that the squatter's use of the land has to be inconsistent with any present or future use by the true owner. In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.
37 It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act. Beyond that, as Slade J said, the words possess and dispossess are to be given their...
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Port of London Authority v Paul Mendoza
...not having had the requisite animus possidendi and consequently as not having dispossessed the owner. 27. Similarly, in Wretham v Ross  EWHC 1259 at paragraph 24 David Richards J The second element of legal possession, the requisite intention, is to be deduced from the squatter's acts......